' IJAZ AHMAD CHAUDHRY, J.---This judgment will dispose of Crl. Appeal No,655 of 2002 filed by Allah Ditta alias Ditta and Criminal Appeal No,214-J of 2002 filed by Muhammad Aslam alias Nanha appellant against their convictions and sentences along with Murder Reference No,290 of 2002 sent by the learned trial Court under section 374, Cr.P.C. For the confirmation of death sentence as all these matters have arisen from the same judgment dated 20-4-2002 passed by the learned Addl. Sessions Judge, Shakargarh through which he had convicted Allah Ditta alias Ditti appellant under section 302(b), P.P.C. And sentenced him to death with a fine of Rs,50,000 payable to the legal heirs of the deceased Munir Ahmad under section 544-A, Cr.P.C. Or in default of payment thereof to undergo S.I. For six months. Muhammad Aslam appellant was also convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with a fine of Rs,50,000 payable to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default of payment thereof to undergo S.I. For six months. Through the same judgment Muhammad Mansha, Sakhi Ahmad alias Sahib, Maqbool Ahmad and Nisar Ahmad co-accused had been acquitted by giving them the benefit of doubt.
2. The occurrence in the present case had taken place on 30-7-1999 at 7-15 p.m. Situate within the area of Mauza Terpai, 5 kilometers away from Police Station Kot Nainan District Narowal and the statement (Exh.PF) of Muhammad Siddique (P.W.8) real uncle of the deceased Munir Ahmad under section 154, Cr.P.C. Was recorded by Muhammad Feroze, Inspector (P.W.11) at Civil Hospital Shakargarh on the same day on the basis of which formal F.I.R. Was drafted by Nasrullah Khan Moharrar/ HC on 30-7-1999 at 11-00 a.m.
3. The brief facts as narrated in the F.I.R. Lodged by Muhammad Siddique (P.W.8) real uncle of the deceased Munir Ahmad are that on 30-7-1999 at about 7-15 p.m. He along with his nephew Munir Ahmad (deceased) Naveed Ahmad son of Muhammad Hanif and Muhammad Arshad son of Bashir Ahmad P.Ws. Along with 15/20 persons was present in the street in front of Tel Shop of Muhammad Ashraf alias Nikka resident of village Turpai and they were watching T.V. In the meanwhile, Nisar Ahmad co-accused armed with Mouser, Muhammad Mansha co-accused armed with gun .12 bore double barrel. Allah Ditta appellant armed with .12 bore gun. Sakhi Ahmad alias Sahib co-accused armed with Mouser along with two unknown persons armed with deadly weapons suddenly came there and Allah Ditta appellant made fire-shot with his gun upon nephew of the complainant Munir Ahmad (deceased) which hit on his right shoulder who fell down on the ground after receiving the injury. Then all the other accused made firing by raising lalkaras that if any person came forward he would be done to death and succeeded in fleeing away. P.Ws.
Naveed Ahmad and Muhammad Arshad were taking injured Munir Ahmad to Civil Hospital, Shakargarh, for treatment on a car, who succumbed to the injuries on the way.
4. The motive behind the occurrence was alleged that there was previous old enmity between the complainant party and accused persons and the respectables of the locality had compromised the matter. In the supplementary statement the complainant nominated the names of the accused Maqbool Ahmad son of Ghulam Haider and Muhammad Aslam alias Mansha son of Jamil armed with gun .12 bore allegedly involved in this case of commission of Qatle-amd of Munir Ahmad deceased.
