' IJAZ AHMAD CHAUDHRY, J.---Muhammad Ilyas alias Manna convict was convicted for an offence under section 302(b), P. P. C. Vide judgment, dated 26-3-2002. Rendered by the learned Additional Sessions Judge, Lahore for committing `qatl-e-amd' of Zaheer Butt deceased and was sentenced to death with direction to pay a sum of Rs,1,00,000 to the heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C. And in default of payment thereof to further undergo imprisonment for three years. Through the same judgment. Muhammad Pervaiz alias Kala, Muhammad Azam , and Muhammad Abid appellants in Criminal Appeal No,736 of 2002 were convicted under sections 337-A (iii)/34, P.P.C. For causing injuries falling under Shaja-e-Hashima to Muhammad Wasim alias Jugnu and Muhammad Javed injured P.Ws. And were sentenced to 5 years' R.I. Each as Tazir with direction to pay a sum of Rs,5,000 each as arsh to the injured persons and in alternative they were directed to further undergo imprisonment for 6 months. Benefit of section 382-B, Cr.P.C. Was also extended to them. Through the same judgment, Haji Muhammad Ilyas, Muhammad Tufail, Muhammad Riaz, Muhammad Javaid, Muhammad Mushtaq, Muhammad Arif, Muhammad Ijaz, Muhammad Pervaiz alias Kala Khan, Muhammad Abid and Muhammad Azam, were, however, acquitted of the charge by the learned trial Court while extending benefit of doubt to them.
' Muhammad Pervaiz alias Kala, Muhammad Azam and Muhammad Abid appellants have challenged their conviction and sentence before this Court through Criminal Appeal No,736 of 2002 while Muhammad Amjad appellant-complainant has filed Criminal Appeal No,1059 of 2002 against the acquittal of Haji Muhammad Ilyas, Muhammad Tufail, Muhammad Riaz, Muhammad Javaid, Muhammad Mushtaq, Muhammad Arif, Muhammad Ijaz, Muhammad Pervaiz alias Kala Khan, Muhammad Abid and Muhammad Azam and Criminal Revision No, 457 of 2002 seeking enhancement of sentence awarded to Muhammad Pervaiz alias Kala Khan, Muhammad Azam and Muhammad Abid respondents. It is significant to point out here that Muhammad Ilyas alias Manna convict disappeared at the time of announcement of judgment by the learned trial Court and has not filed any appeal against his conviction and sentence while the learned trial Court has sent Murder Reference No,298 of 2002 under section 374, Cr.P.C. Seeking confirmation of the sentence of death passed against Muhammad Ilyas alias Manna convict which has been heard by us along with the above said matters and we propose to decide all these matters jointly through the present consolidated judgment.
2. Succinctly the facts of the prosecution's case set up in the F.I.R. (Exh.PA/1) got lodged by Muhammad Amjad complainant (P.W.2) are that younger brother of the complainant namely Waheed Gul who was a handicapped and "Sain Loke" usually went out from the house. On the day of occurrence at about 8-00 a.m. The complainant left his house on motorcycle and when reached near Aatif Service Station, on the opposite of Service Station, on the shop of Manna Taily who used to deal in the business of scrape, three persons namely, Manna Taily, his brother and nephew whose names were not known to the complainant were beating Waheed Gul. The complainant enquired the reason for beating Waheed Gul, on which they started grappling with the complainant but the passers-by intervened and separated them. One of the passers-by namely, Rashid Waheed received injury on his head with a spade. The complainant informed his brother Zahir Ahmad about the occurrence who was running a shop near white mosque. Zahir Ahmad collected the members of the Union of the Market and informed them about the occurrence. Ch. Aamir Ali, the President of the Union stated that the matter should be reported to the police station whereupon the complainant along with Zahir Butt, Muhammad Javed, Sheikh Rashid, Arshad, Maqbool Ahmad, Muhammad Wasim alias Jugnu, Muhammad Akram, Muhammad Saleem, Khalil Ahmad, Haji Abdul Wahid, Ch. Aamir Ali and Haji Muhammad Saleem started proceeding towards Police Station to report the matter. When they reached in front of Aatif Service Station. Arshad Butt who was owner of the Aatif Service Station and Mian Iqbal asked them to sit over there as it was a minor dispute and after calling the other party the matter should be patched up. Thereupon, some of the people amongst the complainant party started sitting and some of them were even standing when suddenly Manna Taily, his brothers, one nephew and father whose names were not known to the complainant, Muhammad Din Butt and his three sons along with 4 passers by whose names and addresses were not known to the complainant came there and attacked the complainant party. Most of them were armed with iron rods, angle made of iron whereas Manna was armed with pistol. Two sons of Muhammad Din and the brother and nephew of Manna injured Muhammad Wasim alias Jugnu with iron rod. Muhammad Din and his son injured Javed with iron rods and raised lalkara to kill the complainant party. Zahir Butt was present inside the office of Aatif Service Station who bolted it from inside but 'the brothers and nephew of Manna Taily broke the glasses of the office, and Manna Taily started firing with fire-arm whereupon Zahir ran out of the office and fell down after striking with the wall and in a falling condition, Manna Taily in order to kill him fired two shots on Zahir Butt which hit in his belly. He was injured seriously but Manna made two more shots in the air. During this scuffle, some men from the complainant party were also injured. The complainant and his brother Haji Amjad and Ch. Aamir Ali removed the injured to Mayo Hospital for treatment and on reaching hospital the complainant came to know that Rukhsana a relative of Manna was also injured in the occurrence as she had tried to snatch pistol from Manna.
