Hassan Raza Pasha, J.--The appellants Muhammad Aslam, Zafar Hussain, Amin, Khairat Hussain, Sultan Mehmood, Safdar Hussain, Rauf, Akhtar Hussain have challenged the judgment dated 06.04.2006, passed by the learned Additional Sessions Judge, Sahiwal, in private complaint titled Rehmat Ali Vs Kairat Hussain etc. u/Ss. 302/324/148/149 PPC at P.S. Ka9sowal District, Suhiwal, through Criminal Appeal No, 176 of 2006. The appellant Muhammad Aslam has been convicted u/S. 302(b)/149 PPC and sentenced to death as Tazir', along with compensation to the tune of Rs,2,00,000/- to the legal heirs of the deceased u/S. 544-A Cr.P.C, in default whereof to further undergo S.I. for six months. The amount of compensation was to be recovered as arrears of land revenue. He was also convicted u/S. 148 PPC and sentenced to one year R.I. The appellants Zafar Hussain and Muhammad Amin have been convicted u/S. 302(b)/149 PPC and sentenced to life imprisonment each alongwith compensation of Rs, 10,0000/- each to the legal heirs of the deceased and in default whereof to further undergo S.I for six months each. The appellant Zafar Hussain and Muhammad Amin have also been convicted u/S. 148 PPC and sentenced to R.I for one year. The appellant Sultan Mehmood, Khairat Hussain and Rauf have been convicted u/S. 337- F1/149 PPC and sentenced to one year R.I each and to pay Daman of Rs,5000/- each and in default whereof they will remain in jail till its realization for causing injuries to Abdul Aziz alias Abdul injured PW. They were also convicted u/S. 148 PPC and sentenced to one year R.I each. The appellant Sultan Mehmood, appellant was also convicted u/S. 337AI/I49 PPC for causing injury to injured Tahir Maqbool and sentenced to undergo one year R.I and Daman of Rs, 5000/- to be paid to the injured PW and to remain in jail till its realization. The appellants Safdar Hussain, Akhtar Hussain and Itauf have also been convicted u/S. 337-F1/149 PPC for causing injures to Tahir Maqbool and sentenced to one year R.I each and to pay Daman of Rs,5000/- each and to remain in jail till its realization. The complainant Rehmat Ali has also filed PSLA No, 22 of 2006 against the said judgment regarding acquittal of accused Sabir, Faiz and Tariq Mehmood. The complainant has also filed the Criminal Revision No, 409 of 2006 for enhancement of sentence to the extent of appellants Khairat Hussain, Sultan, Safdar, Rauf, Akhtar and to enhance the compensation amount to the extent of Respondent No, 1 and to award capital punishment to the appellants Zafar Hussain and Amin. The learned trial Court has also submitted Murder Reference No, 306/2006, seeking confirmation of death penalty or otherwise. As all these matters are interlinked and interconnected so are being taken up together.
