' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,120 of 1994 filed by the State through Assistant Advocate General against the judgment dated 4-1-1994 whereby the learned trial Court acquitted Muhammad Arshad and Muhammad Yahya respondents along with Amar Sohail and Kashif Sohail, who faced trial in case F.I.R. No, 126, registered at Police Station Banni, Rawalpindi, on 16-3-1990 for offences under sections 302/ 397/109/34, P.P.C.
2. Criminal Revision No,24 of 1994 filed by . Mshkoor Ahmad complainant against acquittal of Muhammad Arshad, Muhammad Yahya, Amar Sohail and Kashif Sohail-respondents therein shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Exh.PJ/1 are that on 16-3-1990 at about 6-00 p.m.
Mashkoor Ahmadcomplainant went to meet his sister, who was married with Muhammad Mushtaq resident of Mohallah Imam Bara. At that time at the roof of the house of Muhammad Mushtaq and at the roof of his neighbours the kites were being flown. Amar and Kashif his neighbours were uttering obscene remarks when the kites were cut. Muhammad Mushtaq forbade them. Amar and Kashif mind it and extended threats of dire consequence, from the roof of their house. Meanwhile, Kashif called Muhammad Yahya and his brothers Muhammad Arshad and Muhammad Amjad.
Muhammad Yahya had a dispute with Muhammad Mushtaq over the pigeons. Thereafter they came in the street of the complainant and started abusing them. Thereupon the complainant along with his brother-in-law Muhammad Mushtaq and his brother Muhammad Ijaz came out from the house. In the meantime, Sh. Inam Ullah also came there and asked the accused to leave the spot but Muhammad Yahya and others said that they would teach a lesson to Muhammad Mushtaq for not giving money of the pigeons and for teasing Amar etc. ' Muhammad Yahya started firing suddenly and the complainant party saved themselves by scattering in the street. Muhammad Arshad took out pistol from his fold of his trousers and straightaway fired at Mushtaq, which hit him on the left side of his chest on the heart. Muhammad Amjad and Muhammad Yahya were firing indiscriminately.. Muhammad Ijaz tried to rescue Muhammad Mushtaq but Muhammad Yahya fired at him on his back. Muhammad Amjad kept on extending threats while standing at the corner of the street. Thereafter the accused fled away from the .Scene of occurrence while firing. While the injured were on the way to Hospital, Muhammad Mushtaq succumbed to the injuries.
4. It is stated in the F.I.R. That due to dispute over the pigeons the accused committed the murder of Muhammad Mushtaq at the instance of Amar and Kashif.
5. On receipt of information Ch. Iftikhar Ahmad, Inspector/P.W.14 reached Civil Hospital, Rawalpindi, recorded the statement of Mshkoor Ahmad-complainant and sent the same to the police station for registration of formal F.I.R. Thereafter he took over the deed body, prepared injury statement Exh.
PL and inquest report Exh.PM. He also prepared injury statement of Ejaz injured. He visited the spot and took into possession bloodstained earth from the place of occurrence vide memo.. Exh.PC. He also collected two empties P.6/1-2 from the scene of occurrence vide memo. Exh.PD. On 28-3-1990 he arrested Muhammad Arshad, Amar Sohail, Kashif. Sohail and Amjad alias Muhammad Yahya.
On 30-4-1990 he also arrested Muhammad Tariq. On 27-3-1990 Muhammad Arshad, while in custody, led to the recovery of pistol, which was taken into possession vide memo. Exh.PF. On the same day, Amjad alias Yahya led to the recovery of pistol, which was taken into possession vide memo. Exh.PE. After completion of investigation, the Investigating Officer after declaring Muhammad Tariq to be innocent sent up the accused to face trial.
6. At the trial, the prosecution in order to prove its case produced 14 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.P0, Serologist Exh.PP and that of Forensic Science Laboratory Exh.PQ closed its case. The accused in their statements recorded under section 342, Cr. P. C. Pleaded their innocence. They did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court acquitted all the accused.
7. After having read the entire prosecution evidence and findings of the learned trial Court, the learned. Assistant Advocate General assisted by learned counsel for the complainant in support of this appeal against acquittal submits that the findings of the learned trial Court are speculative and artificial because the respondents have been acquitted on the grounds that there was allegation of indiscriminate firing against the acquitted accused but only two crime empties were recovered from the spot; and the medical evidence was disbelieved by the learned trial Court only on the ground that no led bullet was recovered from the body of Ijaz injured P.W. Further submits that the other finding of the learned trial Court is that the led was found divided in two parts. While further advancing his arguments the learned Assistant Advocate General submits that it was a case of promptly lodged F.I.R.; that the ocular account is consistent with reference to the material points and is corroborated by the medical evidence especially the statement of Ijaz injured P.W.
Who has fully supported the prosecution case; that there are specific allegation of firing at the deceased and the injured P.W. That there was no reason for false implication of the respondents; and that the conclusion drawn by the learned trial Court is perverse and is not according to the evidence recorded by it.
