JUDGMENT KHALIL AHMAD, J. - The Appellants Nazir Ahmad, Bashir Ahmad, Liaqat Ali, Muhammad Iqbal, Ijaz Ahmad, Shaukat Ali, Rasulan Bibi and Riasat Ali were tried in case F.I.R. No. 103/97, 22.11.1997 under Sections 302, 324, 148, 149, PPC registered at Police Station Baddomaihi, District Narowal, by the learned Additional Session Judge, Narowal, who vide judgment dated 31,7.2002 acquitted Bashir Ahmad, Nazir Ahmad, Rasulan Bibi, Ijaz Ahmad and Shaukat Ali by giving them benefit of doubt and convicted the appellants Muhammad Iqbal, Liaqat Ali and Riasat Ali as under:- Muhammad Iqbal. Liaqat Ali and Riasat Ali.
Under Section 324, PPC Convicted and sentenced to five years' R.I. Fine Rs. 25,000/' each with benefit of Section 382- B, Cr.P.C, In default of payment of fine to further undergo three months'S. I.
Each.
Convicted and sentenced to death twice with a compensation of Rs. 1,00,000/- (Rupees one lac only) each to be paid to the legal heirs of the deceased Amanat Ali and Muhammad Abbas u/s. 544-A, Cr.P.C, or in default thereof to further undergo one year's S.I.
2. Feeling aggrieved by the above-said conviction and sentence, the appellant Riasat Ali filed Crl.
Appeal No. 1436-2002. The appellants Uaqat Ali and Muhammad Iqbal filed Crl. Appeal 1748-2002 whereas the learned* Trial Court has sent a Murder Reference of confirmation or otherwise of the death sentence. The complainant filed Crl. Appeal No. 1584/2002 against acquittal of ljaz Ahmad, Shaukat Ali, Nazir Ahmad and Bashir Ahmad. The complainant also filed Criminal Revision No. 864- 2002 for enhancement of sentence awarded to accused/appellants Muhammad Iqbal and Uaqat Ali. All these matters are being disposed of by this single judgment.
3. Briefly, the facts of the F.I.R. Ex. PA recorded on 22.11.1997 at about 11.30 a.m. As narrated by the complainant Muhammad Rafique son of Muhammad Latif are that Bashir Ahmad the paternal uncle of the complainant sold a common fish pond of the village, for Rs. 20,000/- whereupon Abbas brother of the complainant, Uncle Amanat and Riasat Ali Cousin, made a protest before Bashir Ahmad and demanded that as the fish pond was a common property of the village, therefore, the sale proceeds be spent for common welfare. This dialogue (demand) continued for 2/3 - days; that on 22.11.1997 at about 9.30 a.m. The complainant alongwith his brothers Abbas, Zulfiqar, Uncle Amanat cousin Riasat Ali and father Muhammad Latif was sitting in their open Haveli in front of their house. Riasat Ali son pf Nazir Ahmad, Ijaz Ahmad and Shaukat Ali sons of Bashir Ahmad, all the three equipped with .12 bore guns, Iqbal, Uaqat Ali, sons of Nazir Ahmad, Nazir Ahmad son of Sooda, Rasulan Bibi wife of Nazir Ahmad, all the three empty handed came over there. Bashir Ahmad, Nazir Ahmad and Mst. Rasulan Bibi made a' lalkara to teach them a lesson for demanding sale proceeds of the fish pond and to kill them. Riasat Ali, accused opened his gun fire which landed upon chest and left arm of Abbas, ljaz Ahmad also opened his gun fire hitting Amanat Ali on his left thigh. Shaukat Ali accused also' opened fire hitting Riast Ali on his abdomen.
Iqbal and Uaqat inflicted sota blows upon the head of Zulfiqar. Abbas and Amanat succumbed to the fire-arm injuries there and then. The accused also injured father of the complainant making reckless firing and raising lalkaras and thereafter fled away. The occurrence was witnessed by father of the complainant as well as Zulfiqar in addition to the complainant. Hence the F.I.R.
4. After the registration of case, police started investigation, visited the place of occurrence, inspected the spot, collected the blood-stained earth v/c/e memo. Ex.PB, took into possession double barrel rifle .12 bare P-1, prepared rough site-plan of place of occurrence Ex.PI, recorded the statements of PWs under Section 161, Cr.P.C. The police after completing the formalities submitted the report under Section 173, Cr.P.C.
5. Formal charge was framed against the accused, to which they pleaded innocence and claimed trial. In order to prove its case prosecution produced nine witnesses in all.
