' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,327 of 2002 filed by Waheed and Manzoor Ahmad, who along with Sultan, Mumtaz, Ghulam, Muhammad Younis and Maqbool Ahmad, faced trial in case F.I.R. No,214, registered at police station Ahmad Yar on 27- 11-2001, for offences under sections 302/34/109, P. P.C. Before learned Additional Sessions Judge, Pakpattan Sharif, who after conclusion of trial, vide his judgment dated 25-4-2002 while acquitting rest of the accused, convicted Waheed appellant under section 302(a)/34, P.P.C. And sentenced him to death with compensation of Rs,50,000 or in default six months' S.-I. Manzoor Ahmad was convicted under section 302(b)/34, 'P.P.C. And sentenced to imprisonment for life with fine of Rs,50,000 or in default six months' S.-I. He was given benefit of section 382B, Cr.P.C.
2. Murder Reference No,378 of 2002 for confirmation or otherwise of death sentence of Waheed appellant shall also be decided through this single judgment.
3. Brief facts of the case as narrated in F.I.R. Exh.PH by Noor Ahmad father of Riaz Ahmad deceased are that about three months prior to the occurrence Mst. Nikki daughter of the complainant was married with Waheed resident of Beli Kalan. On the day of occurrence, the complainant along with Saeed Ahmad and Noor Ahmad son of Sajwara was on the way to Beli Kalan in order to see his daughter Mst. Nikki. At about 4-00 p.m. When they reached near Beli Dilawar, Riaz Ahmad son of the complainant came there and was busy in talking, suddenly Waheed and Manzoor Ahmad, both armed with .30 bore pistols, reached at the spot on a motorcycle and Waheed caused successive fires which hit Riaz Ahmad on his chest and abdomen. Riaz Ahmad fell down. When the complainant step forward, Manzoor Ahmad fired in the air and said that whosoever would come forward he would be done to death. Thereafter the accused went away from the scene of occurrence on their motorcycle. Riaz Ahmad died at the spot.
4. The motive behind the occurrence was the previous enmity due to which both Waheed and Manzoor committed murder of Riaz Ahmad with conspiracy hatched by Ghulam Muhammad, Sultan, Younis, Mumtaz and Maqbool.
5. After registration of formal F.I.R., the investigation of the case was taken over by Muhammad Akbar, S.-I./P.W.-10, who conducted through investigation, arrested the accused and after effecting recovery of weapons used during the occurrence, while placing rest of the accused in column. No,2 of the Challan, sent Waheed and Manzoor Ahmad to face trial.
6. At the trial, the prosecution in order to prove its case produced 10 witnesses in all and after tendering in evidence the reports of Chemical Examiner Exh.PL, Serologist Exh.PM and that of Forensic Science Laboratory EA. PN closed its case. The accused in their statements recorded under section 342, Cr.P.C. Pleaded their innocence and false implication. They did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court, while acquitting rest of the accused, convicted and sentenced the appellants as stated above.
7. The learned counsel for the appellants after having read the entire prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. And other relevant material available on record in support of this appeal have contended that both the witnesses were not only related to the deceased but they were also chance witnesses, who could not explain their presence at the time of occurrence; that according to prosecution version the deceased lost his life due to injuries caused by .30 bore pistol while according to medical evidence a pellet was recovered from the body of the deceased which clearly shows that both the P.Ws. Were not present at the time of occurrence; that there was previous history of ill will and enmity between the parties and appellants were roped in this case merely on suspicion; that it was stated in the F.I.R. That the occurrence took place in Beli Dilawar while before the learned trial Court they stated that in Bell Kalan; that it was an un-witnessed occurrence and after the occurrence the witnesses were called and the case was registered against the accused; that delay in sending the dead body to the mortuary supports the fact that it was an un-witnessed occurrence; and that both the eye- witnesses also tried to involve five other accused, who were acquitted, and the witnesses were not believed to their extent.
8. On the other hand, the learned counsel for the complainant submits that it was a day light occurrence; that the matter was reported to the police with promptitude; that both the P.Ws. Were present at the time of occurrence; that ocular account was supported by the medical evidence and corroborated by the motive; and that there was no chance of substitution.
9. The learned Additional Prosecutor General supports the judgment passed by the learned trial Court.
10. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely.
