1. ' BASHIR A. MUJAHID, J.--Rehmat Ali, Akbar. Ali, Muhammad Younas sons of Labhay Khan and Waris alias Mehnga son of Muhammad Younas have challenged judgment, dated 20-7-1998 passed by the learned Addl. Sessions Judge, Ferozewala whereby they after having been tried in private complaint titled Hameedan Bibi v. Rehmat Ali and others under sections 302/324/109/148/149/452, P.P.C. For murder of Liaqat Ali and launching murderous assault at Muhammad Sarwar and Rehmat Ali, appellant was convicted under section 302(b), P.P.C. And sentenced to death. While Akbar Ali, Muhammad Younis, Waris, Yousaf and Zulfiqar along with Rehmat Ali were convicted under section 324, P.P.C. For causing injuries to Muhammad Sarwar and sentenced to imprisonment for 10 years each with a fine of Rs,10,000 each. All of them were further ordered to pay Rs,30,000 each to the legal heirs of deceased Liaqat Ali under section, 544-A, Cr.P.C. All the sentences were ordered to run concurrently.
2. ' Muhammad Rafiq was acquitted of the charge through the same judgment.
3. ' The brief facts of the case are that Mst. Hameedan Bibi, P.W.2 got F.I.R. No,26, dated 2-2-1995 under sections 302/ 324/148/149, P.P.C. Registered at Police Station, Narang on the basis of her statement Exh.P.A., stating therein that she was resident of village Muslim Alvan and had two sons namely, Muhammad Sarwar and Liaqat Ali (deceased) and three daughters. Her husband died about 20/22 years ago. Rehmat Ali, Akbar Ali , Muhammad Younis sons of Labhay Khan were her real brothers and also resident of the same village. Rehmat Ali engaged his daughter Mst. Robina with Liaqat Ali son of the complainant but the engagement was broken due to differences between the family, on which, Mst. Robina eloped with Liaqat Ali and they got themselves married without consent of their parents. Rehmat Ali got case registered for abduction of his daughter. Police recovered Mst. Robina and handed over her to Rehmat Ali. Liaqat Ali remained in jail for more than one year and when he released on bail he started living in Lahore due to party friction. Mat. Robina again left her father's house and joined Liaqat Ali and they started living at Lahore as husband and wife. On 2-2-1995 the complainant along with her son after attending the Court hearing at Ferozewala went to the village in the evening. At about 6 p.m. Muhammad Sarwar, her other son was going from shop and was talking to Muhammad Shafi son of Muhammad Ismail and Muhammad Sadiq in the street outside of his house, where Rehmat Ali armed with Carbine, Akbar Ali armed with Carbine, Muhammad Younis armed with .12 bore gun, Waris alias Mehnga son of Younas armed with .12 bore gun, Muhammad Yousaf son of Muhammad Rafiq armed with .12 bore gun, Zulfi son of unknown armed with Carbine were standing outside the house of Akbar Ali. When Muhammad Sarwar turned towards his house. Rehmat Ali raised Lalkara to the effect that Muhammad Sarwar, and Liaqat Ali be done to death and to take revenge of his honour. On which, Muhammad Sarwar started running towards the home and the accused followed. Muhammad Yousaf fired with .12 bore at Muhammad Sarwar hitting on his back side who fell down after receiving the injury. Thereafter the accused entered into the house of the complainant where Liaqat Ali her other son was coming after hearing the fire-shot. When Rehmat All fired at him with Carbine hitting on his abdomen, on which, he fell down. The complainant and the P.Ws. Raised Lalkara and the accused fled away from the spot.
4. Liaqat Ali and Muhammad Sarwar were taken to Civil Hospital, Narang in injured condition. Liaqat Ali her son succumbed to the injuries on the way to hospital while Muhammad Sarwar was admitted in hospital. According to the medical report Muhammad Sarwar was injured by fire-arm which was dangerous to life.
5. ' After recording the statement, Muhammad Iqbal, S-I. P.W.9 initiated the investigation and he arrived at the hospital and took the dead body of Liaqat Ali into possession and prepared the inquest report through memo. Exh.P.D. And handed over the dead body for post-mortem examination. He, thereafter, arrived at the place of occurrence and took into possession blood stained earth through memo. Exh.P.B. And one empty cartridge through memo. Exh.P.C. He also took into possession last worn clothes of the deceased produced before him through memo. Exh.P.E. He recorded the statements of the P.Ws. Under section 161, Cr.P.C. On 25-2-1995 he arrested Zulfi and Yousaf. On 28-2-1995 other accused also surrendered themselves before the Investigating Officer.
