' SH. ABDUL RASHID, J.---Gulzar son of Anwar Caste Jappa aged 28 years and Abbas son of Nusrat caste Jappa aged 20 years residents of Chak No,222 Tehsil Chiniot (appellants) along with Ghulam Muhammad caste Hanjra and Nosher son of Ghulam Muhammad caste Hanjra residents of Chak No, 240/JB were tried in case F.I.R. No,747, dated 20-10-1994 under sections 302, 324, 109/34, P.P.C. At Police Station Langrana District Jhang and vide judgment dated 28-10-1997 Ghulam Muhammad and Nosher co-accused were acquitted and Gulzar and Abbas appellants were convicted and sentenced as under:--
(1) Gulzar appellant was convicted under section 302(b)/34, P.P.0 and was sentenced to death as Tazir subject to confirmation by the High Court and to pay a compensation of Rs,20,000 to the legal heirs of the deceased, in default in the payment whereof to further suffer imprisonment for six months.
(2) Abbas appellant was convicted under section 302(b)/34, P.P.0 and was sentenced to imprisonment for life and a compensation of Rs,20,000 to the legal heirs of the deceased, in default in the payment whereof to further suffer imprisonment for six months.
(3) Both Gulzar and Abbas appellants were also convicted under settion 324 read with section 34, P.P.0 and were sentenced to 10 years' imprisonment along with fine of Rs,20,000 each, in default of payment of which to suffer. Imprisonment for six months.
2. Feeling aggrieved by their conviction and sentence the appellants have filed Criminal Appeal No,679 of 1997 whereas Murder Reference No,277 of 1997 has been received for confirmation of the sentence of death sentence awarded to Gulzar appellant. The appeal and the Murder Reference are being disposed of jointly by this judgment.
3. Briefly stated the facts of the prosecution Case set out in F.I.R. Exh.P.B. Lodged by Wajid Ali son of Nazar Muhammad caste Handlana resident of Chak No,240-JB of Police Station Langrana District Jhang are that on 20-10-1994 he along with Azhar Iqbal son of Muhammad Anwar (deceased), Ahmad Latif son of Jalal Khan and Munawar son of Karim Bakhsh all residents of Chak No,240-JB had gone to visit their land and while they were returning to their house and on the way reached near the house of Ghulam Muhammad at about 5 p.m. Abbas appellant armed with .12 bore gun and Gulzar appellant armed with 7-MM rifle emerged out of the house of said Ghulam Muhammad and raised Lalkara that they would not spare Wajid Ali complainant and Azhar Iqbal deceased and then Gulzar appellant fired with his rifle hitting Azhar Iqbal on the left side of his chest and the bullet passed through and through who fell down on the ground. Abbas appellant then fired with his gun at the complainant who luckily escaped the fire shot. The complainant and the two P.Ws. Ran to save themselves whereas the appellants also ran away while firing in the air. Azhar Iqbal deceased died at the spot. The motive for the occurrence alleged in the F.I.R. Was that the complainant party had inveterate enmity with the appellants and many cases of murderous assault had been lodged by both the parties against each other which were pending in the Courts and that about four days prior to the occurrence both the appellants had threatened to kill Azhar Iqbal deceased and the complainant at bus stand Handlana and in pursuance of the said threat the appellant had committed the occurrence. Leaving the dead body in the custody of Ahmad Latif and Munawar P.Ws. Wajid Ali complainant went to the Police Station and he narrated the occurrence to Ahmad Ali Haral S.-I. Who recorded F.I.R. Exh.P.B. As per his dictation which was read over and explained to him who signed the same in token of its correctness.
4. Ahmad Ali Haral S.-I. Then reached the place of occurrence along with complainant. He examined the dead body prepared its injury statement Exh.P.Q. And inquest report Exh.P.R. And entrusted the dead body to Haqnawaz Constable No,1205 for its post-mortem examination. The Sub-Inspector then carried out the spot inspection and he prepared rough site plan without scale Exh.P.S.; he collected bloodstained earth from the place of occurrence and made it into a sealed parcel vide memo. Exh.P.C. He found three empties of. Rifle P.1 to P.3 lying at the place of occurrence which were taken into possession and made into a sealed parcel vide memo. Exh.P.D.; one .12 bore empty P.4 was also collected from the place of occurrence which was taken into possession and made it into a sealed parcel vide memo. Exh.P.E. Wajid Ali and Latif P.Ws. Had attested both the said memos. The Sub-Inspector recorded the statements of Ahmad Latif, Munawar, Muhammad Aslam and Haqnawaz witnesses under section 161, Cr.P.C. The latter two P.Ws. Revealed that on the same day they were sitting in the house of Ghulam and Nosher accused where Gulzar and Abbas accused were also present being armed with rifle and gun respectively and that Ghulam and Nosher accused had informed the appellants that Wajid Ali complainant and Azhar Iqbal deceased had gone to their lands and soon they will be returning to their house and as they were source of fame to all of them there was good opportunity to kill them to which both the appellants agreed. After recording their statements the offence under section 109, P.P.0 was also added. The Sub-Inspector handed over the three sealed parcels to the Moharrir Head Constable of the Police Station for the safe custody.
