' SAGHIR AHMAD, J.---Shaukat Iqbal and Bashir Ahmad (appellants) along .With their co-accused namely Ghulam Rabbani and. Mian Khan son of Rehmat Khan, were tried by a learned Additional Sessions Judge, Kharian, in case F.I.R. No,28 dated 30-1-2000 registered under section 302/34, P.P.C.
At the instance of one Muhammad Akbar (complainant) with Police Station, Saddar Lala Mousa, District Gujrat. On conclusion of the trial, vide judgment dated 19-4-2005 the appellants were convicted under section 302/34, P.P.C. And both sentenced to life imprisonment with a fine of Rs,20,000 each, in default whereof to further undergo S.I for one year each; both were also directed to pay compensation of Rs,50,000 each to the legal heirs of the deceased, recoverable as arrears of land revenue, in default whereof, each one of them w iuniier suffer S.I for six months. Benefit of section 382-B, Cr.P.C. Was extended. Ghulam Rabbani and Mian Khan son of Rehmat Khan were acquitted by the learned trial court, whereas, Mian Khan son of Imam Din was murdered during the trial.
2. Briefly the prosecution case as it emerged from F.I.R. (Exh.PK), is that on 30-1-2600 at 6-00 p.m., the complainant (Muhammad Akbar) along with Javed Iqbal, Bashir Ahmad and Muhammad Ihsan were sitting in the house of Javed Iqbal, when they heard a fire shot and they saw that on the roof top of house of Mian Khan son of Imam Din (since dead), Mian Khan son of Imam Din himself armed with .223-bore rifle, Bashir Ahmad (appellant) armed with .12-bore gun, Shoukat Iqbal (appellant) armed with .222-bore rifle, Mian Khan son of Rehmat Khan armed with .12-bore gun and Ghulam Rabbani carrying .222-rifle were present. Mian Khan son of Imam Din raised a ialkara and fired a straight rifle shot hitting the forehead of Muhammad Ihsan; second fire by Shoukat (appellant) hit near the left eye of Muhammad Ihsan. The accused resorted to indiscriminate firing.
Muhammad Ihsan succumbed to the injuries at the spot. The motive was stated to be previous murderous enmity between the parties.
3. The usual investigation commenced and ultimately challan was submitted against five accused persons namely Ghulam Rabbani, Mian Khan son of Imam Din, Shaukat Iqbal (appellant), Bashir Ahmad son of Imam Din (appellant) and Mian Khan son of Rehmat Khan. They all were charge sheeted, to which the accused pleaded innocence and claimed to be tried. During trial, the prosecution produced Shan Ali Sub-Inspector P.W-11 who verified the conduct of investigation by Ghulam Haider Inspector, who had died. P.W-1 to P.W-3 are formal witnesses from police who deposed about the various formalities performed by them towards completion of the investigation.
P.W-4 Muhammad Afzal deposed about certain recoveries of .222-bore rifle Exh.PC from Shoukat appellant and .12-bore pump-action EX.PD from Bashir Ahmad appellant. P.W-5 Dr. Farooq Ahmad Bangash, while appearing in court explained about the post mortem examination of deceased Ihsan. P.W-6 Akhtar Naqash Draftsman is yet another formal witness who prepared the site-plan of the occurrence. Muhammad Akbar complainant P.W-7 while, appearing before the court deposed about the ocular account of the incident on lines with the contents of the F.I.R., whereas, Bashir Ahmad P.W-8 to the line of the complainant. On completion of prosecution evidence, the accused appellant Shaukat Iqbal when examined under section 342, Cr.P.C. In answer to a question as to why this case against him, attributed his false implication to enmity. Similarly, Bashir Ahmad appellant also adopted the stance taken by co-accused Shoukat. On conclusion of the trial, the learned Additional Sessions Judge, Kharian, while acquitting Ghulam Rabbani and Mian Khan, recorded conviction and sentence against the present appellants as detailed in the opening paragraph of this judgment.
4. Learned counsel for the appellants opened arguments by contending that although Bashir Ahmad son of Imam Din appellant No,2 has been named in the F.I.R. And also has been shown to be armed with weapon, but there is no attribution of any overt act against him except the general allegation of indiscriminate firing. With regard to Shoukat Iqbal appellant No,1, the learned counsel contends that even per contents of the F.I.R. The fatal shot at the forehead of Ihsan deceased is attributed to Mian Khan and that the injury allegedly inflicted by Shaukat Iqbal appellant No, 1 is a superficial injury and even the medical officer Dr. Farooq Ahmad Bangash who had conducted autopsy, observed that said Injury No,2 was not only superficial but also simple and only Injury No,1 attributed to Mian Khan was declared fatal. The learned counsel further contends that the doctor had kept the Injury No,2 under observation till X-ray examination but no X-ray report was produced before him. The learned counsel also attacked the ocular account of the occurrence by referring to the site-plain and also the statement of P.W.6 Akhtar Naqash Draftsman, by contending that according to the site-plan Point-A is the place where the victim is alleged to have sustained injuries and Point-B is the place from where the accused are stated to have made firing, and distance between these two points is 230-feet. The learned counsel in fact tried to demonstrate that the place where the victim is alleged to have received the injuries is higher than the place from where the accused are alleged to have been firing at him, as such, from such a long distance, according to the learned counsel it could not be said with precision that which of the accused played what role and as to what happened immediately before the occurrence also remains shrouded in mystery, the benefit of which must be extended to the accused. The learned counsel further argued that according to the contents of the F.I.R. Itself the occurrence took place at 6-00 p.m. In the month of January and normally in those days at that time, it becomes too dark to identify a person from such a long distance, especially when no source of light is explained by the witnesses. The learned counsel, therefore, concluded that eye-witnesses were related persons, as such interested witnesses because of previous enmity between the parties and that prosecution had not been able to prove its case against the appellants beyond any shadow of doubt, therefore, they were also entitled .To be acquitted, as their co-accused were acquitted by the learned trial Court.
