1. ' NADEEM AZHAR SIDDIQI, J. This appeal has been preferred against the judgment dated 22-8-2007 passed by the learned IInd Additional Sessions Judge, Badin, whereby the appellant Ibrahim was convicted to death under section 302 (b) P.P.C, the appellant N000ro alias Noor Muhammad Jatt was convicted to suffer imprisonment for life, however, the co-accused Ishaque son of Juman Jat was died and the proceedings against him were abated, whereas Ismail son of Loung Jatt was acquitted under section 265-H, Cr.P.C. And accused Zahoor Illahi son of Akram Cheema was absconder and declared as proclaimed offender.
2. ' The appeal has been preferred by the appellants Ibrahim and Nooro, alias Noor Muhammad Jatt.
3. ' Facts of the prosecution case as narrated in Crime No,199/1999, registered at Police Station Shaheed Fazil Rahu under sections 302, 109, 34, P.P.C, are that the husband of the sister of the complainant namely poto was residing at Khor Wah and there was matrimonial dispute regarding the exchange of girls between Poto and Ibrahim. On the night of incident the complainant was stayed in the house of Poto where one boy namely Fateh Ali and other womenfolk were present.
4. During mid night complainant woke up on fire-shots, and in the moon-light he saw accused Ibrahim and his. Zamindar Zahoor Illahi (absconding accused) armed with guns, Noor Muhammad son of Soomar, Ishaque son of Muhammad Juman (now dead) were armed with hatchets and within the sight of complainant accused Ibrahim fired at Mst. Zebo and her father in law namely Poto and accused Zahoor Illahi fired at Mst. Marriam and Ghulam Hussain. It is further alleged that accused Nooro and Ishaque were standing in support of co-accused. During the incident one Siddique went inside the house and took Gun and hit butt of gun on the face of Ibrahim as a result of which the accused Ibrahim again fired on him. On commotion Ayoob and Gul Muhammad also arrived at the place of incident and saw the accused to whom complainant also narrated the facts of the incident. Thereafter, leaving the above two witnesses over dead bodies of five persons he went to Police Station Fazil Rahu and lodged F.I.R. During investigation accused were arrested and challan was submitted showing co-accused Zahoor Illahi as absconder, which was subsequently declared as proclaimed offender.
5. ' The accused were arrested and the Charge was framed on 8-2-2001 to which they pleaded not guilty and claimed to be tried.
6. ' The prosecution have examined complainant Muhammad Umer, P. Ws. Fateh Ali, Ayoob, W.M.O. Dr. Kaz Bano, P.W. Aroo (Mashir), P.W. Gul Muhammad, Tapedar Mushtaque Ali, Dr. Jan Muhammad, Corpse bearer LNC Nabi Bux, Investigating Officer Abdul Rahim, SIP Abdul Rahim who deposed on behalf of SIP Ghulam Muhammad Rind, thereafter the prosecution was closed its side.
7. ' The statements of the appellants were recorded under section 342, Cr.P.C. Wherein the appellants pleaded their innocence and claimed that they were falsely implicated at the hands of the complainant.
8. ' The appellants have also produced evidence by way of recording their depositions under section 340(2) Cr,P.C.
9. ' The learned trial Court after recording the evidence convicted and sentenced the appellants as stated herein above.
10. ' Heard Mr. S. Madad Ali Shah, learned counsel for the appellants and Mr. Mumtaz Alam Leghari, Asstt. A.G. For the State and perused the record.
11. ' Mr. Syed Madad Ali Shah, learned counsel for the appellants argued that the appellants have been falsely implicated in this case by the complainant Umer due to the reason that there was matrimonial dispute between the parties as Mst. Zebo deceased was daughter of deceased Poto and was married with the appellant Ibrahim while sister of the appellant Ibrahim was married with Gul Sher son of the deceased Poto. Learned counsel further argued that the presence of the complainant and the prosecution witnesses at the scene of incident was doubtful because they were residing at some distance from the house of the complainant, therefore, their evidence cannot be relied upon.