5. On 21-7-1994 at about 7-35 a.m. Haqnawaz Constable produced the dead body of Azhar Iqbal deceased before Dr. Ejaz Haider Khan Medical Officer who conducted post-mortem examination on the same and found the following injuries on the dead body:--
(1) A rounded wound of half (1/2 c.m.) in diameter on the left side of front of chest. It was about 5 c.m. Above and outer to the left nipple. The margins were blackened, lacerated and inverted. This was entry wound caused by fire-arm weapon. There was another oval shaped wound, 3-1/2 c.m. 2- 1/4 c.m. On the back of right chest, about 11 c.m. Outer to the midline and was in middle part. The margins were lacerated and averted. This was corresponding exit wound caused by fire-arm weapon.
' The Medical Officer found the scalp and vertebra along with their contents healthy. The third rib on the front of left chest and 7th and 8th ribs on the back of right chest were found fractured corresponding to the Injury No,1 . The pleura, right and left lungs and heart with pericardium were also found to be injured. The injury to the heart was through and through along with the injured aorta. All other organs were found to be healthy. In the opinion of the Medical Officer cause of death was haemorrhage and shock due to the injuries to the vital organs which were ante-mortem and grievous in nature and had been caused by fire-arm. The injuries were sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was immediate and between death and post-mortem examination was within 12 to 18 hours. Exh.P.Q. Is correct carbon copy of the post-mortem report and Exh.P.Q./1 is the sketch depicting the seat of injuries and they both are in the handwriting of Medical Officer and signed by him.
6. The Medical Officer gave the last worn clothes shirt P.11, Shalwar P.12 and vest P.13 of the deceased to Haqnawaz Constable who produced them before Ahmed Ali Haral S.-I. P.W.10, which were taken into possession vide memo. Exh.P.H. The S.-I. Directed Ghulam Dastagir Draftsman to prepare the site-plan who on the pointation of the eye-witnesses prepared site-plan Exh.P.A. And its copy Exh.P.A./1. The Sub-Inspector gave his notes in red ink on the same.
7. Ahmad Ali Haral S.-I. Arrested Gulzar and Abbas accused appellants on 16-11-1994 who while in police custody led to the recovery of rifle. P.5 along with Rexene bag P.6 containing ` 10 bullets P.7/1- 10 from his residential house which were taken into possession and made into a sealed parcel vide memo. Exh.P.F. On the same day Abbas accused also led to the recovery of .12 bore gun P.8 with Rexene bag P.9 containing 8, .12 bore cartridges P.10/1-8 from his residential house which were also taken into possession vide memo. Exh.P.J. The Sub-Inspector got issued warrants of arrest and proclamation against Ghulam Muhammad and Nosher accused and then subsequently they were arrested on 21-1-1995.
8. The sealed parcel containing 3 bullet empties of rifle P.1 to P.3 was sent to the Office of Forensic Science Laboratory and after recovery of rifle P.5 from Gulzar accused the same was also sent to the Office of Forensic Science Laboratory whose report Exh.P.B. Confirmed that the bullet empties P.1 to P.3 had been fired from 7-MM rifle P.S.
9. Ahmad Ali Haral S.-I. Completed the investigation and submitted report under section 173, Cr.P.C.
Against the appellants and their co-accused.
10. The appellants and their two acquitted co-accused were charged under sections 302, 324, 109/34, P.P.0 which was read over and explained to them to which they pleaded not guilty and claimed to be tried.
11. The prosecution had produced Ghulam Dastagir Draftsman P.W.1, Wajid Ali complainant P.W.2, Munawar Ali eyewitness P.W.3, Haqnawaz Constable P.W.4, Riasat Ali Constable P.W.5, Haqnawaz P.W.6, Muhammad Aslam P.W.7, Asad Ali S.-I. P.W.8, Dr. Ejaz Haider Khan P.W.9, Ahmad Ali S.-I. P.W.10, Fayyaz Ahmad Moharrir Head Constable P.W.11, Ghulam Murtaza Head Constable P.W.12, Ghulam Muhammad Constable P.W.13 and Muhammad Aslam Constable P.W.14 in support of its case.
12. The D.D.A. Gave up the remaining P.Ws. And tendered in evidence report of Chemical Examiner regarding blood-stained earth Exh.P.T., report of Serologist Exh.P.U., report of Forensic Science Laboratory Exh.P. V. And closed the prosecution case.
13. The statements of the appellants under section 342, Cr.P.C. Were recorded and all the incriminating prosecution evidence was put to them which they repudiated and they stated that they were innocent and that they had been falsely implicated on account of enmity and that the occurrence was unwitnessed.
14. Upon conclusion of the trial both the appellants were convicted and sentenced as mentioned above. Feeling aggrieved they have filed this appeal.