6. " The accused ljaz Ahmad, Muhammad Iqbal and Uaqat Ali to prove their plea of alibi produced Abid Mehmood as DW1 who stated that according to his attendance register for the month of November, 1997 Muhammad Iqbal remained present on duty on 22.11.1997 from 6.00 a.m. To 2.00 p.m. Uaqat Ali Khan, DW.2 stated that Uaqat Ali was their employee and according to their attendance register Liaqat Ali was working as Helper on 22.11.1997 he remained on duty from 8.00 a.m. To 4.00 p.m. Nazir Ahmad appellant stated that the actual facts of the case have been suppressed, distorted and twisted by the PWs in order to suppress and conceal their contribution to the start of the occurrence. The actual facts are that there is a pond in the village near our house and there was $ lot of fish in it for many year the practice was that the sale proceeds of the fish of the said pond were utilized for the common cause of the village till two years before the occurrence but in the preceding year of occurrence Amanat Ali. Deceased in defiance to the previous practice, usurped the sale proceeds of the fish and despite the protest of the co-villagers paid to head to it. During the year of the occurrence. Amanat Ali deceased was again bent upon usurping the sale proceeds of the said fish despite the continuous protest and advice of us and the co-villagers but Amanat Ali was not prepared to listen to any one over the said issue. Rather, he sent his nephew Abbas deceased to bring his brothers Muhammad Rafique PW and Zulfiqar and Riasat Ali, PW from their respective factories situated in Raiwind/Lahore to village Baryar to show force and to commit aggression against those, mentioned above, who were persuading Amanat Ali, deceased, not to usurp the sale proceeds of the fish t>f the pond and wanted him to spend the proceed on the common cause of the village. Said Abbas Ali brought Muhammad Rafique PW, Zulfiqar Ali PW and Riasat Ali PW to village Baryar on the morning of 22.11.1997. When a campaign was on to convince Amanat AII to spend the said sale proceeds for the common cause of the village and for that purpose, he with his wife, brother, first cousin Bashir Ahmad were busy in the said campaign. Amanat Ali was joined by Muhammad Rafique PW. Riasat Ali PW. Abbas deceased and Zulfiqar Ai, PW became rash and aggressive in their behaviour. The negotiation for the said purpose were on when in the heat of moment Amanat Ali committed a highly provocative act when he upturned his Chaddar (Lion clothe) and showed his sexual organs to all present there including women-folk of his family and started dancing aggressively and provocatively and shouted "uproot my penis if your could". Abbas deceased and Riasat Ali PW also joined him in that provocative act of naked dance. His son Riasat Ali in the meantime had also reached there. He and his wife Rasulan Bibi and his brother Bashir Ahmad and others did their best to stop Amanat Ali deceased, Abbas deceased and Riasat Ali, PW from their highest immoral, indecent and obnoxious act but of no avail. Upon seeing this his son Riasat Ali out of grave and sudden provocation could not tolerate and in that particular state of mind rushed to nearby house and brought his .12 bore double barred gun from the house and fired upon Amanat Ali, Riasat Ali, PW and Abbas deceased who were still busy in the obscene and bottom naked dance. All the said three dancing trio fell down on receiving one shot each at the hands of my son Riasat Ali because of their own guilt. He, with his aged wife arid brother made their leva! Best to stop the eventuality and implored the dancing trio as well as his son Riasat Ali who. Had virtually become mad over the obnoxious act of the above-mentioned naked dancers, ljaz, Shaukat his nephews were not at all armed with any fire-arm weapons nor they had taken part in the incident in any manner being not present at the spot. His sons Liaqat and Iqbal accused had also not taken part in the incident being armed with any sotas nor they had injured any one including Zulfiqar Ali, PW being not present in the village on the day and the time of occurrence and both of them were present at their factories at Raiwind/Lahore. Had Amanat Ali, Abbas and Riasat Ali not done the above nudity with provocation his son Riasat Ali would have probably not acted under grave and sudden provocation, he otherwise, had not committed Qatl-e-Amd or had not launched any murderous assault upon any one. It was all natural. The alleged injuries of Zulfiqar PW are fake and fabricated.