12. ' The learned counsel for the appellants further submitted that the depositions of the prosecution witnesses are full of contradictions and do not inspire confidence and cannot be relied upon to convict the appellants. He then submits that although the presence of Mst. Zarina was established from the evidence available on record but neither she was cited as a witness nor examined. He then submits that Ishaque and Noor was not named by P.W.2 Fateh Ali. He then submits that medical certificate was issued after two days without any cogent explanation; that no recovery of hatchet was made in presence of P.W. Aroo and the recovery of gun on the pointation of the mashir Aroo was doubtful; that the Investigating Officer who has completed the evidence and recorded statements of the prosecution witnesses has not been examined; that it has been established on record that F.I.R. Was lodged after consultation and unexplained delay. He further argued that the presence of the complainant and P.W. Fateh Ali was doubtful at the place of incident as five persons were killed and strangely they have received no injury which makes the case of the prosecution doubtful. He then submitted that the identification was made in the moonlight which also creates doubt regarding the identification of the appellants; that P.W. Fateh Ali who was a minor, was examined who in his deposition deposed that he hidden himself under the cot whereas the complainant deposed that he has saved himself by running towards him. He then argued that the recovered gun and empties were sent to the Ballistic Export on 18-5-2000 After the delay of seven months and that the Ballistic Expert report has not been put up to the appellants during the recording of their statements under section 342 hence cannot be relied upon. He lastly submitted that the motive has not been proved and in absence of any motive the involvement of the appellants are doubtful. The learned counsel has relied upon the following reported cases:--
(1) Syed Saeed Muhammad Shah v. State 1993 SCM R 550
(2) Javaid Iqbal v. State 1998 SCM R 32
(3) Akhtar Ali v. State 2006 SCM R 1466
(4) Wali Muhammad v. State PLD 1982 SC 55
(5) Hassan v. State 1969 PCr.LJ 1007.
13. ' On the other hand Mr. Mumtaz Alam Leghari Assistant A.G. Has supported the judgment and submits that the appellants were nominated in the F.I.R. And there was no inordinate delay in lodging the F.I.R. He then submits that since the appellants were previously known to the prosecution witnesses hence their identification in the moonlight was possible. He then argued that the recovery has been made and even if recovery could not have been made, the same would have no effect on the merits of the case and conviction could be awarded in absence of recovery.
14. He then argued that the ocular evidence has been supported by the medical evidence and that motive is clear and admitted by appellant himself in his evidence under section 340(2) Cr.P.C. He then argued that the recovery of gun from the appellant Ibrahim was fully proved. He lastly argued that the evidence available on record was sufficient to convict the appellants. He relied upon the following reported cases:-- ' Syed Junaid alias K2 v. State 2000 SCMR 601.
15. ' Mukhtar Ahmed v. State 2004 SCM R 220.
16. ' Sharafat Ali v. State 2003 M LD 1583.
17. ' We have heard the learned counsel for the parties and perused the record with the assistance of learned counsel for the parties.
18. ' In the incident five persons have lost their precious lives. The allegation against the appellant Ibrahim is that he caused murder of Poto, Zebo and Siddique and the allegation against the absconding accused Zahoor of murder of Ghulam Hussain and Mst. Marriam P.W.1 Umer complainant has deposed as under:-- "Accused Ibrahim had made firstly fire upon deceased Poto on his left shoulder, which hit him on it, and that accused Ibrahim made second gun fire on deceased Zebo which hit her on her right of chest. Then accused Ibrahim made another fire on deceased Siddique which hit on palm of his left hand and another injury on his side of body- (chest) (left). Co-accused Zahoor Punjabi made gun fire on deceased Ghulam Hussain which hit him on face and gun at my sister Zebo which hit her on throat. Thereafter accused Ibrahim also fired upon my uncle Siddique which hit him on his chest.
19. Co-accused Zahoor Punjabi fired from his gun at my father's sister Marriam which hit her on chest.
20. Co-accused Zahoor Punjabi also made gun fire upon my uncle Ghulam Hussain which hit him on his throat. The guns used in commission of the crime belonged to Ibrahim and Ismail. I concealed myself beneath the cot. After incident accused went away along with their weapons."
21. ' The other two eye-witnesses were Ayoob P.W.3 and Gul Muhammad P.W.6 who saw the accused persons running away with their weapons.
22. ' The medical officers who have conducted the postmortem were also examined. P.W.4 Dr. Kazbano confirmed that Mst. Zebo and Mst. Marriam died due to gun shot injury. P.W.8 Dr. Jan Muhammad confirmed that Poto, Siddique and Ghulam Hussain died due to fire-arm injury. The gun on the pointation of Ibrahim was recovered in presence of P.W.5 Aroo. Abdul Rahim was examined twice as P.W.10 and P.W.11 for the reason the during investigation he was transferred and handed over the investigation to Inspector Ghulam Muhammad Rind who retired during pendency of case and was not traceable.