The accused ran away from the place of occurrence. Besides the complainant the occurrence was witnessed by Haji Muhammad Saleem (P.W.3), Haji Abdul Waheed, Ch. Aamir Ali.
3. The investigation of this case was conducted by Noor Ali, S.-I. (P.W.1 7), Muhammad Jamil, S.-I. (P .W.1 8) and Muhammad Tufail, S.-I. (P.W.20), and during, the investigation, the dead body of Zahir Butt deceased was inspected, injury statement and inquest report were prepared, statements of the witnesses under section 161, Cr.P.C. Were recorded, the place of occurrence was inspected, blood was secured through the help of cotton, a rough site plan of the place of occurrence was prepared, four empties of .30 bore pistol (Exh.P4/1-4) were taken into possession through recovery memo. (Exh.PE), the dead body of Zaheer Butt deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, a formal site plan of the place of occurrence was got prepared. Muhammad Ilyas alias Manna convict was arrested and recovery of pistol was effected from him and after completion of the investigation a challan was submitted in the Court.
4. At the commencement of the trial, the learned trial Court after supplying copies of the documents required under section 265-C, Cr.P.C. To the convicts appellants in Criminal Appeal No, 736 and the acquitted accused framed charge under sections 302/324/148/149, P.P.C. Against them on 22-5-2000 to which they pleaded not guilty and claimed for a trial.
5. During the trial the prosecution produced as many as twenty-two witnesses in support of its case against convict, appellants and the acquitted accused. The ocular account of the incident in question was furnished by Muhammad Amjad complainant (P.W.-2), Haji Muhammad Saleem (P.W.-3), Muhammad Waseem alias Jugnu (P.W.-4) and Muhammad Javed (P.W.-9) while the medical evidence was adduced by Dr. Hamid Bashir Haider (P.W.-16), Dr. Muhammad Ali (P.W.-19), Dr. Muhammad Waris Farooqua (P.W.21) and Dr. Fawad, Mumtaz Khan (P.W.-22). Nazir Ahmad, A.S.- I. (P.W.-13) on the receipt of complaint registered the F.I.R. (Exh.PA/1), while Ch. Hamid-ud-Din Chishti, Draftsman (P.W.-12) on the pointing out the witnesses and on the instructions of the police had prepared the rough site plans of the places of occurrence. Noor Ali, S.-I. (P.W.-15), Muhammad Jamil, S.-I. (P.W.18) and Muhammad Tufail, S.-I. (P.W.-20) deposed about the various steps taken by them during the course of investigation. The remaining evidence produced by the prosecution was more or less formal in nature.
6. In their statements recorded under section 342, Cr.P.C., Muhammad Ilyas alias Manna convict, appellant and the acquitted accused had denied and controverted all the allegations of fact levelled against them. By the prosecution and also professed their innocence. However Muhammad Ilyas alias Manna convict on a question that "Why this case against you and why the P.Ws. Have deposed against you? Made reply in the following terms:-- "This case was registered against me, my father, my brother, my "Phophizad" (aunt's son) and my friends due to previous enmity Muhammad Tufail is my father, Javed and Riaz are real brothers.
Haji Muhammad Ilyas and Muhammad Mushtaq alias Bhola are "Phophizad". Azam alias Munshi, Abid alias Babby, Arif, Ijaz and Parvaiz are my friends and later Ibrahim father of Abid alias Babby were also involved in this case due to blood relation and friendship. I am quite innocent. We did not attack upon the complainant party. All the recovery reports and other reports are false and fake in order to strengthen the prosecution case. The complainant party attacked upon the accused party and injured the real sister of mine and others. In fact we were aggrieved party. That all witnesses are relatives and interested witnesses of the prosecution."
