' CH. MUHAMMAD TARIQ, J.---The appellants-convicts Muhammad Shehzad and Faizullah have filed Criminal Appeals Nos.228 of 2008 and 354/2008 respectively against their conviction and sentence awarded to them in case F.I.R. No,38, dated 12-5-2006 while the complainant Wajid Ali has filed Criminal Revision No,118 of 2008 for enhancement of sentence of the appellants-convicts from life imprisonment to death. This single judgment shall dispose of the said appeals as well as the criminal revision, as all these arise out of one and the same judgment dated 25-9-2008 passed by Raja Ghazanfar Ali Khan, learned Additional Sessions Judge, Jhelum who has convicted and sentenced both the appellants-convicts as under:-
(i) Under section 302(b)/34, P.P.C.
' Imprisonment for life as Tazir with direction to pay Rs.100,000 each as compensation to the legal heirs of the deceased Aamir Javed under section 544-A, Cr.P.C. And in case of non-payment of compensation, to further undergo six months S.I.
(ii) Under section 324/34, P.P.C.
' 10 years' R.I. With fine of Rs.50,000 each and in default of payment of fine, to further undergo imprisonment S.I. For six months each.
' Benefit of section 382-B, Cr.P.C. Was extended to both the accused and the sentences were ordered to run concurrently.
2. According to the F.I.R. Lodged on the complaint of Wajid Ali on 12-5-2006 at 3-00 a.m., the complainant is resident of Domeli and is the owner of AJK property center while Aamir Javed s/o Rehmat Khan is his partner. On 12-5-2006 at 9-00 p.m., he and Aamir Javed along with their wives, went to the in-laws of Aamir Javed at Bara Gawah on a car bearing registration No,LZM-488 and while returning home to Domeli at 1-30 a.m. When they reached in front of Union Council Domeli, the accused namely Faiz Ullah armed with .222 bore, Shehzad armed with .30 bore pistol, Naazir alias Manazar armed with .30 bore pistol and Muhammad Yasin armed with .30 bore pistol, already ambushed there, suddenly appeared. All the accused were identified by the complainant as well as Aamir Javed in the lights of the car. Faiz Ullah appellant-convict fired with .222 bore which hit Aamir Javed near his left shoulder. Shehzad appellant-convict fired with .30 bore pistol hitting the complainant on his right shoulder. Then the accused fled away while making firing. Naveeda Wajid, wife of the complainant and Samina Aslam w/o Aamir Javed who were sitting on the rear seat of the car were saved luckily. The injured were taken to hospital, where Aamir Javed died on 22-6- 2006.
3. The motive behind the occurrence as stated in the complaint/F.I.R. Is that one day prior to the occurrence at 7-00 p.m., Aamir Javed and Faiz Ullah etc., had exchanged abusive language and grappling and due to that grudge, the accused after mutual consultation attacked the complainant and Aamir Javed with the intention to kill them.
4. After culmination of the investigation, the challan was submitted in the learned Trial Court under section 173, Cr.P.C. The copies as required under section 265-C, Cr.P.C. Were supplied to all the accused. The charge was framed which was denied by all the four accused who rather pleaded not guilty and false implication. In order to prove its case, the prosecution produced as many as 17 witnesses, out of which four were given up.
5. The ocular account was furnished by the complainant/P.W.15 Wajid Ali and P.W.14 Mst.Samina Aslam, widow 01' the deceased who reiterated the contents cf the F.I.R.
6. During the trial, Ali Akbar Shah, A.S.I./Investigation Officer deposed that he went to the RHC Domeli, recorded the statement of the complainant/injured while the statement of Aamir Javed being seriously injured and in drowsy condition at that time could not be recorded. The I.O.
Inspected the place of occurrence in presence of the P.Ws., secured four empties of .44 bore rifle and six empties of .30 bore pistol from the place of occurrence, secured blood with cotton from the driving seat and second seat of the car, took into possession blood-stained shirt of Wajid Ali complainant and shirt of Aamir Javed injured, prepared rough as well as scaled site plan and took into possession car No,LZM-488. The I.O. Also recorded the statement of P.Ws. On 26-5-2006, the I.O.