2. Briefly stated the facts of the complaint Ex.PE are that Khairat Hussain and Zafar Hussain appellant are real brothers inter-se, Safdar and Amin are real brothers interse and they all four are cousins too. Aslam and Sultan accused are nephew of Zafar etc. Tariq accused is son of cousin of Zafar accused. Faiz Sultan accused is cousin of Zafar I tussah) etc. and Zafar accused is brother- in-law of Faiz accused. Rauf accused is also Mamoonzad of Zafar accused etc. Sabir accused is from brotherhood of Zafar accused. Akhtar accused is Mamoonzad of Zafar accused etc. and they all are residents of the same village. On 17.09.2003, at about 12.00 noon, the complainant along with Abid deceased, Tahir, Ahmad Ali, Mukhtar were coming back to their village 101/12-L, from Chak No, 17/14-L Chichawatni, after saying Fateha Khawani of one Nazir Jatt. When they reached near the More of Chak No, 17/14-L, the accused persons namely Zafar Hussain, Khairat Hussain, Muhammad Aslam, Sultan Mahmood, Safdar, Amin, Sabir, Rauf, Faiz Sultan, Akhtar Hussain and Tariq Mahmood while armed with fire-arms suddenly appeared there from the cotton crop where they had hidden themselves and started firing upon the complainant, party. Within their view, Aslam accused made a tire shot with his rifle, which landed on Abid Hussain at left side underneath the ear, then accused Zafar made two successive fire shots out of which one hit on the back of left shoulder and second hit underneath the neck of Abid Hussain deceased. Then accused Amin made a fire shot which hit Abid on the back of his right. chest. Abid fell down. Then accused Safdar made a fire shot which hit 'l'ahir Maqbool on his genital parts. Rauf made fire shot with his rifle, which hit Tahir Maqbool at his left knee, he repeated the fire shot, which hit Abdul on his right knee. Akhtar accused made a fire shot, which hit Tahir Maqbool on his left calf, Sabir accused made fire shot, which landed on right knee of Tahir Maqbool. Then Khairat Hussain made a fire shot with his rifle, which hit Abdul at his right forearm, Sultan accused made a fire shot whith landed on left hand's fingers of Abdul. Injured persons fell down after receiving the above said fire shots. When the accused persons were questioned through Lalkaras by the complainant party, then Tariq Mahmood and Faiz accused started -making aerial firing with their respective weapons and fled away from the spot. When they attended Abid Hussain, he succumbed to the injuries at the spot.
3. Motive behind the occurrence was that in the year 1999 -father of Aslam accused had been murdered and that case had been registered against the complainant party. Abid Hussain (deceased), Tahir and Abdul Aziz were convicted and sentenced by the Court of learned Additional Sessions Judge, Chichawatni in June 2003 and thereafter, released on bail by the order of Lahore High Court, Multan Bench, Multan. But to take revenge of murder of Walayat Hussain father of Aslam accused, the accused persons committed the occurrence.
4. The complainant firstly got registered case FIR No, 214/2003, u/S. 302/324/148/149 PPC, P.S Kassowal, Tehsil Chichawatni District Sahiwal. Afterwards, the complainant filed private complaint stating therein that in the FIR he has not nominated the accused Younas as he was not present at the time of occurrence rather instead of Younas, Sabir accused participated in the occurrence.
Further stated that the local police was hand in glove with the accused party from the very beginning declaring all the accused persons innocent except Akhtar Hussain and Safdar Hussain.
So, both the state case and complaint case were consolidated vide order dated 10.3.2005 and the proceedings were conducted in complaint case.
5. After recording cursory evidence, all the accused persons were summoned to face the trial. They were formally charged u/Ss. 302/324/148/109 PPC to which they pleaded not guilty and claimed the trial.
6. In order to prove its case prosecution produced as many six PWs and eight witnesses were recorded as Court witnesses. Dr. Amir Hussain, Medical Officer was examined as PW.6, who medically examined Abdul Aziz injured on 17.9.2003 at Rural Health Center, Kassowal, and found as many as 'seven injuries on his person. On the same day, he also medically examined Tahir Maqbool injured and observed as many as five injuries on his person. On the same day, he conducted postmortem examination on the dead body of deceased Abid Hussain at about 4.00 p.m. and found four injuries on his person. In his opinion, cause of death was due to Injury No, 1 leading fracture of 3rd cervical vertebrae and haemorrhage shock and- death, which was ante-mortem injury. Probable time between injury and death was immediate and between death and post- mortem was two to four hours.
7. The ocular account was furnished through injured Tahir Maqbool who appeared as PW-1 and deposed the same story as narrated in the complaint Ex.PB. Abdul Aziz injured appeared as PW.2 who made similar statement to that of PW-1. The complainant appeared as PW-3 who also reiterated the contents of private complaint.
