' MUHAMMAD ASHRAF BHATTI, J.--- The appellant, Shamraiz Akhtar alias Shamma along with Muhammad Khan co-accused were tried by the learned Judge, Special Court under the Suppression of Terrorist Activities Act, 1975, Gujrat for committing Qatl-e-Amd of Muhammad Arshad (deceased) son of Fazal Ahmad complainant (P.W.1) and also murdering a she-calf aged about 2/3 months in case F.I.R. No,211, dated 25-9-1999 registered under sections 302/429/148/149, P.P.C. At Police Station Karianwala, District Gujrat.
2. On conclusion of trial, aforesaid appellant Shamraiz Akhtar alias Shamma was convicted under section 302(b), P.P.C. And sentenced to death and was further held liable to pay an amount of Rs,2,00,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. And in default thereof to further undergo six months' S.I., while Muhammad Khan co-accused was acquitted of the charge vide judgment dated 29-4-2002 passed by the learned trial Court.
3. In brief, the prosecution story, as reflected in the F.I.R. Exh.P.A./1 is that on 25-9-1999 at about 6-00 p.m. Fazal Ahmed, complainant (P.W.1) along with his son Muhammad Arshad, Muhammad Zaman, Inayat and Muhammad Aslam, was sitting his "Haveli" when all of a sudden, Shamraiz Akhtar alias Shamma, the appellant, Iqbal, Muhammad Khan and Zafar, all while armed with kalashnikovs and younger son of said Iqbal (son's) name not known to the complainant armed with rifle 8 mm, entered in the Haveli, the appellant raised "Lalkara" that the complainant party be finished to bear a brunt of their friendship with "Malka Party". Thereafter, Shamraiz alias Shamma, appellant and then Iqbal fired bursts from their respective kalashnikovs which hit on the head of Muhammad Arshad (deceased) who fell down on the ground and his brain matter came out of his head whereafter all of them (the accused) started indiscriminate firing which hit on the right wrist of the deceased. Due to hue and cry raised at the spot the accused persons, after satisfying themselves that Muhammad Arshad had died, fled away from the scene of occurrence.
4. The motive behind the occurrence, as reflected in the prosecution version was the visiting terms of the complainant party with "Malka Party" of village Kotla, with whom the accused party was having enmity of murders and statedly, due to this grudge the accused persons committed the murder of Muhammad Arshad son of Fazal Ahmad, complainant (P.W.1).
5. The appellant and his co-accused were accordingly charge-sheeted, to which they pleaded not guilty and claimed trial.
6. P.W.10 Muhammad Bakhsh, S.-I./Investigating Officer got recorded the statement of Fazal Ahmad complainant (P.W.1) Exh.P.A., inspected the spot, drafted the injury statement of Muhammad Arshad deceased Exh.P.G., prepared injury statement of calf Exh.P.E. Inquest report Exh.P.H. Prepared the rough site plan Exh.P.J., collected the blood-stained earth from the place of occurrence and took the same into possession vide memo. Exh.P.D.; recorded the statements of P.Ws.; got prepared site plans from Akhtar Naqqash Draftsma n (P.W.3) along with red notes on Exh.P.C. And Exh.P.C./1 and sent the dead body of Muhammad Arshad deceased for post-mortem examination. He also took into possession the apparels of the deceased, blood-stained Qameez P.1 and Shalwar P.2 vide recovery memo. Exh.P.K.
7. He arrested the appellant Shamraiz Akhtar alias Shamma on 13-11-1999; took into possession Kalashnikov vide memo. Exh.P.E. Along with magazine P.1/1-3 245 bullets, P.1-245, 6 bullets P.3/103 and challaned the accused.
8. Muhammad Abbas S.-I. (P.W.11) arrested Muhammad Khan co-accused on 30-12-1999, prepared supplementary challan placing him in Column No,2 Nazir Ahmed D.S.P. (C.W.1) also investigated the case and declared the appellant Shamraiz Akhtar alias Shamma as innocent. After completing necessary police papers, the Investigating Officer submitted challan in Court.