Arrested the accused Naazir alias Manazar, Muhammad Shehzad alias Bhutto and Muhammad Yasin. During the interrogation, on the pointation of Naazir alias Manzar accused, the I.O. Recovered .30 bore pistol along with five live bullets which were taken into possession by the police and secured. On 27-5-2006, Muhammad Shehzad, appellant-accused and Muhammad Yasin accused led to the recovery of .30 bore pistol with six live bullets and .30 bore pistol with five live bullets respectively which were also taken into possession by the police and secured. As the said accused could not produce licenses of the weapons recovered on their pointation, criminal cases under section 13.20.65 A.O. Were also registered against them. On the death of Aamir Javed on 22-6- 2006, the I.O. Prepared inquest report and arranged post-mortem of the deceased and after the post-mortem last worn Shalwar of the deceased was taken into possession by the police. In the meanwhile, the bailable and non-bailable warrants of Faiz Ullah accused were also got issued by the police but he could not be arrested. Thereafter, Ali Akbar Shah, A.S.I./I.O. Was transferred and the case was entrusted to Muhammad Masood Inspector/S.H.O. For further investigation who arrested accused Faiz Ullah on 19-8-2006 and on his pointation, .44 bore rifle with five live bullets was recovered from his house situated in village Domeli. Since Faiz Ullah could not produce any license, a separate case on this count was also registered against him. P.W.2, Sajjad Hussain HC/822 deposed that the crime empties recovered from the place of occurrence as well as the weapons of offence recovered on the pointation of the accused and the blood-stained cotton were sent to Forensic Science Laboratory and the office of Chemical Examiner for comparison/ analysis.
7. Thereafter, the accused were examined under section 342, Cr.P.C. In reply to question "why this case against you and why the P. Ws. Have deposed against you", all the four accused deposed that the deceased and the injured P.W. Were swindling the persons by false pretext of selling the land and the accused used to inform the persons about the illegal designs of the complainant as well as the deceased Aamir Javed. Due to that grudge, the accused have been falsely implicated in this case.
8. The other witnesses being formal in nature need not to be discussed here.
9. After culmination of the trial, the learned Trial Court acquitted accused Nazir alias Manazar and Muhammad Yasin of the charge while convicted and sentenced Muhammad Shehzad and Faizullah as mentioned above.
10. Learned counsel for the appellants has chiefly contended that there is no injury on any of the vital parts of the deceased and just the injuries have been inflicted on the shoulders of the deceased which in no way can be termed as fatal. He avers that the death in this case has occurred 1 1/2 months after the occurrence which is not due to the injuries but due to the negligence on the part of the doctors/staff, there developed puss inside the wounds which caused septicemia and ultimately Aamir Javed died and this fact has been admitted by the doctor during cross-examination.
' Further contends the medical evidence does not corroborate the ocular account, the arms shown in possession of appellants do not coincide with the dimension of injuries. Further contends that there are material contradictions in the statements of the witnesses who cannot be relied upon.
Further contends that according to the prosecution, the assailants were standing on both sides of the car in opposite direction to each other and if this is believed to be true, then there is grave apprehension of injuries to the accused themselves. Further contends that the impugned judgments is based on surmises and conjectures and is the result of mis-reading and non-reading of evidence. He prays that the appeals filed by the appellants be accepted, the impugned judgment be set aside and the appellants be acquitted of the charge.
11. Learned counsel for the complainant contends that the F.I.R. Has been lodged promptly wherein the accused are clearly nominated with specific roles as well as with weapons of offence. Further contends the parties belonging to the same town and vicinity are known to each other and there is no chance of mis-identification. Further contends that the eye-witnesses include an injured witness which itself proves his presence at the spot and that they are the natural witnesses. Further contends that there is no contradiction in the statements of the eye-witness who have even no relationship inter se as well as no previous enmity against the accused, there is no chance of false implication and they have fully corroborated each other on each and every point. Further contends that the medical evidence and the report of Chemical Examiner as well as the report by Forensic Science Laboratory fully support the prosecution version. Further contends that the unexplained abscondence on the part of the accused ipso facto proves that their involvement in the case.