7. After conclusion of the trial, the learned Trial Court convicted the appellants as stated above.
8. Leamed counsel for the appellants contends that the prosecution case is full contradictions, discrepancies and omissions. The prosecution evidence is containing illegal and improper evidence which cannot be relied upon for the conviction of the appellant. He further contends that the eye-witnesses of the alleged occurrence were not present at the spot and they have not come up with true version. Two parallel stories are existing on the record, one put forth by the prosecution in which they alleged the assault of the Appellants at the deceased and the PWs whereas the accused disclosed that at the time of alleged occurrence Amanat Ali upturned his Chadder (Lion clothe) and showed his sexual-organs to all present there including women-folk of his family and started dancing aggressively and provocatively and shouted "uproot my penis if you could" which caused grave and' sudden provocation and consequently Riasat Ali appellant lost control, came to his nearby house, fetched his double barrel gun and fired at Amanat which also hit Abbas and Riasat Ali out of these fire shots. The first two received one shot each and died at the spot and at the hands their own guilt." He further alleged that the remaining appellants were neither armed with any weapon nor they took part in the alleged occurrence. While discussing he submits that the plea raised by the appellants Nazir Ahmad supported by Riasat Ali and others was also raised before the police at the initial stage of the investigation.
Learned counsel for the appellants also contends that as per prosecution evidence the occurrence took place at 9.30 a.m. And it was reported to the police at 11.30 a.m. But the post-mortem examination was conducted on the next day at 10.00 a.m. The prosecution has failed to prove on record the reason of this delay autopsy of both the deceased. From this fact the learned counsel for the appellants concluded that as a matter of fact the F.I.R, was not lodged at 11.30 a.m. But it was delayed and recorded after consultation, deliberations and investigation. He claims that it was due to this reason that the post-mortem examination of the deceased was conducted with an inordinate delay. He submits that in our society burial of the dead-bodies are expedited, In the present case the deadbodies were with the police and the legal heirs but their postmortem examination was delayed because of the sole reason that the F.I.R, and the other papers were not ready and because of the non-availability of the papers the postmortem examination of the deceased could not be conducted. He also submits that plausible explanation regarding the delay in performing the post-mortem examination of the dead-bodies is not forthcoming. The learned counsel for the appellant also contends that the medical evidence in the present case is shaky and not conclusive. PW-3 Dr. Muhammad Afzaal opined in his statement that "most probably/obviously the injuries were caused by fire-arm weapon in nature." His opinion lacks the force of an expert, From his inconclusive evidence it may be inferred that the injuries suffered by Abbas arid Amanat may or may not be caused with fire-arm weapon-.
There is another important factor which indicated that the injuries on the persons of the dead- bodies and the injured were, caused from one weapon1. The doctor while deposing as PW-3 stated that: "it is correct that the measurement and dimension of all the injuries on the persons of both dead-bodies was one and the same." From this the learned defence counsel concluded that version of Riasat Ali appellant seeks full support from the evidence of PW-3. He also submits that only Riasat Ali appellant was having .12 bore double barrel gun with him. He lost control on his patience and by holding a double barrel .12 bore gun fired at the deceased and injured them. This version of the appellant further finds support from the opinion of the Investigating Officer. The learned counsel for the appellant contends that the dead-body of Abbas was carrying 13 injuries.
None of these injuries was exit wound, In these circumstances, the pallets causing injuries on the person of the said deceased must have been within his corpse but .During the post-mortem examination none of the metallic pieces could be detected. PW-3 has not declared the nature of injuries in his report regarding Riasat Ali injured. The learned counsel .For the appellant further submits that the plea of Riasat - Ali appellant was not manoeuvred subsequently, itwas introduced at the very initial stage of the investigation and that during the investigation this plea finds favour of the Investigating Officer. While concluding his arguments, the learned counsel for the appellant submits that it was not a pre-planned Qatl-e-Amd and that the extreme penalty awarded by the learned Trial Court to Riasat Ali appellant was unwarranted and the learned Trial Court was not justified in convicting the other appellants. He prays that the death sentence awarded to Riasat Ali appellant may not be confirmed and the conviction and sentence of the remaining appellants be set aside. The learned counsel for the appellant relied upon 2001 SCM R 195, PLD 1996 SC 274, 2008 P.Cr.L J. 330, NLR 1993 Crl. 11, 1983 SCM R 322, 1994 SCMR 31,. 1991 P.Cr.L.J, 557, 1995 SGMR 1377.
9. Conversely, learned DPG for the State assisted by the learned counsel for the complainant contends that it is a daylight occurrence. The appellants and other accused are named in the F.I.R., specific part has been attributed to them. The occurrence took-place at 9.30 a.m. And it was reported within two hours to the police despite the fact that the distance between the place of occurrence and police station was 9-kilometers and that all the possible details have been mentioned in the F.I.R, and that the part played by the appellants have also been detailed therein.