8. On the other hand, the learned counsel appearing on behalf of the respondents have submitted that during pendency of this appeal Muhammad Yahyarespondent had died and so far as this appeal to the extent of Muhammad Arshadrespondent is concerned, they have contended that the respondent was acquitted on 4-1-1994, thirteen years have passed and no useful purpose would be served by converting the acquittal of the respondent into conviction; that he is enjoying the presumption of innocence; that unless the impugned judgment is proved perverse and against the record, it cannot be set aside; that both Mashkoor Ahmad P.W.12 and Muhammad Ijaz P.W.13 are interested witnesses and no independent witness has been produced, hence, no reliance can be placed on their testimony; that recovery of pistol at the instance of Muhammad Arshad cannot be a reason for converting the acquittal into conviction; that there is negative report of fire-arm expert, so no reliance can be placed thereon; that there is conflict between the ocular account and the medical evidence also; that Dr. Muhammad Sohail P.W.8, who conducted post-mortem examination, had stated that he recovered two metallic pieces from the body of the deceased; that the allegation is only of one fire and it was not a. Case of repeated shots; that keeping in view the condition of soft tissues, there was no question of two bullets, which were recovered from the body of the deceased during post-mortem examination; that the allegation against he respondent and his co-accused Muhammad Yahya, who has died, is of indiscriminate firing but only two empties were recovered from the place of occurrence; that the complainant and the injured witness Muhammad Ijaz also made supplementary statements; and that the Investigating Officer admitted that in order to fill the lacuna in the prosecution case he had recorded the supplementary statements. In support of their respective contentions they rely upon the cases reported as 1982 SCM R 420, 1992 SCM R 96, 1997 SCM R 1964, 1998 SCM R 1513 and 2001 YLR 1410.
9. We have heard the learned counsel for the parties at length and scanned the entire evidence minutely. In the instant case the occurrence had taken place on 16-3-1990 at 6-00 p.m., the matter was reported to the police at Civil Hospital, Rawalpindi, at 7-40 p.m. And the formal F.I.R. Was registered at 7-55 p.m. On the same day, so it was case of promptly lodged F.I.R. In all, there were four accused. Two of the accused namely Ajmar Sohail and Kashif Sohail, who were the accused of abetment, have been acquitted by the learned trial Court. There were two respondents against whom this criminal appeal was filed by the State. One of the respondents namely Muhammad Yahya has already died. This appeal to his extent has become infructuous. Now we are left with the case of Muhammad Arshad-respondent only.
10. The deceased in this case is Muhammad Mushtaq, while Muhammad Ijaz is injured P. W., who is brother of the deceased and the complainant of the case is Mashkoor Ahmad P.W., who is brother- in- law "Sala" of the deceased. Sh. Innam Ullah had been given up by the prosecution. Dr. Muhammad Sohail P.W.8 had conducted post-mortem examination of the deceased on 17-3-1990 at 11-00 a.m. Time between injury and death was within half an hour and the time between death and post-mortem was 15 to 20 hours. Muhammad Arshad-respondent was arrested on 20-3-1990.
Pistol was got recovered at his instance on 27-3-1990. From the perusal of first information report and the statements of the eye-witnesses we are of the opinion that there was no background of hostility or enmity between the parties. The occurrence had taken place in the month of March at 6-00 p.m. , so it can be said that it was a broad daylight occurrence. The star witness in this case, in our considered opinion, is Muhammad Ijaz, who received injuries at the hands of Muhammad Yahya-respondent, who has already died, while the vital shot, on the chest of Muhammad Mushlaq-decedsed, is attributed to Muhammad Arshad- respondent. The eye-witnesses are the natural witnesses. There is no reason to disbelieve their testimony, which is supported' by the medical and corroborated by the recovery evidence, so we are of the opinion that the prosecution has proved its case against Muhammad Arshad- respondent, who is alive, beyond any shadow of doubt. However, there are some mitigating circumstances in favour of Muhammad Arshad- respondent for awarding lesser sentence i.e, the occurrence had taken place on 16-3-1990, the impugned judgment was passed on 4-1-1994 now we are going in the last month of 2006, so it can be said that sixteen years have been passed when the occurrence had taken place and twelve years have been elapsed when the impugned judgment was announced and in the same year this appeal was preferred by the State before this Court. Moreover, it was not a case of premeditated murder. It is a case of single shot. The occurrence had taken place over flying of kites and exchange of vulgar remarks, so we are of the view that the impugned judgment regarding Muhammad Arshad-respondent was not according to the evidence produced by the prosecution and it was also not according to safe administration of criminal justice. Hence, we convert the acquittal of Muhammad Arshad- respondent into conviction and award him conviction under section 302(b)/34, P.P.C. He is sentenced to imprisonment for life with benefit of section 382-B, Cr.P.C. He is directed to pay compensation amounting to Rs, 1,00,000 under section 544-A, Cr.P.C. Or in default he would undergo six months S.-I. He is also convicted for causing injures to Muhammad Ijaz under section 324/34, P.P.C. And sentenced to seven years R.I. With fine of Rs,50,000 or in default six months R.I. Both the sentences would run concurrently. He shall be sent to jail to serve out his sentence.
11. With the acceptance of this criminal appeal filed against acquittal of Muhammad Arshad- respondent by the State, Criminal Revision No,24 of 1994 filed by Maskhoor Ahmad-complainant questioning the acquittal of Muhammad Arshad and Muhammad Yahya has become infructuous and to the extent of 'Amar Sohail and Kashif Sohail-respondents it stands dismissed. State .