8. CW.4 Muhammad Younas SI partially investigated the case. On 17.9.2003, Rehmat Ali complainant appeared before him and got recorded his statement. Thereafter; he inspected the place of occurrence, examined the dead body of the deceased and prepared injury statement Ex.CW.6/A and inquest report Ex.CW.6/B. Then he collected the blood stained earth and took the same into possession vide recovery memo. Ex.CW.6/W. He also took into possession motorcycle Honda 125-CC from the spot vide recovery memo, Ex.CW.6/F and motorcycle Yamaha vide recovery memo. Ex.CW.6/G. He also prepared injuries statement of Abdul Aziz alias Abdul PW as Ex.CW.6/H and Tahir Maqbool PW Ex.CW.6/K. He arrested Safdar Hussain and Akhtar Hussain accused on 25.9.2003. l le recorded the statements of the PWs u/S. 161 Cr.P.C. Then investigation of this case was transferred from him. Thereafter, Muhammad Younas S.I. investigated this case. On 6.10.1003, he arrested Aslam Mahmood, Abdul Rauf, Sultan Mehmood and Faiz Sultan accused persons. He got recovered rifle 7 mm P-4 from his residential house situated in the area of Chak No, 101/12-L Chichawatni which was made into a sealed parcel and was taken into possession through recovery Memo. Ex.CW-4/A. On 9.10.2003, Safdar Hussain got recovered rifle .44-bore P-5 from his residential house 101/12-L, which was made into sealed parcel and taken into possession through recovery memo. CW.4-C. On the same day, Akhtar Hussain got recovered .12- Imre gun P-6 from his residential house, which was made into sealed parcel and taken into possession vide Ex.CW- 4/E. He recorded the statements of PWs u/S. 161 Cr.P.C. He found Safdar Hussain and Akhtar Hussain guilty and all the other accused as innocent.
9. The appellants Muhammad Aslam, Zafar Hussain, Amin, Khairat Hussain, Sultan Mahmood, Safdar Hussain, Raoof and Akhtar Hussain, in their statements u/S. 342 Cr.P.C. denied the allegations levelled by the prosecution and . recoveries allegedly made during investigation. All the appellants while answering the question 'why this case is against them and why the PWs deposed against them, replied as under: 'They have been falsely involved in this case, rather deceased Abid Hussain and PWs Tahir Maqbool and Abdul Aziz went to the place of occurrence for forcibly taking the possession of a hotel of one Mukhtar Ahmad, on the asking of Dr. Mazhar and a cross firing took place between both the parties as a result of which Abid was murdered; Tahir Maqbool and Abdul Aziz alias Abdul were injured. All the accused further deposed that all the PWs are not only related inter-se but they are also closely related to the deceased, so they are interested and inimical witnesses, who have falsely deposed against the accused. All the PWs are not convincing and reliable one and they prayed for their acquittal'.
All the appellants did not opt to appear on oath u/S. 340(2) Cr.P.C. as their own witnesses in disproof of the allegations levelled against them. All the appellants except Khairat Hussain also did not opt to produce their defence evidence.
10.Learned counsel for the appellant/accused contends that the prosecution version is unnatural, unbelievable, false and concocted one, as ,firstly in the FIR one Younas was nominated but afterwards in complaint case, which was filed after lapse of eight months, Younas waS substituted by his brother Sabir when it came into the knowledge of the complainant and PWs that at the time of occurrence he was in Saudi Arabia. There is no independent person in support of the prosecution version. The medical evidence is also not supporting the prosecution version. It is contended that just to take revenge of previous enmity, which is admitted by the complainant in motive part of the complaint, as many as 11 persons of the accused party have been nominated by the complainant party. It is next contended that the prosecution has miserably failed to establish its case against the accused persons beyond any shadow of doubt and benefit of doubt always goes to the accused. It is next contended that the complaint was filed after eight months of the occurrence with due deliberation and consultation. It is next contended that the injured Tahir Maqbool appeared as PW-1 and admitted during . cross-examination that the legal heirs of Walayat Hussain deceased made statements before this Court waiving their right of Qisas arid pardoning accused Khalid etc. so in the presence of compromise there was no need to take revenge of the murder of Walayat Hussain deceased. It is also contended that the said PW also admitted during cross- examination that the accused of instant case were' witnesses in the earlier murder case so enmity between the parties is proved. Said witness also admitted that different cases of dacoity and murder were registered against the deceased Abid. He also admitted that Nazir A hinad Jatt of Chak No, 17/14-L had not died and they had not gone for his condolence, which disproves the presence of the alleged eyewitnesses at the place of occurrence, as it was stated in the FIR that the witnesses had gone to said Chak for condolence of said Nazir Jatt. PW-1 