' MIAN FASIH-UL-MULK, J.---Appellants Ghulam Haider and Muhammad Nizar were tried by learned Additional Sessions Judge-III, Abbotabad on charge under sections 302/324/34, P.P.C. And having found guilty for the murder of deceased Ishfaq and Muhammad Farid were convicted and sentenced to death on two counts under section 302/34, P.P.C. With a compensation of Rs,2,00,000 in total (Rs,1,00,000 each) and on recovery to be paid as compensation under section 544-A, Cr.P.C.
To the legal heirs of both the deceased as per their Shari shares. In default to suffer 6 months' S.-I.
Both the appellants were also convicted under section 324, P.P.C. And sentenced to two years' R.I.
And under section 337-A-II, P.P.C. To -six months' S.I. As Tazir for committing attempt and by inflicting injuries on the person of Mst. Shabnam Farid, are bound to 'pay Arsh 5% of Diyst amount Rs,35,000, which was ordered to be recovered from both the appellants equally and paid to injured P.W. Mst. Shabnam Farid. The convict/ appellants filed Criminal Appeal No,32 of 2008 against the conviction and sentence as aforesaid whereas Murder Reference No,3 of 2009 was sent by learned trial Court for confirmation of death sentence. Both the Appeal and Murder Reference are disposed of through this single judgment as common questions of law and facts are involved.
2. Briefly stated the facts of the prosecution case area that complainant Muhammad Farid then injured lodged the report in injured condition on 28-10-2003 at 8-30 a.m. At Emergency Room of RHC Havelian stating therein that on the fateful day he was present at his home when his son Ishfaq at 0700 hours went out from the house. As he reached the house of Ghulam Haider and others, he was intercepted by Ghulam Haider and Muhammad Nizar appellants along with Zulfiqar and Chanzeb absconding accused. An altercation took place between them upon which complainant along with his daughter Mst. Shabnam Farid injured attracted to the spot and they saw accused Nizar armed with .30 bore pistol whereas other accused Zulfiqar, Chanzeb and Ghulam Haider were armed with lathies. Deceased Ishfaq was encircled by accused party and accused Muhammad Nizar made fire at deceased Ishfaq with his .30 bore pistol with which he sustained injury and fell down and thereupon appellant Ghulam Haider inflicted lathi blow on the person of Ishfaq. In the meanwhile, complainant Muhammad Farid asked Ghulam Haider not to do so upon which all the accused armed with lathies started beating the complainant now deceased with intention to commit qatl-e-amd. They had also beaten injured P.W. Shabnam Farid with intention to kill her. Occurrence was witnessed by Shabnam Farid, Muhammad Daud alias Shafi along with other persons of the locality. Injured Muhammad Ishfaq was shifted to DHQ Hospital Abbottabad by his relatives. Motive was alleged dispute between the parties on the path since 10/12 years regarding which civil suit is also pending in the civil Court. Both the injured Ishfaq and Muhammad Farid succumbed to the injuries and died.
3. After completion of investigation, challan against appellants was put in Court. At trial formal charge was framed against the appellants, who professed innocence, false implication and claimed trial. The prosecution in support of its case examined 19 witnesses in all.
4. On close of prosecution evidence, appellants were examined under section 342, Cr.P.C. They did not appear as their own witnesses on Oath as required under section 340 (2), Cr.P.C.
' During pendency of appeal Muhammad Nizar appellant No,2 died. Appeal against him stood abated.
5. Learned counsel for the appellant contended that prosecution evidence is full of contradictions and discrepancies, besides the fact that F.I.R. Was lodged after preliminary investigation. In that medical examination was conducted prior to registration of report. Further contended that the prosecution has produced highly interested witnesses in order to substantiate the charge of murder against appellant. He also argued that fatal shot was attributed to Muhammad Nizar dead accused whereas role of inflicting lathi blows to deceased and injured P.W. Has been attributed to appellant Ghulam Haider. He further argued that there are material contradictions in the testimony of P. Ws. It was finally argued that a single benefit of doubt, if any, has to be extended to the appellant. The impugned conviction and sentence is contrary to the evidence on record and is liable to be set aside.
6. On the other hand, the learned counsel for the complainant assisted by State counsel contended that the report was lodged by Muhammad Farid then injured now deceased when he was in senses, his report shall be considered as dying declaration. It was further contended that the appellant in furtherance of common intention has committed murder of both deceased Ishfaq and Muhammad Farid, hence is equally liable for the offence. It was added that both the appellants are charged for commission of double brutal murder and that there was no strong blood feud enmity or reason for falsely implicating the appellant along with others, Learned counsel finally argued that the prosecution evidence is in line with the ocular testimony and the minor difference regarding the time of medical examination of injured and report would not vitiate the prosecution case, as alleged by defence. It was concluded that the learned trial Court has rightly convicted and sentenced appellant Ghulam Haider to death besides other penalties.
7. We have head learned counsel for the parties, who have cited plethora of case-law for and against, and perused the available record.
8. The appellant is directly charged in the promptly lodged F.I.R. Within 1:30 hour of the occurrence, hardly leaving scope for consultation and deliberations Substitution at the spur of moment is not believable in such like cases as there is no reason for prosecution witnesses to substitute the accused and let got the real culprit(s) specially when appellant and complainant party have no enmity with each other except dispute over the path. P.W. M,st. Shabnam Farid is the daughter of deceased Muhammad Farid and real sister of deceased Muhammad Ishfaq while P.W. Muhammad Daud is an independent and neutral witness. The statements of both witnesses are consistent on material points like day, time, place, mode and manner of occurrence including the role of appellant and the absconding accused. No material contradiction is brought on record by the defence counsel despite lengthy cross-examination. Both the eye-witnesses have given the natural and straightforward account with specific role of appellant, so their testimony is found confidence-inspiring and trustworthy. Medical report as well as circumstantial evidence is also found in line with case of prosecution, in view of time of injury and death coupled with time of postmortem. Except the motive, as alleged in the F.I.R., there was no enmity amongst the parties.
The ocular account is confidence-inspiring and is fully corroborated by medical evidence. There is no major contradiction and discrepancy in the evidence of prosecution, rather the same is found consistent upon material points. In the facts and circumstances of the case the prosecution has been able to prove its case against appellant Ghulam Haider beyond any reasonable doubt and, therefore, he was rightly convicted by the learned trial Court.
9. As far as the quantum of sentence is concerned, we on perusal of record found that Muhammad Nizar now dead has fired fatal shot at Ishfaq deceased whereas appellant has inflicted lathi blows to both the deceased and the injured P.W. It is also worth-mentioning that the occurrence took place after a sudden altercation for which the sentence of death would be too harsh and exaggerated. Keeping in view all the attending facts and circumstances of the case coupled with the role attributed to him by the prosecution as well as the evidence led on record, we are of the firm view the imprisonment for life would meet the ends of justice.
10. In the result, we partially allow the appeal and while maintaining conviction of appellant Ghulam Haider under section 302/34; P.P.C. Modify his sentence of death to that of life imprisonment. With this modification the appeal is hereby dismissed. Murder Reference is answered in the negative.