5. Conversely, learned Deputy Prosecutor General opposed this criminal appeal by arguing that Shaukat Iqbal appellant is specifically attributed a role of causing fire-arm injury at the eye of the deceased, therefore, he deserves no leniency, however, it is admitted that Bashir Ahmad appellant is only attributed the role of indiscriminate firing.
6. I have considered the above arguments of learned counsel for the parties and have examined the available record.
7. The previous enmity between the parties is a fact which is admitted by the complainant itself and such enmity has been shown to be the motive. But, there is ample case law on the point that motive is a double edged weapon and where it can be a cause to commit the offence, it can also be a cause to falsely implicate the accused persons. Therefore, merely on the basis of motive part, neither the conviction can be sustained or upheld nor can be set-aside, unless the surrounding circumstances contribute to establish the motive.
8. As regards the medical, evidence, Dr. Farooq Ahmad Bangash, P.W-5 while appearing in the witness box clearly deposed that Injury No,2, which injury has been attributed to Shaukat Iqbal appellant is only a superficial injury and is simple in nature, whereas, Injury No,1 attributed to Mian Khan was declared fatal and was sufficient to cause death in ordinary course of nature. Further, despite direction of the said medical officer the X-ray report was not produced before him to form an opinion about such injury, therefore; the benefit of such omission on the part of the prosecution is also to be given to the accused.
9. Coming to the ocular account of the incident, the contents of the F.I.R. As well as the alleged eye- witnesses are unanimous on the point that fatal shot at the forehead of deceased Ihsan was fired by Mian Khan (since dead) and thereafter, other shot is being attributed to Shaukat Iqbal appellant, which injury, as discussed above is only a superficial wound. Furthermore, the distance between Point-A and Point-B, according to the prosecution case itself is 230-feet and hitting a fire shot from such a long distance may be possible but highly improbable. Similarly, the Muhammad Akbar complainant P.W. Is father of Ihsan deceased and Bashir Ahmad P.W-8 the other eye- witness is also closely related to the complainant being his son in law. For this reason also the prosecution evidence required to be seen with extra caution, especially when previous enmity between the parties is admitted, and also that the main accused Mian Khan to whom the fatal shot was attributed has also been murdered.
10. The occurrence in this case took place on 30-1-2000 and according to the statement of Muhammad Afzal P. W-4 and the recovery memos, the alleged recoveries of crime weapons was effected on 27-2-2000 i,e, about one month after the occurrence at the instance of D Shaukat Iqbal and Bashir Ahmad appellants and also no independent person was associated with recovery proceedings. It also appears to be highly improbable that accused having committed such a serious crime would keep the crime weapon intact in their homes for such a long time for recovery and subsequent used against themselves.
11. In view of the above circumstances, when Bashir Ahmad appellant was not attributed any injury and was shown to be present at the spot and having made only indiscriminate firing, without proving motive against him, it was not justified for the learned trial court to have convicted him under section 302/34, P.P.C., as there existed sufficient E doubt about his false involvement.
Therefore, while following the rule of abundant precaution, this appeal to the extent of Bashir Ahmad appellant is allowed as a whole, his conviction and sentence as recorded by the learned trial court is set-aside and as he is already on bail, therefore, shall stand discharged of bail bonds.
12. As regards conviction against Shaukat Iqbal appellant, as detailed above, he is only attributed a simple superficial injury on the eye of the victim and as in the case of Bashir Ahmad appellant, here also motive to his extent having not been satisfactorily proved, his conviction in the case under section 302/34, P.P.C., would not be justified. Rather, the accumulative effect of all-what has been discussed above, leads this court to conclude that at the most the case against Shaukat Iqbal appellant is one covered by the definition of section 324, P.P.C. Accordingly, while partly allowing this appeal to the extent of Shaukat Iqbal appellant, his conviction under section 302/34, P.P.C. Is altered to one under section 324, P.P.C. And accordingly while modifying the quantum of sentence of life imprisonment, he (Shaukat Iqbal appellant) is sentenced to the period already undergone by him. As the learned trial court had ordered Rs,20,000 fine to be paid by both the convicts, therefore, the present appellant Shaukat Iqbal shall only pay Rs,10,000 as fine, in default the appellant shall further undergo S.I. For six months. Further sentence of compensation being not provided under section 324, P.P.C. Is set aside.