9. The prosecution in all produced 11 witnesses in order to bring home the charge against the accused. Ocular account was furnished by Fazal Ahmad, complainant (P.W.1) and Muhammad Alam (P.W.2), in line with prosecution story as set out in the F.I.R. Exh.P.A./1 as also the complaint Exh.P.A.
10. On 26-9-1999 Dr. Shahid Raza, Medical Officer of A.B.S. Hospital, Gujrat conducted the autopsy on the dead body of Muhammad Arshad and found the following injuries:--- "A large lacerated wound measuring 15 c.m. x 3 c.m. In frontal area of head with inverted margins extended back on the occipital area 18 c.m. x 5 c.m. With averted margins. Brain matter was coming out of the carnial cavity. Menages were ruptured and skull bones were shatter into pieces.
' There is a lacerated wound 4 c.m. x 2 c.m. On dorsal aspect of right hand. Its margins were inverted and it is an entry wound. There is also a wound with everted margins just above right wrist joint at medial aspect. Corresponding sites of Qameez was also purfurated.
' Rigor mortis was present. Post-mortem staining was also present."
' He opined that the injuries mentioned above appear to be ante-mortem, death occurred due to trauma to the skull and brain with severe haemorrhage. The probable time that elapsed between injuries and death was within minutes and between death and post-mortem examination was 12 to 24 hours. Exh.P.D. Is the post-mortem report whereas Exh.P.D./1 is the sketch of injuries.
11. After tendering in evidence the report of Chemical Examiner (Exh.P.Y.) and that of Serologist (Exh.P.Z.) the prosecution closed its evidence.
12. All the accused, in their statements recorded under section 342, Cr.P.C. Denied the very factum of having committed the offence under reference. In answer to a question "as to why the prosecution witnesses deposed against him and why the case against him", Shamraiz Akhtar alias Shamma replied as under:--- "In fact Malka Party of Kotla is my enemy and present complainant party is having relations with Malka party and merely on the asking of said Malka party I have been got roped in this case by the complainant party and further more the P. Ws. Were inimical towards me, hence, they deposed against me and got me roped in this case. No P.W. Was present at the place of occurrence and an accused of lesser/small height murdered the deceased alone. Complainant party due to deliberations and consultation concocted false story and roped me in this case. I am innocent, nothing was recovered from me or at my pointation. The Investigating Officer was in league with the complainant party. I was declared innocent by the D.S.P. Saddar Gujrat."
13. The learned trial Court after hearing the arguments of the learned counsel for the parties, awarded the convictions and sentences to the appellant, as mentioned in the opening paragraph of this judgment.
14. We have heard the learned counsel for the parties and perused the record.
15. The learned counsel for the appellant has made special reference to the statement of Nazir Ahmed, D.S.P./C.W.1 to impress us that during police investigation the appellant was declared innocent and that the record lacks credible and convincing evidence to form a contrary view.
According to him, the learned trial Court held the appellant guilty of the murder of Muhammad Arshad, deceased which findings are not sustainable at law. In his view it was an unseen occurrence that took place after sunset and the appellant was just roped in by the complainant due to political influence of one Malik Muhammad Zaman, his arch rival in the village. He has also drawn our attention that had the story of bursts by Kalashnikov simultaneously from a close range of few feet, as suggested by the prosecution, there would have been present marked blackening around the area of wounds caused on the body of the deceased but that is absent as opined by the doctor who conducted the post-mortem examination. Non recovery of empties from the spot and alleged non-attribution of any role to the appellant have also been made basis of his arguments.
