' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,613 of 2001 filed by Muhammad Amin-appellant, who, vide judgment, dated 23-8-2001 handed down by the learned Additional Sessions Judge, Vehari, stands convicted and sentenced for offence under section 302(b), P.P.C. To death plus payment of rupees one lac, as compensation, to the legal heirs of the deceased, in default whereof to suffer further S.I. For six months; and Criminal Appeal No, 649 of 2001 filed by Dost Muhammad complainant, questioning the legality of acquittal of Ghulam Yasin and Muhammad Sharif, co-accused/respondents. Murder Reference No,606 of 2001, seeking confirmation or otherwise of death sentence, shall also be replied through this single judgment.
2. Briefly, the facts of the case, as narrated by Dost Muhammad-complainant in the F.I.R. (Exh.PB), are that on 14-12-1995 at 9-0 a.m., while his brother Hafiz Abdul Rahman and nephew Nazar Hussain on their way to Chak No,183/WB to participate in some function there reached at Morr Chak No,211/WB on Pakka Road, when Muhammad Amin-appellant armed with Sota, Ghulam Yasin armed with rifle and Muhammad Sharif armed with Sota, who had ambushed near the place of occurrence, came across them. Muhammad Amin gave a Sota blow, hitting Abdul Rahman on the right side of his head, whereupon Abdul Rahman fell down. Muhammad Sharif gave Sota blow which hit him on the left side of this abdomen. The blow given by Muhammad Amin hit Abdul Rehman on his eye lids. Then Ghulam Yasin fired a shot from his rifle in the air. The hue and cry raised by Nazar Hussain attracted the complainant, who was working in the nearby fields, and Muhammad Shafi, on seeing whom the accused fled away from the scene of occurrence. Abdul Rahman was taken to Civil Hospital, Mailsi and was given some treatment there but was ultimately referred to Nishtar Hospital, Multan, where he was admitted in Emergency Ward. Abdul Rahman succumbed to the injuries in the said hospital at about 8-00 p.m. The occurrence was witnessed by Muhammad Shafi and Nazar Hussain.
3. The motive was that a few days earlier to the occurrence, a fight took place between the children of Abdul Rahman and that of the accused and the matter was patched up. The accused party kept grudge in their mind and committed the murder of the deceased.
4. After registration of formal F.I.R., on 15-12-1995, Alam Sher, S.-I./P.W.7., inspected the spot, recorded statements of the P.Ws., under section 161, Cr.P.C. And prepared rough site-plan Ex.PG. On the same day, he went to Nishtar Hospital, Multan, where he prepared the injury statement (Exh.PH) and inquest reported (Exh.PJ) of the deceased and got the post-mortem examination. After post- mortem examination, the last worn blood stained clothes of the deceased, i,e, shirt, Chaddar and turban, vide memo. Exh.PD. All the accused were arrested on 19-12-1995. On 30-12-1995, the investigation was transferred to Fazal Hussain Shah, S.-I./P.W.6. On 31-12-1995, Muhammad Amin appellant, while in custody, led to the recovery of Sota P-4, buried in the earth underneath the culvert of a watercourse. The same was taken into possession vide memo. Exh.PE. After completion of investigation, the accused were challaned to face the trial. Thereafter, the accused in their statements under section 342, Cr.P.C. Pleaded their innocence and false implication on account of enmity. The appellant produced Muhammad Shafi as D.W.1. In his defence.
5. Learned counsel for the appellant in support of this appeal submit that on the same evidence two co-accused have been acquitted by the trial Court; that the motive about the fight taken place 8/9 days earlier to the occurrence between the children of the parties was not proved; that the I.O. Did not probe into the matter that the complainant party was going to attend Chehlam on the day and time of the occurrence; that the recovery of Sota was effected on 31-12-1995, after sixteen days of the occurrence, and that the Sota remained lying there is unnatural; that the conduct of the P.Ws. Is most unnatural because according to them, they were cutting cotton sticks with Tokies but they did not try to save their brother when the attack was being made; that it is an unseen occurrence. Learned counsel submit that if the submissions regarding acquittal of the appellant do not find favour of this Court, then it is case of single shot and the motive shrouded in mystery, as what happened immediately before the occurrence, no one knows; that according to the prosecution case, the deceased was taken to THQ Hospital, Mailsi, and the doctor gave a Chit to take Abdul Rahman to Nishtar Hospital, Multan, but that Chit has not been placed on record; that the complainant party is known by its criminality.
