The appellants namely Mukhtar, Kabir and Shemshair, were convicted and sentenced by the learned Addl. Sessions Judge, Lodhran vide judgment 16.4.1994 in case FIR No, 198/1990 offence U/Ss. 302/307/34 PPC Police Station Kassowal for committing the murder of Faqir Hussain and murderous assault on the P.Ws. as under:-- Under Section 302 PPC. Kabir appellant sentenced to life imprisonment with fine of Rs,5000/- each, in default whereof, to suffer further R.I. for six months RI.
Under Section 307 PPC. Shamsher appellant sentenced to seven years. Mukhtar appellant sentenced u/S. 324 PPC to two years RI.
All the appellants were given benefit of Section 382 Cr.P.C.
2. According to the prosecution case on 13.9.1990 at 11 a.m Faqir Hussain son of Bootay Khan complainant was coming from the house of Abdul Majid Jat in the area of Chak No, 101/12L P.S Kassowal. Kabir Ali, Shamsher Ali and Mukhtar Ahmad accused armed with guns and revolver while Muhammad Shafi armed with hatchet who were lying in ambush came out of the house of Muhammad Shafi aforesaid and opened fires on him; the gun shot fired by Kabir Ali accused hit Faqir Hussain on his abdomen who fell down on the ground and succumbed to the injuries. The accused tried to drag the dead body inside the house but Mst. Bashiran Bibi daughter and Niamat Ali son-in-law of Bootay Khan PW intervened on which Mukhtar Ahmd accused gave butt blows on the face of Niamat Ali PW while Shafi accused gave hatchet blow on the back of Mst. Bashiran PW.
The accused then started making indiscriminate firing as a result of which Anwar Sajjad, a boy aged 8/9 years got injured. This occurrence was seen among others by lluotuy khan, his son Bashir. and Abdul Majid; the accused then run away from the spot alongwith their weapons.
The motive put forth by the complainant in the FIR is that Shamsher Ali accused had illicit 'relations with wife of Muhammad Shafi accused (brother of Bootay Khan PW). Faqir Hussain deceased had forbidden Shamsher Ali accused from visiting the house of Muhammad Shafi his uncle which fact annoyed the accused and in this connection a light had earlier taken place. The accused allegedly committed the murder and . made murderous assault in further of their common intention, thus time present. case was got registered against the accused.
3. All the accused were arrested and after investigation of the case, challan against them was submitted in the learned trial Court and accordingly charge was framed against them to which they pleaded not guilty and claimed trial.
4. Prosecution evidence consists of the statements of eleven PWs including the statement of the Doctor, complainant as well as injured PWs and the recovery witnesses. Mubarik Akhtar SI', Muhammad Asghar SI, Bashir Ahmad, Muhammad Hanif, Gulzar and Mst. Bashiran PWs were given up' as being un-necessary while Abdul Majid was given as having been worn over by the accused 'and after tendering report of Chemical Examiner Ex.PQ, report of Serologist Ex.PR and that of Firearm expert Ex.PS, the learned State Counsel closed the case for the prosecution.
5. After the close of prosecution evidence, the statements of the accused were recorded under section 342 Cr.P.C. and the prosecution evidence was put to them but they pleaded their innocency contending that they belonged to Chak No, 269/GB Tehsil Sumandari; they had neither any concern with Chak No, 101/12L nor they ever resided there. Kabir Ali accused admitted the recovery of weapon. of offence as his licenced gun P-8 and stated that it has been planted upon him after securing it from his house. He further stated that the complainant and Niamat Ali PW have falsely involved them in this case; they did not, produce any evidence in their defence nor did they want to appear and make statement on oath.
6. The prosecution based its case on the ocular account, medical evidence, recoveries coupled with the motive; the ocular account as also motive was put forth by Bootay Khan complainant, father of the deceased and Niamat Ali injured PW. Sadiq Ali PW is the recovery witness who stated about the recovery of gun made at the instance of Shamsher accused and hatchet at the instance of Shaft accused (since dead). Manzur Hussain PW attested the recovery of licneced gun made at, the instance of Kabir Ali accused and that of revolver made at the instance of Mukhtar accused. Dr. Muhammad Younis conducted autopsy on the dead body of Faqir Hussain deceased while Dr. Naeem Sadiq edically examined Anwar Sajjad. Mst. Bashiran Bibi, Niamat Ali and Mst. Itiazan, injured PWs.