' However, neither they opted to make statements on oath under section 340(2), Cr.P.C. Nor they produced any evidence in their defence.
7. Upon conclusion of the trial the learned trial Court acquitted the co-accused but after finding the prosecution's case against the appellants and the convict to have been proved beyond reasonable doubt, they were convicted and sentenced as mentioned and detailed above. Hence, all these matters before this Court.
8. Learned counsel for Muhammad Ilyas alias Manna convict contends that he is innocent who was falsely implicated in the present case and the prosecution had miserably failed to prove the case against the convict beyond any shadow of doubt; that the eye-witnesses are interested witnesses as they were related inter se and with the deceased closely; that in the F.I.R. It has been admitted that the accused party also received injuries during the incident, but those were not explained and the complainant party has magnified the role played by the accused while minimized the role played by the complainant party, that the eye-witnesses were not residents of the same area and they were chance witnesses who had not seen the incident; that the recovery was useless as the report of Forensic Science Laboratory is not positive; that in such circumstances, the convict is liable to be acquitted. In alternate it is argued that it was a case which would fall under section 302(c), P.P.C. And the sentence already undergone by the convict will meet the ends of justice.
9. Learned counsel appearing on behalf of the appellants in Criminal Appeal No,736 of 2002 has prayed for acquittal of the appellants and contended that two co-accused namely Muhammad Mushtaq and Muhammad Riaz with the same role as ascribed to the appellants have already been acquitted and the same evidence cannot be believed against the present appellants.
10. On the other hand, learned counsel for the complainant in Criminal Appeal No,1059 of 2002 filed by Muhammad Amjad complainant against the acquittal of the respondents has contended that they had participated in the incident with the convicts and all of them attacked upon the complainant party and the prosecution produced sufficient evidence to prove its case but they have been acquitted on flimsy grounds and they be treated in accordance with law.
11. The learned Additional Prosecutor General has supported the judgment of conviction and sentence.
12. We have heard the learned counsel for the parties at length and also gone through the record of this case with due care and caution.
13. The sad incident in the present case had taken place on 15-7-1999 at 8-00 a.m. In the area of Police Station Shad Bagh wherein Zaheer butt deceased along with Muhammad Waseem alias Jugnu and Muhammad Javed received injuries, who were taken to hospital and statement of the complainant was recorded in the hospital at 10-00 a.m. On the basis of which formal F.I.R. Was recorded at 11-15 a.m. The name of the convict Muhammad Ilyas alias Manna is duly mentioned in the F.I.R. That he was the accused who while armed with pistol had fired at Zaheer Butt deceased twice when he tried to run away from the room of service Station while Muhammad Azam and Muhammad Abid caused injuries to Muhammad Waseem (P.W.4) and Muhammad Pervaiz alias Kala along with Ibrahim (since dead) inflicted injuries to Muhammad Javed (P.W.9). During the trial the prosecution produced P.W.2 Muhammad Amjad Butt who is real brother of Zaheer Butt deceased and he supported the prosecution story. Though he is related to Zaheer Butt deceased but admittedly there was no previous enmity between the appellant and the P.Ws. And the deceased. So he was an independent witness who had no motive to falsely implicate the convict Muhammad Ilyas in the present case. Two other P.Ws. Namely, Muhammad Waseem alias Jugnu (P.W.4) and Muhammad Javed (P.W.9) were not related to the deceased or the complainant party.
They had only friendly relations with the complainant party and they also cannot be termed as interested witnesses. Presence of both these witnesses was not at all doubtful as they also received serious injuries during the incident. So their presence at the spot was established beyond any shadow of doubt and the three witnesses have made consistent statements that Muhammad Ilyas alias Manna while armed with pistol had fired repeatedly hitting in the abdomen of Zaheer Butt deceased while the appellants in Criminal Appeal No,736 of 2002 caused injuries to the injured (P.W.4 and P.W.9). All the three eye-witnesses were subjected to lengthy cross-examination but the defence has failed to gain anything in its favour and to cause any dent in the ocular account furnished by the three eyewitnesses. Had the eye-witnesses any intention to falsely implicate the accused who were huge in number, it was very easy to implicate another accused for firing at the deceased as when the deceased was medically examined, two entry wounds were found as per Medico-legal Report which was prepared immediately after the incident at Mayo Hospital, Lahore, which were attributed to Muhammad Ilyas alias Manna convict only and we have no doubt in our mind that the injuries attributed to Muhammad Ilyas alias Manna convict has been received by him from the hands of the appellant and the said injuries were sufficient to cause death in the ordinary course of nature. Even otherwise, it was a daylight occurrence in which both the parties were injured and they were known to each other. As such there was no chance of misidentity of the appellants/convicts. Moreover, the time and place of occurrence show that this occurrence could not go unwitnessed. There does not appear any reason from the evidence on record about false implication of the convicts/ appellants, by letting off the real culprits. Thus we find that the ocular account to the extent of the appellants is fully reliable and confident.