5. On receiving the information of the alleged occurrence reached the Civil Hospital Shakargarh, recorded the statement of the complainant and sent the same through Zafar Iqbal Constable to the police station for the registration of the case. He prepared the injury statement Exh. PG and inquest report Exh.PH. On the same day he recorded supplementary statement of the complainant Muhammad Siddique in the Hospital at night. He recorded the statements of the P.Ws. Muhammad Arshad and Muhammad Naveed under section 161, Cr.P.C. In the hospital. On the next day at night i.e, 2-00 a.m. On the same night he visited the spot he arranged for light and then after visiting the spot he prepared site-plan Exh.P.J. Then he collected blood-stained earth from the spot and prepared recovery memo. Exh.PK and he recorded the statement of Kabir and Shabbir under section 161, Cr.P.C. Regarding the said recovery of blood-stained earth. Waris All and Muhammad Ayub Constables returned to the spot and they produced blood-stained clothes before him which he took into possession through the recovery memo. Exh.PB, and one sealed parcel of pallets. Then he recorded the statements of Waris Constable, Muhammad Akhtar and Farooq P.Ws. Under section 161, Cr.P.C. On 3-8-1999 he recorded the statement of. Rana Sardar Draftsman (P.W.1) under section 161, Cr.P.C. Thereafter on 16-10-1999 the investigation was entrusted to Akhtar Hussain, DSP (P.W.14) by the DIG, Gujranwala. He investigated the case till 14-11-1999. During investigation he summoned both the parties for investigation and visited the place of occurrence. The parties were confronted and after investigation he found Muhammad Aslam alias Nanha and Allah Ditta, appellants as the real culprits whereas the other accused were found innocent during his investigation. Allah Ditta appellant was arrested by him on 14-11-1999 and then he directed the S.H.O, for further investigation/completion and recovery of weapon of offence and for sending the challan as soon as possible.
6. After the completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court. Then copies of the documents required under section 265-C, Cr.P.C. Were supplied to the appellants and their co-accused, the charge was framed which was denied by them and they claimed to be tried. The prosecution in order to prove its case produced as many as 11 witnesses.
The ocular account had been provided by Muhammad Siddique (P.W.8) and Naveed Ahmad (P.W.9) while the medical evidence had been furnished by Dr. Muhammad Asif Khan (P.W.5) who had conducted the postmortem examination of Munir Ahmad. The investigation had been conducted by Muhammad Feroze Inspector (P.W.11) and Akhtar Hussain, DSP (P. W.10). The remaining witnesses are of formal nature and need not to discuss here.
7. After the close of the prosecution evidence the statements of the appellants along with their co- accused were recorded under section 342, Cr.P.C. In which they denied the allegation and professed their innocence. The appellant did not opt to make statements under section 340(2), Cr.P.C. And also denied to produce any defence evidence. They only stated to have been falsely involved in the present case due to party faction and previous enmity.
8. The learned trial Court after hearing arguments of both the parties had passed the impugned judgment of convictions and sentences against the appellants which is being assailed through the instant appeals.
9. Learned counsel for appellant Allah Ditta alias Ditta contends that both the eyewitnesses (Muhammad Siddique and Naveed Ahmed) were not present at the spot at the time of incident and the explanation given by both of them for being present at the spot stood falsified as neither any Bench had been taken into possession by the police nor in the site-plan the place where the Benches were lying had been mentioned that the names of the accused had not been mentioned in the site-pan; that both the eye-witnesses being inimical to the appellant were interested witnesses and their presence at the spot was doubtful; that the recovery was inconsequential no empty had been recovered from the spot and it could not be proved that the weapon had been used during the incident; that the motive was also not proved; that the incident had allegedly taken place in the dark hours of the night, but the source of light had not been disclosed; that, Muhammad Siddique P.W.8 claimed that the Investigating Officer had met him at Tupai More when the deceased was being taken to the hospital, who inquired about the incident, but the matter was not reported at that time and the F.I.R. Had been admittedly registered with delay and that the prosecution miserably failed to prove the case and the appellant is entitled to acquittal.
10. Learned counsel appearing on behalf of Muhammad Aslam, appellant has contended that he was resident of the same locality, but he was not named in the F.I.R. And he could not be considered as one of the accused who was unknown and was not named by the complainant in his statement under section 154, Cr.P.C. That his participation in the present incident was doubtful and convictions and sentences may be set aside as the four other co-accused with the similar role have already been acquitted by the learned trial Court.