23. ' The evidence available in this matter is as under :-
(1) Ocular evidence of P.W.1 Umer, P.W.2 Fateh Ali, P.W.3 Ayoob and P.W.6 Gul Muhammad.
(2) Medical evidence is available in the shape of deposition of doctors and postmortem reports.
(3) Circumstantial evidence in the shape of recovery of gun and empty shells, chemical examiner report regarding the blood stained earth and the clothes and report of Ballistic Expert regarding shotgun and empties.
24. From the evidence available on record it appears that the P.Ws.l and 2 are consistent in their depositions regarding the shots made by appellant Ibrahim and absconding accused Zahoor upon the deceased victims and in cross-examination their depositions have gone unchallenged. In the cross-examination the defence has tried to create doubt regarding their presence at the place of incident but have failed to challenge the incident and the allegations against the appellants. No doubt the P.Ws. 1 and 2 are related to each other and deceased persons but in absence of allegation of any ill-will against them their depositions cannot be discarded only on account of relationship. The evidence of P.W.1 and P.W.2 was fully corroborated by P.W.3 and P.W.6 who have seen the appellants running from the place of incident along with weapons. No ill-will was established against P.Ws.3 and 6 and nothing has been said in defence against them. The ocular evidence was fully corroborated by the medical evidence. The recovery of gun on the pointation of the appellant Ibrahim stands proved. The matrimonial dispute was admitted by the appellant Ibrahim in his evidence recorded under section 340(2), Cr.P.C. From the report of the Ballistic Expert it is confirmed that the empties recovered from the place of incident were fired from the gun recovered on the pointation of the appellant Ibrahim. The F.I.R, was lodged on the same day at about 2 p.m. And keeping in view the time of incident which was reported to be 11 p.m. And the distance of police station which is 1 1/2 KM away cannot be said to be inordinate delay. The P.W.2 in his cross-examination has admitted that his 161 statement was recorded after one week of incident. In absence of allegation of ulterior motives mere delay in recording the statement is not sufficient to discard the evidence. No question was asked from other eye witnesses in this regard.
25. Though learned counsel has argued that the crime weapon and crime empties were sent to experts after considerable delay but he has failed to point out any question put to the Investigating Officer in this regard. The reports have not been challenged in cross- examination of the Investigating Officer. No contradiction has been found in the depositions of the witnesses. Their evidence inspires confidence and is not shattered in cross-examination.
26. ' In our view the prosecution has fully proved the case against the appellant Ibrahim and no exception can be taken in this regard. However, keeping in view that the appellant is in Jail for the last about 10 years relying upon the reported case of Mujahid Akhtar Khurram v. Abdul Hamid PLD 2004 SC 339 while maintaining the conviction we alter the sentence from death to life imprisonment which in our opinion would meets the ends of justice.
27. As far as the appellant Nooro is concerned there was no allegation of any overt act against him.
28. His presence at the place of incident is doubtful as P.W.2 in his deposition has said nothing about him. The recovery of hatchet on his pointation was not proved. He has not participated in the commission of offence and mere his presence without any proof of some overt act in furtherance of common intention was not sufficient to convict him. Though the presence of Nooro was shown at the place of incident armed with hatchet but neither he used the same nor in any way participated in the alleged offence. In the reported case of Abdullah v. State 2006 SCM R 1466 the Honourable Supreme Court has held that "accused armed with lathi neither used the same nor participated in crime in any manner and his presence was doubtful." In view of the above the appellant Nooro is entitled to benefit of doubt.
29. ' In view of the above the conviction is maintained against the appellant Ibrahim but his sentence is altered from death to imprisonment for life and to pay 2,00,000 as compensation to the LRs, of deceased. In case of default in payment of compensation the appellant has to suffer additional R.I.
30. For 2 years. However he is entitled to the benefit of section 382(b) Cr.P.C. The appeal is allowed in respect of appellant Nooro who is acquitted by giving him benefit of doubt. He may be released forthwith if not required in some other case.
31. ' The reference submitted by the Trial Court answered in negative.