He further submits that the plea raised by Riasat Ali, appellant is not plausible and that contrary to it the prosecution witnesses are independent. No previous enmity existed between them and they have given a natural and understandable narration of the occurrence and that the evidence of all the eye-witnesses has corroborated each other. The evidence of the three eye-witnesses besides the complainant are supported by the stamp of injuries, medical evidence and marks of injuries on their person and that this is a case in which two murders took place and the act of the appellants was brutal and consequently they all caused firearm injuries on the person of the injured PWs. He also submits that ocular account of present case finds full support from the motive, the medical evidence and recoveries of the weapon of offence. He also states that the defence has failed to shatter the prosecution case and that the learned Trial Court has made a detailed analysis of the prosecution evidence and rightly convicted the appellants and awarded them the sentence stated above. He while relying upon 2000 SCMR 408, PLD 2001 SC 465, PLD 2001 SC 696, and 2001 P.Cr.L.J.
186/ states that Riasat Ali appellant also remained absconder and that the evidence of abscondence is always considered by the Courts to be a supporting evidence to the other material made available on record. He lastly submits that it is a case in which the learned Trial Court has rightly convicted the appellants.
10. After considering the respective contentions of the parties and perusing the record, we are of the view that the occurrence took-place in this case at 9.30 a.m. And as per prosecution version the matter was reported to the police at 11.30 a.m. It is quite surprising that autopsy of both the dead-bodies could not be conducted on that day. It was postponed till next day at 10.00 a.m. And 12.00 midday. The prosecution evidence has failed to offer any plausible explanation for this inordinate delay in conducting autopsy. From this delay in the post-mortem examination we conclude that the F.I.R, in this case was not recorded with promptitude and the complainant and the eye-witnesses kept on consulting each other and after consultation, deliberations and investigation fabricated a story and implicated the accused in this case. There is another important fact that the injuries on the person of both the deceased and the injured PWs are almost of the same dimensions. If more than one weapon was being used by the assailants then the dimensions of the injuries on the persons of the deceased and the PWs would have been different.
The dispute between the parties was over the sale proceeds of the fish of the pond. The dispute was not so serious, in which the deceased could have been assaulted in the manner. Another important aspect of this case cannot be lost sight is that the women-folk of the appellants were also present at the scene of occurrence. Had the appellants and their co-accused assaulted the deceased then they should not have taken their women-folk with them. The accused have taken up a definite plea in the case. According to Riasat Ali appellant the deceased Amanat lifted his worn cloth (Chadar) and showed his sexual organs to all the persons including the women-folk of the accused party and started dancing. He also asked them that they may uproot his penis if they can. A young person like Riasat Ali appellant at the spot naturally could not tolerate this indecent and uncalled for act. Of Amanat and Abbas deceased. He lost his patience, went to his residence which is at a distance of 50 feet only, brought out double barrel gun from his residence and fired at him, which also hit Abbas deceased and the PWs. In such-like eventuality the fire shot would never see as to whether it is hitting the actual target or the others. The act of Amanat deceased was so serious that it created sphere of grave and sudden provocation for Riasat Ali appellant. While considering the case of Ali Muhammad v. The State (1993 P.Cr.L.J. 557) and Abdul Zahir and another v. The State (2000 SCM R 406) we are of the view that the act of Riasat Ali appellant falls within the domain of Section 302(b), PPC. Considering the act of Amanat and Abbas deceased we think that, it was a mitigating circumstance in which the appellant Riasat Ali should not have been awarded death sentence. Therefore, considering above-said mitigating circumstances, we are of the view that the sentence .Of death awarded to Riasat Ali appellant was harsh, therefore, we convert his death sentence to life imprisonment on counts. However, the compensation awarded, under Section 544-A, Cr.P.C, is maintained. The sentence under Section 324, PPC awarded to Riasat Ali appellant is also maintained. AJ1 the sentences shall run concurrently. The benefit of Section 382-B, Cr.P.C, shall also be given to Riasat All, appellant.
11. So far as the case of Muhammad Iqbal and Uaqat Ali appellants are concerned, we have already disbelieved the prosecution story and believed advanced by Riasat Ali appellant, therefore, we conclude that both the appellants have not played any part during entire occurrence. The conviction awarded to them was not warranted. Therefore, their conviction and . They are in custody. They be released forthwith from required in any other case.
12. In view of the above findings, Crl. Appeal No. 1436/2002 filed by Riasat Ali appellant is dismissed with the above modification that his death sentence on two counts is converted into life imprisonment on two counts. However his sentence under Section 324, PPC is maintained. Criminal Appeal No. 1748/2002 filed by Muhammad Iqbal and Uaqat Ali appellants is accepted. Crl. Appeal No. 1584/2002 and Criminal Revision No. 864-2002 filed by the complainant stand dismissed.
13. Murder Reference is answered in Negative.
14. The case property be disposed of in accordance with the directions of the learned Trial Court' after any appeal or petition,, if any. Sentence reduced.