11. Learned Deputy Prosecutor- General, on the other hand opposes these appeals on the ground that both the eyewitnesses had explained their presence at the spot and they made consistent statements regarding the time, place and the manner in which the incident had taken place and the deceased was taken to the hospital; that the F.I.R. Was got registered with promptitude and that the prosecution evidence is sufficient to connect the appellants with the evidence is sufficient to connect the appellants with the commission of the crime, whose appeals may be dismissed.
12. We have heard the arguments advanced by the learned counsel for the parties and also perused the record with due care and caution.
13. The incident in the present case according to the prosecution had taken place on 30-7-1999 at 7-15- p.m. On which the F.I.R. Was registered at 11-00 p.m. At Police Station Kat Nainan by Nasrullah Khan MHC on the statement of Muhammad Siddique (P.W.8) recorded by Muhammad Feroze Inspector/S.H.O. (P.W.11) while present in Civil Hospital Shakargarh. Both the witnesses had made consistent statements about the making of the statement of the complainant in Civil Hospital Shakargarh. During the cross-examination it has been admitted by Naveed Ahmad (P.W.9) that Muhammad Feroze Din Inspector (P.W.II) had met him at Turpai More, who asked about the A occurrence from them and then he had taken the injured to the hospital but the statement of the complainant was recorded at Civil Hospital. Although there was some delay in the recording of the F.I.R. But it is not fatal to the prosecution version as a whole. According to the eye-witnesses, about 30/40 persons had been watching T.V. When tile incident had taken place and the shop of Allah Ditta appellant was also near the place of incident. The eye-witnesses had specifically attributed the injury on the person of the deceased to Allah Ditta appellant. There is nothing on the record to suggest that the F.I.R. Had A been recorded with all inordinate delay and it can be used as a corroborative piece of evidence to the extent of Allah Ditta appellant. Even if the matter was not reported to the police first when Muhammad Feroze Inspector (P. W.11) had met the injured and the P.Ws. In the way to the hospital, the same cannot held fatal to the prosecution version as first priority of the P.Ws. Including the S.H.O. Would have been to save the life of the deceased who is serious injured was being taken to the hospital and then the S.H.O. Had followed them and got recorded the statement of the complainant. This conduct of the S.H.O. And the complainant was quite natural and we do not find any illegality in it.
14. To prove the ocular account the prosecution produced two witnesses Muhammad Siddique (P.W.8) and Naveed Ahmed (P.W.9) Muhammad Siddique P.W.8 was the paternal uncle of the deceased Munir Ahmad and Naveed Ahmad P.W.9 was brother of the deceased. Muhammad Arshad (given up P.W.) was also nephew of the complainant. So the, eye-witnesses cited in the F.I.R.
Were closely related inter se and with the deceased. It is also an admitted fact that there was some previous enmity between the parties as criminal cases were registered B and in said criminal cases as explained by the eye-witnesses during the cross-examination a compromise had been affected between the parties. Although compromise had not been effected with Naveed Ahmad, P.W.9 but it was effected with the other persons of the complainant party. In such circumstances Naveed Ahmad (P.W.9 might be an interested witness but the complainant and Muhammad Arshad cannot be declared as interested witnesses out of which Muhammad Siddique appeared as P.W.B. It is not denied that the complainant and Naveed Ahmad P.Ws. 8 and 9) were residents of the same vicinity where the incident had taken place. According to Muhammad Siddique, P.W.8 the incident had taken place at a distance of 25 yards from their house. It has been argued that Naveed Ahmad (P.W.9) was working as a labourer at Lahore and he was not present at the spot.