14. The motive of the incident was alleged that the convict and his companions were beating real brother of Zaheer Butt deceased in the earlier incident who was mentally distorted. It is also established on the record that the eye-witnesses were present as number of persons had come at the service station from the accused side. Though some scuffle had taken place as it is admitted in the F.I.R. And during the cross-examination by the eye-witnesses that the accused also received injuries but it seems that their injuries are not at all serious in nature and they did not appear before the doctor for their medical examination.
15. The ocular account is also supported by the medical evidence while time and the place of incident was also not specifically denied by the defence as well. The recovery of weapon from Muhammad Ilyas alias Manna cannot be used as corroborative piece of evidence to the ocular account as report of the Forensic Science Laboratory did not show that the empties allegedly recovered from the spot were fired with the said weapon. The C motive of the incident was also established as P.W.2 Muhammad Amjad complainant and Haji Muhammad Saleem (P.W.3) categorically supported the motive and it is also admitted fact that there was no previous enmity between the parties and the incident earlier to the present incident had taken place in which Muhammad Ilyas alias Manna convict along with his companions had beaten brother of the complainant who was mentally distorted and due to this reason the dispute arose against the accused party and the complainant and the other P.Ws. had gone to the shop of Zaheer Butt deceased from where they were going to police station for lodging complaint against the accused party but on the intervention of the owner of the service station they were stopped for making patch up where the instant untoward incident had taken place. In such circumstances, it is also borne out from the record that the incident had taken place at the spur of the moment when the complainant party and the accused party were trying to patch up the matter.
16. As a result of above discussion, we find that the prosecution has succeeded in proving the case against Muhammad Ilyas alias Manna convict and his conviction under section 302(b), P.P.C. For committing qatl-e-amd of Zaheer Butt deceased and also against Muhammad Azam, Muhammad Abid for causing injuries to Muhammad Waseem (P.W.4) and against Muhammad Pervaiz alias Kala for causing injuries to Muhammad Javed (P.W.9) under section 337-A(iii), P.P.C. Is maintained.
17. So far as quantum of sentence is concerned, it is admitted fact that the incident had taken place at the spur of moment without any premeditation and it is also admitted by the complainant and other witnesses in their statements that the persons from the accused party also received injuries during the scuffle at the spot. It is also admitted fact that the incident had taken place in front of the shop of the appellant and the complainant party had their place of business and residence at a reasonable distance. The motive pait also discloses that it was the complainant party which had grievance against the accused D due to causing of injuries by them in the earlier incident to the brother of the complainant and Zaheer Butt deceased who was Sain Loke. In such facts and circumstance of the case we are of the view that imposing of death penalty against Muhammad Ilyas alias Manna is a harsh order, which is converted into life imprisonment. The compensation is also maintained, but in default of payment thereof he shall further undergo S.I. For six months. The learned Sessions Judge shall issue process against Muhammad Ilyas alias Manna for his committal to jail to serve out the sentence.
18. Similarly, keeping in view the above situation, the sentence awarded to Muhammad Abid, Muhammad Azam and Muhammad Pervaiz alias Kala appellants, who are facing the agony of the trial since 15-7-1997 and have already undergone sufficient period of imprisonment, is reduced to the period already undergone by them. However, they are directed to make payment of Arsh imposed by the learned trial Court amounting to Rs,5,000 each to each injured P.W. Muhammad Waseem alias Jugnu (P.W.4) and Muhammad Javed (P.W.9), which shall be deposited in the learned trial Court for onward disbursement to the injured P. Ws. Within a period of two months, failing which they will undergo the imprisonment as directed by the learned trial Court. Criminal Appeal No,736 of 2002 filed by them is disposed of accordingly.
19. In view of the above discussion we do not find any merit in Criminal Appeal No,1059 of 2002 against the acquittal and Criminal Revision No,457 of 2002 for enhancement of sentence, which are dismissed.
20. The death sentence awarded to Muhammad Ilyas alias Manna convict is not confirmed and Murder Reference No,298 of 2002 is answered in the negative.
' Death sentence Not Confirmed/ Sentence Reduced as Undergone.