6. Thereafter, the investigation was transferred to Liaqat Ali, Inspector P.W.10. On 11-3-1995 Yousaf accused led to the recovery of Carbine P.6 which was taken into possession through memo. Exh.P.H.
7. Zulfiqar alias Zulfi led to the recovery of .12 bore gun P.7 which was taken into possession through memo. Exh.P.J. The other persons were declared innocent and no recovery whatsoever was effected from them and he, submitted the report under section 173, Cr.P.C. According to his investigation, Rehmat Ali, Akbar Ali, Muhammad Younas and Waris alias Mehnga were declared innocent on the basis of plea of alibi.
8. ' The trial Court framed the charge which was denied by the accused/appellants and they claimed trial.
9. ' During the trial the prosecution examined as many as 12 witnesses to prove the guilt of the accused.
10. ' The medical evidence was furnished by Dr. Mahmood Aslam Hameed, P.W.3 on 3-2-1995 at 11-30 a.m. Conducted the post-mortem examination on the dead body of Liaqat Ali son of Muhammad Anwar and found the following injuries on his body:---
(1) Eight fire-arm wounds of entry in an area 11 x 6 c.m. On the front and mid of abdomen across the mid line just close to the umblicus, each measuring .7 c.m. In diameter. There was blackening and tattooing present.
(2) A fire-arm wound of entry .7 c.m. In dia on right abdomen front and upper 1 c.m. Below the ribs.
11. There was blackening and tattooing around the wound.
12. ' Dr. Tahir. Islam Chaudhry, P.W.7 on 2-2-1995 medically examined Muhammad Sarwar son of Muhammad Anwar and found the following injuries on his person:---
(1) Nine fire-arm entry wounds in an area about 8 x 14 c.m. On back middle of chest, each wound measuring 3/4 x c.m. To 3/4 x 1.25 c.m. The track going deep, primarily from right to left. The whole area of chest swollen and wound not probed. The patient was having severe dyspnoea, hypotension. General condition of the patient was very serious and dangerous to live and the patient was referred to Mayo Hospital, Lahore. The corresponding holes were present on the clothes of the patient. After first aid management the patient was referred to Mayo Hospital, Lahore. The injury was kept under observation and it was caused with fire-arm within a duration of 2 to 3 hours and any subsequent progress etc. Was to be notified later on receipt of notes from the Refereal Unit or whatever the case could be.
13. ' Mst. Hameedan Bibi P.W.2 was complainant of the case, she supported the version of the F.I.R. As well as of the complaint she filed after having found the accused nominated in the F.I.R. Innocent during the investigation. Muhammad Sarwar son of Mst. Hameedan Bibi and brother of deceased Liaqat Ali was examined as P.W.1. He was injured at the hands of Muhammad Yousaf accused in the same occurrence. Muhammad Arif, FC P.W.4 had escorted the dead body of Liaqat All for post- mortem examination. Muhammad Ilyas P.W.6 was recovery witness of Carbine P.6 which was recovered from Yousaf and was taken into possession by the Investigating Officer through memo.
14. Exh.P.H. Muhammad Iqbal, HC P.W.11 kept the sealed parcels in police Malkhana for safe custody.
15. Abdul Raheem Kazmi, P.W.12 prepared the site plan of the place of occurrence.
16. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.N.
17. ' The statements of the accused were recorded under section 342, Cr.P.C. Rehmat Ali in reply to question No,4 as to why the case against him and the P.Ws. Deposed against him, he stated as under:--- ' "The object of involvement me in this case by the complainant and the P.Ws. Is that I was a complainant in the above said abduction case and in order to save Liaqat Ali and herself Hameeda Bibi complainant etc. Who were accused in that case got me falsely involved along with my relatives. I faced the investigation of this case and was found innocent by the Investigating Officer.
18. ' The other accused also claimed innocence and false involvement.