11. In order to prove its case, the prosecution produced two eye-witnesses namely Noor Ahmad/complainant P.W.5 (father of the deceased) and Noor Ahmad son of Sajwara P.W.6, who is son-in-law of P.W.5. As far as the occurrence is concerned, both the P.Ws. Have given very consistent, convincing and coherent account. They have corroborated each other on almost all the material points, as far as the appellant Waheed is concerned. According to learned counsel for the appellants, both the P.Ws. Were chance witnesses and that the complainant lived at a distance of three miles from Beli Kalan. However, the witnesses have plausibly explained the reason behind their presence at the time of occurrence by stating that they were going to meet Mst. Nikki daughter of complainant, who was married with Waheed appellant about three months prior to the occurrence. There was nothing unusual. Being father to go to the house of his daughter in the company of his son-in-law. It is not denied that Mst. Nikki was not daughter of the complainant or that Mst. Nikki was not married with Waheed appellant three months prior to the occurrence. The complainant had given his daughter in Nikah to Waheed appellant so there was no occasion for him to involve his son-in-law in a false case. As far as P.W.6 is concerned, it was not even suggested to him that any previous enmity existed between him and the accused. It has been brought on record of the case that Riaz Ahmad-deceased had murdered Allah Ditta, father of Waheed-appellant, thereafter Waheed and others murdered Saeed son of the complainant and brother of Riaz Ahmad-deceased. Compromise was effected in both the murder cases. It is manifest that in order to strengthen the compromise effected between the parties the complainant married his daughter Mst. Nikki with Waheed-appellant. After giving hand of his daughter to Waheed it was most unlikely that the complainant would involve him in a false case and substitute him for the real killer. The occurrence took place at 4-00 p.m. While the matter was reported to Muhammad Akbar, S.-I./P.W.10 at police station, which was at a distance of 8 Km, at 5- 00 p.m. Within an hour. In case the witnesses would not have been present the F.I.R. Could not have been recorded with promptitude.
12. The medical evidence fully supports the prosecution case, as the deceased received six fire- arm injuries on his person. The argument of the learned counsel for the appellants that the P.Ws.
Dishonestly improved their statements by giving number of fires and seats of the injuries is without any force, as it was stated in the F.I.R. That Waheed repeatedly fired at the deceased, so it cannot be said that the P.Ws. Improved their statements. The facts given in the F.I.R. Are never exhaustive and the prosecution case does - not start and end with the story given in the F.I.R. The necessary details do come out while the statement is recorded by the learned trial Court, as in this case. No importance can be given to the statement of the doctor that while exploring injury No,3 he recovered pellet from under the skin in the presence of convincing, trustworthy and coherent direct evidence.
13. As far as the recovery of pistol is concerned we will not like to place reliance on it in the absence of recovery of empty and its tallying with the recovered weapon.
14. As far as the motive is concerned, it is in evidence that Allah Ditta, father of Waheed-appellant was murdered by Riaz Ahmad prior to this occurrence and thereafter Saeed brother of Riaz Ahmad was murdered by Waheed and others in retaliation. Though compromise was effected between the parties yet the fact remained that it was Riaz, who had committed murder of father of Waheedappellant, who kept grudge in his heart.
15. In the above noted circumstances, in our opinion the prosecution has successfully proved its case against Waheed-appellant through direct evidence, which was supported by medical evidence and corroborated by the circumstances of the case including motive. After the murder of Allah Ditta, father of appellant Waheed, Saeed bother of deceased was done to death. The revenge had been taken and the matter had been compromised between the parties. The complainant forgetting and foregoing the murder of his son gave his daughter Mst. Nikki in Nikah to Waheedappellant, so there was no justification for Waheed to take life of Riaz Ahmad. He acted in a cruel manner by causing repeated fires at the deceased. No mitigating circumstance exists in his favour. Resultantly, this appeal to his extent in dismissed and the judgment passed by the G learned trial Court to his extent is upheld with slight modification that the conviction would be deemed to be recorded under section 302(b), P.P.C. And not under section 302(a), P.P.C. Murder Reference is answered in the affirmative and sentence of death is confirmed.
16. Now coming to the case of Manzoor Ahmad, according to prosecution case, he aimlessly fired in order to deter the witnesses from rescuing the deceased. Undeniably, he did not aim his pistol at any of the witnesses or the deceased. The allegation of firing is not supported by collection of any empty from the spot. H Furthermore, though the pistol has been shown to have been recovered from him but the same was not sent to Forensic Science Laboratory. He had no motive to join hands with Waheed-appellant, thus, while extending benefit of doubt to him, we allow this appeal to his extent. Judgment passed by the learned trial Court to his extent is set aside. He is acquitted of all the charges. He is on bail, his bail bonds are cancelled and the sureties are discharged.