6. Learned counsel for the State assisted by the learned counsel for the complainant, submits that the delay in lodging the F.I.R. Has been explained therein; that it was a daylight occurrence and the parties were known to each other, so there was no question of mistaken identity; that two eye- witnesses produced by the prosecution fully supported the prosecution version; that it is not a case of single blow; that the statement of D.W.1. Muhammad Shafi should be ignored; that he was won over by the accused party; that Muhammad Shafi/D.W.1., who was named as eye-witness in the F.I.R., did not make any application to any higher authority from the date of occurrence till the date he made the statement as D.W. That his statement was not correctly recorded by the police and that he was not an eye-witness; that the ocular account is corroborated by medical evidence; that it is a case of single accused. The learned counsel, thus, supports the impugned judgment.
7. We have heard the learned counsel for the parties at a great length and gone through the record with their assistance.
8. The occurrence in this case took place on 14-12-1995 at 9-0 a.m. The matter was reported to the police after about twenty four hours, i,e, on 15-12-1995 at 8-05 a.m. The distance between the place of occurrence and the Police Station was only nine miles. Here were three A accused in this case and two accused namely Ghulam Yasin and Muhammad Sharif have been acquitted by the trial Court. Abdul Rahman is the deceased in this case. He is the real brother of the complainant Dost Muhammad and father of Nazar Hussain P.W. The two accused, who have been acquitted, amongst whom Muhammad Sharif was armed with a Sota and caused a blow on the left side of abdomen of the deceased. Learned counsel for the State and the complainant have vehemently argued that second blow was also caused by the appellant Muhammad Amin, hitting the deceased on his eye-lids. We would like to reproduce Injuries Nos. 1 to 3 hereunder:--
(1) A lacerated stitched wound on the left side of head measuring 8 c.m. In length. Distance of the wound from left ear was 9 c.m.
(2) A bluish black bruise on the front of left middle abdomen up-to mid line of abdomen measuring 9 c.m. x 3 c.m.
(3) A bluish black discoloration of both upper lids.
' Injury No,3, which is bluish black discoloration of both upper lids, and according to the learned counsel for the complainant, the same was caused by a Sota blow. This injury, in our opinion, could not have been caused by a Sota blow. In our opinion there was only one injury, which the appellant caused on the person of the deceased. As far as the implication of the appellant in this case, we have no doubt in our mind as both the parties reside adjacent to each other; there was no previous background of enmity; it was a daylight occurrence; the eye-witnesses fully implicated the appellant. However, there are following three mitigating circumstances in favour of the appellant:- -
(I) that P.W.2 Dost Muhammad, during cross-examination at page 31 of the Paper Book replied that before the occurrence abuses were exchanged between the deceased and the appellant;
(II) that 8/10 days prior to the occurrence, fight took place between the children of both the parties but due to the intervention of the respectable, the matter was patched up between the parties and no untoward incident took place between the parties though they were neighbourers to each; and
(III) that it is a case of single blow and no background of enmity between the parties.
9. In this view of the matter, though we maintain the conviction of the appellant under section 302(b), P.P.C. But convert the death sentence to imprisonment for life with benefit of section 382-B, Cr.P.C. The death sentence is not confirmed.
10. With the above modification in sentence, this appeal is dismissed. Criminal Appeal No,649 of 2001 filed by Dost Muhammad, complainant, against the acquittal of Ghulam Yasin and Muhammad Sharif is also dismissed. The murder reference stands answered in the negative.