We have noticed that during the cross-examination he stated that he had gone to his village 4/5 days before the incident and even otherwise he was working at the shop of his elder brother at Lahore. It was claimed that he used to visit the village in two months. The incident had taken place in his native village and the other family members were also residing, in the same vicinity, so coming of Naveed Ahmad P.W.9 to his village and seeing the incident at the given time was not improbable story. Both the eye-witnesses had fully explained their presence at the spot that they were D watching T.V. In the Chowk of their village where other persons were also present for viewing T.V. Placed at the shop of Muhammad Ashraf alias Nikka.
' The witnesses claimed that there were two Benches on which number or persons were sitting. No doubt the sequence of sitting had been given in different manner by Naveed Ahmad P.W.9 and the complainant Muhammad Siddiqui P.W.8 but we find that the minor contradictions in the statements of the witnesses could occur due to the lapse of time as the incident had taken place on 30-7-1999 while the statements of P.W.8 and P.W.9 were recorded on 19-3-2003. So the minor discrepancies in the statements of both the witnesses can be termed as lapses of time and these are not sufficient to hit the prosecution version about the involvement of Allah Ditta appellant in the present occurrence. The previous between the parties was patched up according to the defence plea as well and there was no reason left with the complainant party to falsely involve Allah Ditta appellant if he had not participated in the incident. Both, the eye-witnesses remained consistent on the material points regarding the time, place of incident and the manner in which the incident had taken place. According to the prosecution version, the appellant Allah Ditta while armed with gun had fired at Munir Ahmad deceased and during the cross-examination the defence had failed to gain anything in its favour to exonerate Allah Ditta appellant from the commission of the crime.
The injuries on the person of the deceased could be as a result of firing from the gun as the pellets were recovered from the body of the deceased by the doctor at the time of the post-mortem examination.
15. The incident had taken place immediately after Maghrab Azam was over, when usually there was light and even otherwise the incident had taken place in the Chowk where number of people were present. The possibility of availability of, light in the Chowk where the people were making Gup Shup while taking tea and viewing T.V. Was quite normal thing. It is not expected that they would have been sitting the darkness and the shopkeepers had not arranged the light for their customers, who had come to the Chowk in order to enjoy themselves by watching T.V. And also having a chat with each other. As such, there was no question of mis-identity of the appellant Allah Ditta, who had been living in the same vicinity and Muhammad Yousaf son of Allah Ditta had earlier got registered a criminal case Exh.DB) under sections 337-A(ii)/337-A(i)/337-L (ii)148/ 149,P . P . C .
On 20-4-1999 against Muhammad Siddique complainant, Munir Ahmad deceased, Mukhtar Ahmad, Nisar Ahmad, Ghulam Farid and Zulfiqar. Another case was got registered by Zulfiqar vide F.I.R. No,341, dated 22-4-1999 at Police Station Shakargarh in which Muhammad Yousaf father of Allah Ditta, appellant. Due to registration of said cases there could be some resentment between the parties before the incident which could result into happening of the present incident for some immediate cause as Allah Ditta appellant was running a shop adjacent to the shop of Muhammad Ashraf alias Nikka where the incident had taken place. The defence failed to show that the occurrence had not taken place at the time and the place alleged by the prosecution in the presence of certain other people and this occurrence could not go unwitnessed. The appellant was running the shop in the same bazaar and he could have produced any shopkeeper therefrom in support of his innocence, if he had not committed this crime. We have found nothing on the record to discard the ocular account, which to the extent of involvement of Allah Ditta appellant as the main accused who had fired single shot at the deceased found trustworthy and reliable. Mere acquittal of the co-accused, who were not attributed any active role is, not a ground for acquittal of Allah Ditta appellant as his case is distinguishable.
16. As far as motive of the incident is concerned, it is an admitted fact that there was previous between the parties and cases were also registered against each other but then the efforts were made for effecting compromise and compromise was also effected. However, the motive is always a matter between the assailant and the victim and the others might have no knowledge about the same. The occurrence could have taken place for some immediate cause and now a days innocent killings are H also being made without any motive. In the present case, it appears that something had happened immediately before the incident and the appellant Allah Ditta had fired at the deceased with clear intention to commit his murder.