16. Contrary to the above arguments it is contended by the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant that the evidence brought on record has established without doubt of any kind, whatsoever, that the occurrence took place in the "Haveli" of the complainant and in his view, his son was murdered. Therefore, according to the prosecution it was not expected of the complainant to spare the real culprits and falsely substitute the appellant merely because he wanted to settle some score of enmity of the appellant with Malka Party or his admitted good relations with the said party. Further contends that the motive, though cuts both ways in this case it stands admitted if the case of the prosecution is taken into consideration with the statement got recorded by the appellant under section 342, Cr.P.C. In his considered assessm ent of the peculiar facts and circumstances of this case no other credible and straightforward ocular account could be available than the one furnished by the prosecution at the trial by examining Fazal Ahmed complainant/P.W.1 and Muhammad Aslam, P.W.2 who used to assemble in the complainant's Haveli in routine after day's work. As to the role attributed to the appellant he negated the defence arguments that no such role was attributed to him. In this regard he has referred to the statement of the complainant as also P.W.2 Muhammad Aslam to rebut the same inasmuch as that the appellant had made straight fires from his Kalashnikov on the head of the deceased Muhammad Arshad which weapon of offence was later on got recovered from him who was admittedly an absconder during the days of occurrence.
17. Referring to the medical evidence with special reference to blackening it is urged from the prosecution side that there is no hard and fast rule to establish the exact distance for the purpose of causing blackening. On the other hand it is contended that it depends upon the facts and circumstances of each case to determine such distance for causing blackening. In this regard the learned Deputy Prosecutor-General has referred to extensive damage caused by the wounds which was the result of the burst fired from Kalashnikov leaving no room of any doubt that in such condition presence of blackening could not be possible finds no rebuttal on record.
18. After having considered the arguments advanced from both sides we find that if the case of both sides is put in juxtaposition to each other the reasons advanced by the Deputy Prosecutor- General assisted by the learned counsel for the complainant are indeed weighty and convincing, fully implicating the appellant on the strength of credible and convincing evidence available on record. Close scrutiny of the eye-witnesses i.e. P.W.1 Fazal Ahmed and P.W.2 Muhammad Aslam leads us to an irresistible conclusion that the ocular account furnished by them is consistent, unimpeachable and credible if viewed on the basis of material details of the occurrence brought forth and so we find no hesitation to believe due to its qualitative worth. Further non-recovery of empties from the spot in this case would not demolish the prosecution case. Both the complainant and the appellant knew each other well. The occurrence admittedly took place in the Haveli of the complainant. Presence of the complainant is found to be natural and in this case his solitary statement being straightforward, can also be considered sufficient to record conviction which otherwise stands fully supported by P.W.2 Muhammad Aslam, the eye-witness on all material details. It may also be stated here that recovery of empties plays a pivotal role where the ocular account is found to be incredible and non trustworthy, which is not the case here.
19. We have also been unable to lay our hands on any material suggesting the conflict of the said ocular account with medical evidence particularly with reference to established kind of the weapon used, time and place of occurrence and existing no special reason to falsely involve the appellant on the part of the complainant. It is also a case where there is no question of mistaken identity.
20. In the light of the above opinion of the police declaring the appellant as innocent, being otherwise not binding upon the Courts, is found to be virtually incorrect and defective. The same is, therefore, brushed aside and we agree to uphold the findings of the learned trial Court whereby the appellant was found guilty of the offence under section 302(b), P.P.C.
21. In view of the above, the prosecution case stands proved against the appellant. Accordingly, Criminal Appeal No,647 of 2002 is dismissed.
22. However, regarding the quantum of punishment, we have valid reason to disagree with the findings of the learned trial Court. A close survey of the evidence on record would suggest that it is not clear as to whose fire proved fatal. In a case where some doubt is created in this regard benefit thereof must go to the convict in the matter of reduction of sentence. In this regard Noor Muhammad v. State 1999 M LD 60 is relied upon.
23. We accordingly find it a fit case of lesser punishment and so resultantly convert the death sentence awarded to the appellant into life imprisonment with benefit of section 382-B, Cr.P.C. The compensation awarded by the learned trial Court, however, shall remain intact.