19. ' The trial culminated into conviction of the appellants as mentioned above. Rehmat Ali has filed Criminal Appeal No,751 of 1998 against his conviction and sentence. While Akbar Ali, Muhammad Younas sons of Labhay Khan and Waris alias Mehnga son of Muhammad Younas have filed Criminal Appeal No,964 of 1998. The trial Court has sent up Murder Reference No,267 of 1998 for confirmation of death sentence of Rehmat Ali, appellant. All the matters are being decided by this judgment together.
20. ' Learned counsel for the appellants has argued that during successive investigations all the appellants were declared innocent and it was found that Yousaf and Zulfiqar had caused injuries to the deceased and Muhammad Sarwar, P.W., therefore, the case against the appellants is doubtful. It is further argued that only Rehmat Ali has been attributed single fire shot caused to Liaqat Ali deceased. The remaining two accused have not been attributed any active role and have been convicted merely on the ground that they were present at the spot.
21. ' Learned counsel for the State and complainant have opposed the appeals and supported the impugned judgment.
22. ' We have given our anxious consideration to the contentions raised at the bar and also perused the record.
23. ' First of all we would take case of Akbar Ali, Muhammad Younas sons of Labhay Khan and Waris alias Mehnga son of Muhammad Younas. They were although stated to be armed present at the spot but they did not cause any injury to the deceased or Muhammad Sarwar, P.W. The statement of eye-witnesses Mst. Hameedan Bibi, P.W. Has not been corroborated from A any other independent source. They are inimical as well as interested witnesses, therefore, their statements cannot be relied upon. Akbar Ali and Muhammad Younas happended to be brothers of Rehmat Ali and of complainant and Waris son of Muhammad Younas. They have not been attributed any injury to the deceased or to the P.W. Or their participation in the occurrence. They have been stated to be present at the spot by Mst. Hameedan Bibi, P.W.2 and Muhammad Sarwar, P.W.1 and it has also been stated that they have been supporting Rehmat Ali in Hudood case as against Mst.
24. Hameedan Bibi. They have not played any active role their case is distinguishable from co- accused Rehmat Ali. Nothing has been recovered from their possession. By mere their presence at the spot will not make them guilty, therefore, we extend benefit of doubt in their favour, Their Criminal Appeal No,964 of 1998 is allowed. The conviction and sentence of Akbar Ali, Muhammad Younas sons of Labhay Khan and Waris alias Mehnga son of Muhammad Younas is set aside and they are acquitted of the charge. They are on bail, therefore, their sureties are discharged.
25. ' As far as case of Rehmat Ali, appellant is concerned, he has been attributed fatal injury having been caused to Liaqat Ali, deceased who was fired at inside the house of the complainant. The complainant is mother of Liaqat and being inmate her presence at the spot is natural. Earlier Muhammad Sarwar was injured although in the street who stated that there was no wall intervening his house and the lane, and he could see the occurrence. He has supported the complainant for causing fatal shot by Rehmat Ali to the deceased Liaqat Ali from Carbine and this injury medical evidence. Although he took the has been duly corroborated by the plea of alibi and found innocent during the investigation. Liaqat Ali, Inspector/ P.W. 10 who had investigated the case and declared the accused innocent but Rehmat Ali, appellant failed to prove his defence plea before the trial Court. He had not produced any witness in support of his version, therefore, we find that Rehmat Ali accused/appellant caused the fatal shot. He is responsible for the death of Liaqat Ali, so his conviction is maintained.
26. ' As far as his sentence is concerned, it was a case of family honour. According to Mst. Hameedan Bibi, complainant, Mst. Robina daughter of Rehmat Ali was abducted by Liaqat Ali, deceased and litigation between the parties was still pending and Liaqat Ali had shifted his residence from village to Lahore due to party friction but on the day of occurrence he came to the village and Rehmat All might have acted under provocation on seeing Liaqat Ali, deceased in the village. He caused only one shot and has not C repeated the fire shot although deceased was at his mercy. He was also declared innocent during the successive investigations on his plea of alibi. The weapon of offence was also not recovered from his possession, therefore, keeping in view the entire circumstances of the case we find that these are the mitigating circumstances to alter his sentence from death to imprisonment for life which meet the ends of justice. The punishment of compensation or sentence in lieu thereof is maintained. Benefit of section 382-B, Cr.P.C. Will also be available to the appellant.
27. Resultantly, Criminal Appeal No,751 of 1998 is dismissed with the above modification.
28. ' Murder Reference No,267 of 1999 is answered in the negative.