17. Now we come to the medical evidence the injuries had been received by the deceased from a single shot fired from the right side by the appellant at the time of incident. The pellets were recovered from the body of the deceased which proves that gun had been used for causing such injuries. We have also perused the diagram and it is more likely that the deceased had received the said injuries by a single shot. The eye-witnesses though had named the other accused present at the spot but had not attributed any injury to any of the said accused and both the eye- witnesses made consistent statement that only single shot fired by the appellant had hit the deceased which is supported by the medical evidence as well.
18. As far as the recovery of weapon from Allah Ditta appellant is concerned. He had noticed that no empty had been recovered from the spot and it could not be proved the record that the same weapon had used during the incident, thus the said recovery was useless.
19. In view of above discussion, we have no doubt in our mind that the prosecution had succeeded in bringing home guilt to Allah Ditta alias Ditti appellant beyond any shadow of doubt. As such the conviction recorded by the learned trial Court against Allah Ditta alias Ditti appellant under section 302, P . P . C . Isll maintained.
20. So far as quantum of sentence is concerned, the learned counsel for the appellant has contended that the motive could not be proved, the circumstances under which the incident had taken place also remained shrouded in mystery and even otherwise the appellant had made a single shot, therefore, the sentence of the appellant may be reduced as the occurrence might have taken place for some immediate cause without premeditation. We have noticed that the appellant had come at the spot while armed with fire-arm and made a shot on the person of the deceased.
The intention of the accused can be gathered from the weapon used and the act played during the occurrence. Mere non-proving of the motive or making a single shot during the occurrence are not sufficient grounds for lesser sentence in view of the latest pronouncement of the august Supreme Court made in Syed Hamid Mukhtar v. Muhammad Azam and 2 others 2005 SCM R 427 wherein it has been held that mere making of single shot, non-availability motive and taking place of the occurrence at the spur of moment are not the mitigating circumstances for the award of lesser sentence. Hence the death sentence awarded by the learned trial Court to the appellant is confirmed.
21. As a result of the above discussion we find no merit in Criminal Appeal No,655 of 2002 filed by Allah Ditta alias Ditti appellant which is dismissed and the conviction and the sentence recorded by the learned trial Court against him through the impugned judgment is maintained with the slight modification that the nine levied on the appellant will be treated as compensation payable to the legal heirs of the deceased under section 544-A, Cr.P.C.
22. So far as the case of Muhammad Aslam appellant in Criminal Appeal No,214-J of 2002 is concerned, admittedly he had not been nominated in the F.I.R. And he was introduced later on in the supplementary statement alleging that he was one out of the two who were mentioned as unknown in the F.I.R. It has come on the record that the appellant was resident of the same vicinity and previously known to the complainant party. There is no plausible explanation on the record that how the complainant had come to know about the involvement of Muhammad Aslam appellant in the present case and why his name could not be given in the F.I.R. Or he could not be identified during the incident. Even otherwise no injury had been attributed to him on the person of the deceased and he was attributed only the general role of ineffective firing along with the four co-accused, who have already been acquitted by the learned trial Court and the case of the appellant was on better footing as he had been introduced as an accused later on whereas the acquitted accused were duly nominated in the F.I.R. Admittedly no empty had been recovered from the spot and mere recovery of fire-arm weapon from Muhammad Aslam appellant was not sufficient to distinguish his case from the already acquitted accused and the learned trial Court had committed material illegality while recording conviction and sentence against Muhammad Aslam appellant, who was also entitled to the same treatment.' Resultantly Criminal Appeal No,214- J of 2002 is accepted, the impugned conviction and sentence recorded by the learned Trial Court against Muhammad Aslam appellant set aside and he is acquitted of the charge by extending him the benefit of doubt, who shall be released from the jail forthwith, if not required in any other case.
23. Murder Reference No,290 of 2002 is replied in the affirmative and the death sentence awarded by the learned trial Court to the appellant Allah Ditta appellant is confirmed.