categorically negated the death of Nazir Jatt. It is further contended that PW-4 also admitted registration of four FIRs against him. CW-4 Muhammad Younas S.I. who partially investigated this case, verified the first version of the appellants/accused recorded by him. It is further contended that empties were recovered from two different places, which shows that firing was made on two places, which negates the whole story of the complainant side. It is further contended that mere presence of injured PWs at the place of occurrence is not sufficient to consider their statements, as trustworthy and independent corroboration is required, which is lacking in this case. Itis added that detail of each and every fire has been mentioned in the FIR as well as in the statements of witnesses in a mechanical manner, which is not humanly possible. It is added that substitution of Younas with Sabir also negates the veracity of prosecution story. The recoveries have also been disbelieved by the learned trial Court. It is finally added that motive stands disproved in view of compromise effected in the earlier murder case registered against the complainant side. It is finally added that nothing was recovered from any of the accused except Safdar and Akhtar.
11. On the other hand learned DPG for the state and learned counsel for the complainant have argued that the prosecution has successfully proved its case against all the accused persons. The motive behind the occurrence is proved as previous enmity is admitted between the parties, as Walayat Hussain father of Aslam accused was murdered for which deceased Abid Hussain and other injured persons were booked and sentenced but afterwards released on bail and to take revenge, all the accused persons committed the occurrence, murdered Abid Hussain deceased and injured the others. It is argued that the identification of the accused persons is not disputed as accused party and complainant live in the same village and fully acquainted with each other. The medical evidence also supports the prosecution version. It is further argued that the complainant and the injured PWs have deposed in a natural manner. The police was in league with the accused party, therefore, I.O. declared all the accused persons innocent except Safdar Hussain and Akhtar I lussain and the complainant had left with no option' but. to file private complainant and it is settled principle of law that findings of the police are not binding on the Courts. It is submitted that empties were secured from the place of occurrence, which are even mentioned in the site plan. It is mentioned in the FIR that the witnesses went to Nazir Ahmad Jatt for condolence and it is nowhere mentioned that said Nazir Ahmad Jatt had died. It was a day light occurrence so there was no chance of misidentification. It is also submitted that date, time and place of occurrence have been admitted by the defence side but in different mode and manner. Defence taken by the accused persons is just an after thought and they have also not produced Mukhtar with whom the dispute of land has been alleged. It is further submitted that only Khalid accused of earlier murder case was pardoned by the legal heirs of the deceased and not the co-accused. The doctor Amir Hussain who appeared as PW-6 was not cross-examined except Abdul Aziz. The accused persons and the witnesses were very well known to each other. It. is added that total thirteen injuries were caused to the deceased and the injured persons, which speaks of the brutality of the occurrence.
12.We have heard the arguments advanced by learned counsel for both the sides and have perused the record minutely with their able assistance.
13.Tahir Maqbool PW-1 stated that one year nine months back, he alongwith Abid Hussain, Mukhtar Hussain, Ahmad Ali, Abdul Aziz and Rehmat was coming back after saying Fateh Khawani of Nazir Ahmad Jatt at Chak No, 17/14-L, then at once Zafar Hussain, Aslam Amin, Tariq, Rauf, Safdar, Akhtar, Khairat, Faiz, Sabir all armed with rifles and Sultan armed with .12-bore gun came there from front side. Then the said PW narrated the injuries caused by the accused persons. He also narrated the motive behind the occurrence that Walayat Hussain father of Aslam accused was murdered four years back and for which Abid Hussain deceased, he, Abdul Aziz alias Abdul, Maqsood Ahmad Azhar, Maqbool Ahmad, Ali Raza, Khalid Jahangir, Rehmat Hussain were convicted. He further stated that except above-said, Khalid, they all were released on bail by the High Court. The other eyewitnesses Abdul Aziz alias Abdul as PW-2 and Rehmat as PW-3 also reiterated the contents of private complaint. The statements of all the eye-witnesses are in line with each other on material points i,e, seat of injuries, attribution and the weapons of offence, which also finds corroboration from the medical evidence. The fatal injury i,e, Injury No, 1 has been attributed to the appellant Muhammad Aslam. The defence plea taken by the accused/appellants is that there was dispute of land between Mukhtar Ahmad Hotelwala and Dr. Mazhar situated at the MOR of Chak No, 17/14-L.