Learned counsel for the complainant contends that the learned trial Court even admitting that the prosecution has proved its case beyond any shadow of doubt, has awarded lesser sentence to the appellants which be enhanced to death.
12. Learned Deputy Prosecutor General Punjab appearing on behalf of the State seconds the arguments put forth by the learned counsel for the complainant and have fully supported the impugned judgment.
13. I have heard the arguments advanced by the learned counsel for the parties as well as the learned DPG and have also gone through the record available on file.
14. P.W.15 Wajid Ali is the injured witness of the case, so his presence at the A spot cannot be denied.
He has fully implicated the appellants in the occurrence. Formal F.I.R. (Exh.PT/1) was chalked out at 3-00 a.m. Both the injured were handed over to Mazhar Hussain, constable/P.W. For medical examination. The medico-legal reports of Aamir Javed deceased (Exh.P.A) and Wajid Ali (Exh.PD) prove that their medical examination was conducted at 3-30 a.m. On 12-5-2006. The sequence of events and their timings establish th*t there is no delay whatsoever in lodging of F.I.R. Similarly, the medical examination of both the injured namely Wajid Ali complainant and Aamir Javed deceased was well in time. All the above facts prove that it is a case of promptly lodged F.I.R. Moreover, P.W.14 namely Mst. Samina Aslam fully corroborates the ocular account of the prosecution case. Her presence is also mentioned in Exh.PT and in the contents of the F.I.R. (Exh.PT/1), she appears to be a natural witness. There is no doubt about identification of accused persons by the complainant who is an injured witness as well as by Mst.Samina Aslam P.W.14 who identified the accused persons in the headlight of the car particularly the accused persons were residents of the same area and familiar with each other. The occurrence' and place of occurrence is fully established The ocular account is fully corroborated by medical evidence. Despite the fact that the' eye-witnesses were subjected to lengthy cross-examination, the defence has failed to put a dent in the prosecution evidence.
15. An important question about the cause of death of the deceased Aamir Javed rises from the statement of P.W.3 Dr.Zahid Ali Medical Officer who during the cross-examination has stated that he has studied Parekhs jurisprudence and has read different books on the subject of Anatomy. He states that injury No,1 is on the posterior lateral aspect of the deltoid region. He further observes as follows:--- "I observed puss in lungs. Puss can cause septicemia. Septicemia can cause death if not properly treated. The intubation did not cause the puss. It was used to drain the puss. This does not happen in my view. I cannot tell the date of intubation, and the place of intubation. I cannot tell the name of the person conducting intubation. I have reached at the conclusion that intubation was caused to remove the puss as a result of my experience, location of injury and nature of injury. Intubation is also done for draining of blood in cavity. It is possible that intubation was caused to drain the blood from the cavity. It is also possible that the puss might had been createddue to negligence of the staff."
16. The deceased Aamir Javed remained in the hospital till 22-6-2006 when he died (about 40 days after the occurrence) and at the time of his death, he had bed sores on his backside, as observed by the doctor/P.W.3.
17. In the light of observation made by P.W.3 Dr.Zahid Ali, Medical Officer, I find that the cause of death could be septicemia which might have been created due to the negligence of staff of the injury caused by the appellants-convicts. In the circumstances, there arises a doubt with regard to cause of death, the benefit of which should always go to the accused and not to the prosecution.
Therefore, I feel that the appellants-convicts should have been awarded lesser punishment. Thus, the Criminal Appeals Nos.228 of 2008 and 354 of 2008 filed by Muhammad Shehzad and Faizullah respectively are partially allowed, the conviction of the appellants is converted from section 302(b), P.P.C. To section 302(c), P.P.C. And the sentence of life imprisonment awarded to them under section 302(b) is reduced to 10 years' R.I. Each. However, the sentence with regard to compensation amount awarded to the appellants by the learned trial Court is maintained. The conviction and sentence awarded by the learned trial Court under section 324/34, P.P.C. Is also. Maintained. The benefit of section 382-B, Cr.P.C. Already granted to the appellants-convicts shall also continue.
18. The Criminal Revision No,118 of 2008 filed by the complainant Wajid Ali for enhancement of sentence to the appellants is dismissed.