15. It has been argued by the learned counsel for the appellants that no doubt there is long- standing enmity between the parties but there was no immediate compelling cause or motive on the part of the appellants to attack the deceased and the complainant and that the prosecution version that four days prior to the occurrence the appellants had threatened the complainant and Azhar Iqbal deceased to kill them at Bus Stand Handlana has been disbelieved by the trial Court and that the long-standing enmity besides being a cause to launch an attack is a double-edged weapon as it could serve as a basis for false implication of the appellants or assigning false role to them or exaggerating the roles played by them. The learned counsel for the appellants further argued that Abbas appellant had not caused any injury to the deceased or any of the P.Ws.
Despite the fact that he was alleged to be carrying a .12 bore gun and in case his first fire shot had missed he could have repeated the fire shot on the complainant and the P.Ws. And the fact that he did not do so goes to show that either he was not present at the scene of occurrence or was not carrying fire-arm with him and that he had been assigned a false role because of enmity between the parties. The learned appellants' counsel does not contest the conviction of Gulzar appellant but merely pleads that as there was enmity between both the parties, the deceased and Gulzar accused suddenly accosted each other and something transpired between them due to which Gulzar accused only fired single shot and did
16. The prosecution version about motive is that there was long-standing enmity between the complainant party and the appellants-accused and many criminal cases stood registered against them on the report of opposite party which are pending in different Courts and that 415 days prior to the occurrence both the appellants at Bus Stop Handlana had threatened Wajid Ali complainant and Azhar Iqbal deceased. The later portion of the motive alleged by the prosecution and brought on the file through the statement of Wajid Ali complainant has been disbelieved by the trial Court.
However, the first portion of the motive that there is long-standing enmity between both the parties had been believed as the same had also been stated by both the appellants in their statements under section 342, Cr.P.0 as well, therefore, the enmity between the appellants and the complainant side is an admitted factor. This enmity between the parties is a double-edged weapon as it besides furnishing a ground to the accused to launch attack on the complainant side can also be a source for false implication or exaggeration of the role of the appellants by the complainant side. Due to enmity between the parties it would be quite natural for the eye- witnesses who are both closely related to each other and to the deceased to exaggerate the role of the accused or to ascribe a false role to Abbas appellant who was alleged to be armed with .12 bore gun at the scene of occurrence and was further alleged to have fired at the complainant.
However, Wajid Ali complainant was not hit with the fire shot and thereafter Abbas appellant did not repeat the fire shot despite the fact that he was in a position to do so and nothing prevented him from repeating the attack. The Sub-Inspector had collected one .12 bore empty Cartridge from the place of occurrence and subsequently he also recovered .12 bore gun P.9 from Abbas appellant but cartridge empty and the gun P.9 had not been sent to the Forensic Science Laboratory to ascertain the fact that cartridge empty had been fired from the gun P.9, therefore, except for the evidence of Wajid Ali complainant and Munawar P.W. Who both are related inter se and as well as with the deceased and are inimical to Abbas appellant, no corroborative evidence is available on the file against the said appellant. In case Abbas appellant was present at the scene of occurrence being armed with .12 bore gun and even if his first fire shot had missed on the complainant there was nothing to prevent him from making second fire shot on the complainant or other P.Ws. And the fact that he did not resort to the said course of action casts serious doubt on his presence at the scene of occurrence. He appears to have been implicated in this case by the complainant and the eye-witnesses on account of enmity between the parties. We are, therefore, of the opinion that Abbas appellant has been wrongly convicted by the learned trial Court. In the circumstances of the case he is entitled to benefit of doubt. By accepting the appeal to the extent of Abbas appellant we set aside his conviction and sentence and acquit him of the charges. He is in jail and be released forthwith if not required in any other case.
17. As already observed there is enmity between the parties. The deceased Azhar Iqbal and the appellant Gulzar suddenly accosted each other and something transpired between them which made Gulzar appellant to fire at Azhar Iqbal deceased. Gulzar appellant did not repeat the fire shot at the deceased. The enmity between the parties is long-standing but the immediate motive which had been alleged by the complainant side that accused had threatened the deceased to kill 4 days prior to the occurrence at Bus Stand Handlana could not be proved by the prosecution and has been disbelieved by the trial Court, therefore, the prosecution had failed to prove as to which factor had immediately prompted this occurrence and this factor can be considered while deciding the quantum of sentence as held in Jehanzeb and another v. The State (2003 SCM R 98) and Mirza Zaheer Ahmad v. The State (2003 SCM R 1164). We are of the opinion that the sentence of death awarded to Gulzar appellant in the circumstances of the case is rather harsh. We, therefore, by maintaining his conviction under section 302(b), P.P.0 alone convert his C death penalty into life imprisonment. He shall pay a compensation of Rs,2,00,000 which will be payable to the legal heirs of the deceased. We further direct that till the said compensation is paid Gulzar appellant will not be entitled to any benefit of section 382-B, Cr.P.C. Or to benefit of any reduction in sentence permissible in past and in future. However, only after payment of compensation of Rs,2,00,000 to the legal heirs of the deceased he will become eligible to the benefit of section 382-B, Cr.P.C. And the other reductions in sentence.
18. Resultantly, the Murder Reference is answered in the negative.
19. Rifle P.5 along with bullets and gun P.9 along with cartridges shall be confiscated to the State.