7. Learned counsel for the appellants contends that the presence of Bootay Khan and Niamat Ali PWs near the place of occurrence is doubtful as the injuries on the person of Niamat Ali are self- suffered; in the statement under Section 161 Cr.P.C. (Ex.DA) Niamat Ali did not mention Bootay Khan as an eye-witness; if the presence of said Bootay Khan is admitted on the spot, then he would have intervened to save his son, from the fatal assault; it is further stated that the witnesses while appearing in the witness box have made improvements; it is further stated that there is conflict between the ocular account and the medical evidence as two shots were allegedly fired by the accused on the deceased but according to the post-mortem repot, there is only one injury; it is further submitted that though indiscriminating firing was allegedly made but no empty was recovered from the spot and similarly, the guns were not sent to the Firearm Export for comparison.
It is lastly submitted that as the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, they be acquitted of the charge.
8. On the other hand, learned DPG submits that motive is there, presence of PWs at the spot at the relevant time is proved; that there are statements of the injured PWs in this case, who duly implicated the appellants in this case and that there is no question of false implication; and that no PW would let the real culprit go scot-free.
9. Heard. Record perused.
10. The FIR in this case was got registered with promptitude and there is no dispute with regard to the time and place of occurrence. As regard the objection qua the presence of eye-witnesses near the place of occurrence and the alleged inconsistency between the ocular account and the medical evidence are concerned, suffice it to say that these are more of speculative/tentative than rational in nature. Niamat Ali PW was not required to have stated each and every detail of the occurrence in his statement; reliance in this behalf is placed upon the judgment reported as 1993 SCM R 1614, similarly, the presence of Bootay Khan PW near the place of occurrence cannot be questioned simply on the ground that he has not come forward to rescue his son, particularly in he situation, when he is about 60 years of age and his whole family not only intervened but also sustained injuries during the course of occurrence; no suggestion has been put to the Medical Officer that the injuries on the person of Niamat Ali PW could be self suffered or caused by friendly hands. Though there are minor discrepancies in the statements of the witnesses but those are not fatal to the prosecution case as has been observed by the superior Courts in this behalf. Moreover, it was a broad day occurrence and there is no doubt about the identity of the assailants and there was no reason for the complainant to have falsely involved the appellant in this case by letting the real culprits, particularly, in the situation, when admittedly a quarrel bad taken place prior to the present occurrence as a result of which a case was registered against l3ootay Khan and his son at, the instance of Muhammad Shafi. Though the motive has also been disputed by the appellants but it has been sufficiently explained by the complainant and the eye-witnesses, which too has not been rebutted by the accused through any evidence. Recovery of weapon is admitted by Kabeer Ali accused though he claims it to be his licensed gun. Mere non-comparison ()I' the gun with empties by the firearm expert would not create any doubt in the prosecution case because the recovery merely provides corroboration.
11.For what has been discussed above and also on the basis of the material available on the record, I find that the prosecution has succeeded in proving its case against the appellants.
12.As regards the quantum of sentence to the appellants is concerned, only one fatal injury is attributed to Kabir Ali appellant; admittedly, he had no motive against the deceased and did not repeat any other fire shot, consequently, his conviction is altered from Section 302(b) to Section 302(c) PPC and his sentence from life imprisonment is reduced to ten years alongwith a fine of Rs,5000/- or in default thereof to further undergo six months RI. His sentence was suspended by this Court vide order dated 16.4.1997. He be taken into custody and sent to the Jail for serving out his remaining sentence.
13.As far as the sentences awarded to Mukhtar son of Ghulam 'quid and Shemshair son of Noor Muhammad by the learned trial Court are concerned, in the given findings, I think that conviction has to be maintained but as far as quantum of sentence is concerned, already undergone by the said appellants is found sufficient to meet the ends of justice. Therefore, the conviction of appellants Mukthar and Shemshair is maintained but the sentence is reduced to the one already undergone by them. They are on bail, their sureties stand discharged from the liability of bail bonds.
With the above modification, this appeal stands disposed of.