The 'deceased, Tahir Maqbool and Abdul Aziz PWs had gone to the MOR of Chak No, 17/14-L for forcibly occupying the hotel of said Mukhtar Ahmad on the asking of Dr. Mazhar where companion of Mukhtar Ali mad- were also present and due to cross-firing between the two groups Abid Hussain died and the others received injuries. But said Mukhtar Ahmad was neither joined in the investigation nor produced in evidence by the complainant side. The complainant also did not move any application to summon said person as Court witness so the plea taken by the accused is not at all plausible and cannot be believed.
14. Enmity between the parties is also admitted. It has been stated in the FIR that the complainant alongwith witnesses went for offering Fateh Khawani of Nazir Ahmad Jatt and when they were coming back, the occurrence took place. It has been contended on behalf of the appellants/convicts that PW-1 Tahir Maqbool during cross-examination admitted that Nazir Ahmad Jatt had not died and they had not gone for his condolence so the PWs were not present at the place of 'occurrence. It is not the case of defence that it was a blind murder, which was not witnessed by any one rather they took a specific plea that during cross-firing between two groups the deceased lost his life and the others sustained injuries, which has not been substantiated with any evidence. Had there been any cross-firing between two groups the opposite group of the complainant side would also' have received some injuries and they could have been produced in the defence. Although it has been admitted in cross-examination by PW-1 that the defence side effected compromise in the earlier murder case registered against the complainant party but the said witness volunteered that the said compromise was effected only to the extent of Khalid condemned prisoner and the other accused persons were released on bail by the High Court. In this way the motive also stands proved, as it seems that the accused persons having been annoyed upon the release of complainant side/accused of earlier murder case, on bail, launched attack upon them. Admittedly, the deceased and the injured PWs were released on bail in June 2003 and the present occurrence took place after three months i,e, on 17.09.2003 when the accused persons decided to take revenge of previous enmity. So it cannot be considered as four years old motive. The prosecution has successfully Aproved its case against the appellants beyond any shadow of doubt. So far as the capital punishment awarded to the appellant Muhammad Aslam is concerned, beside injury with fire-arm attributed to him, two injuries on the shoulder and underneath the neck of the deceased have been attributed to the appellant Zafar while one injury on right side of hack has been assigned to the appellant Muhammad Amin. Although according to opinion of medical officer, the Injury No, 1 is the cause of death, which has been assigned to the appellant Muhammad Aslam yet the same is only based on approximation and the appellant Muhammad Aslam did not repeat the fire on the deceased. Therefore, death penalty awarded to the appellant is too harsh and imprisonment for life would serve the ends of justice. However, there do not exist any circumstances to enhance the compensation amount or the sentence awarded to the other accused.
15. For what has been discussed above while maintaining the conviction of the appellant Muhammad Aslam, the sentence of capital punishment awarded to him is converted into imprisonment for life. However, the other sentences awarded to the accused persons/ appellants are maintained. The sentences awarded to all the accused persons shall run concurrently and benefit of Section 382-B Cr.P.C. is also extended to the appellants/accused. Resultantly instant Criminal Appeal No, 176/2006 is disposed of and PLSA No, 22/2006 & Criminal Revision No, 409/2006 are dismissed. The Murder Reference No, 306/2006 is answered in the negative and death sentence awarded to the appellant Muhammad Aslam is not confirmed.