Anwar-ul-Haq Pannun, J.--Through this judgment we will dispose of Crl. Appeal No, 87/2002 (Allah Ditta Vs. The State), Crl. Appeal No, 129/2002, (Khuda Bakhsh Vs. The State), under Section 417(2A), Cr.P.C. and Murder Reference No, 202/2002, sent by the learned trial Court under Section 374, Cr.P.C. for confirmation or otherwise of the sentence of death awarded to Allah Ditta, appellant, as all the matters have arisen out of same judgment dated 31.01.2002 passed in case FIR No, 201, dated 22.5.1999, under Sections 302/324/34, PPC, Police Station' Saddar Kehror Pacca, District 'Lodhran by the learned Addl. Sessions Judge, Lodhran whereby Allah Ditta (appellant) was convicted under Section 302(b), PPC and sentenced to death as Tazir with a direction to pay Rs,20,000/- as compensation to the legal heirs of the deceased Taj Muhammad and in default thereof to undergo 3 months S.I while co-accused Lal Muhammad was acquitted of the charge.
Briefly stated the prosecution case unfolded through Ex.PC (Fard Bian made by Khuda Bakhsh at Seekran More) before Allah Yar S.I/SHO (PW.4) on 22.5.1999 at 6.30 p.m to the effect that on the said day at about 6.00 p.m the complainant alongwrth his maternal nephew Taj Muhammad (nephew) son of Ghulam Rasool after offering `Asar' prayer were talking while standing in the street meanwhile Ghulam Abbas son of Hassan Bakhsh also reached there. In the meanwhile Allah Ditta son of Allah Yar alias Sikandara alongwith Lal Muhammad son of Ghulam Muhammad armed with .222 rife arrived at the spot. Lal Muhammad while handing over the rifle .222 to Allah Ditta said that a lesson be taught to Taj Muhammad for causing injury to Muhammad Ramzan alias Kala, whereupon Allah Ditta after picking up the rifle fired a straight shot which hit on the right shoulder of Taj Muhammad. He fired a second shot which also hit Taj Din underneath the ear and Taj Muhanimad fell down. Ghulam Abbas came forward for the rescue of Taj Din whereupon Allah Ditta fired two shots at Ghulam Abbas one hit on the left side of the chest and the other on the back of right side of the chest. On hue and cry Fida Hussain and Muhammad Nawaz PWs attracted to the place of occurrence and witnessed the occurrence and the accused fled away. Taj Muhammad succumbed to the injuries at the spot. However, Ghulam Abbas was dispatched to the hospital.
3. The motive has been stated that a criminal case FIR No, 618/1998 offence under Section 324/34, PPC was registered with Police Station Kehror Pacca for causing firearm injuries to Ramzan alias Kala. The accused suspected that Taj Muhammad has managed the firing on Muhammad Ramzan alias Kala, therefore, both the accused ih prosecution of their common intention committed the murder of Taj Muhammad and caused injuries to Ghulam Abbas.
4. After receiving the information about the occurrence, Allah Yar Sub Inspector/I.0 (PW.11) reached at the spot and after recording the statement Ex.PC of the complainant, sent the same to Police Station through Muhammad Ramzan 62-C. The 1.0 proceeded to the spot, prepared injuries statement Ex.PJ, inquest report Ex.PI, dispatched the dead body of the deceased to mortuary at Kehror Pacca under the supervision of constables, secured bloodstained earth from the spot through Ex.PD and also took into possession four empties from the place of occurrence vide recovery memo. Ex.PE. He also prepared the rough site plan of the occurrence Ex.PK. All the recovery memoes. were attested by the PWs. He recorded the statements of the PWs besides preparing injuries statement of Ghulam Abbas Ex.PL. Last worn clothes of the deceased and phial containing bullet recovered from the dead body of the deceased was also taken into possession vide recovery memo. Ex PF and thereafter he was transferred from the Police Station. After arresting Allah Ditta on 25.12.1999 rifle .222 bore was recovered from the cattle shed, on the pointation of the accused, by Munawar Ahmad Inspector/I.0 (PW16), which was taken into possession vide recovery memo. Ex.PG.
He concluded the investigation and submitted the challan before the Court of competent jurisdiction.
5. Learned trial Court after taking cognizance of the matter supplied copies of the statement to the accused and framed charge' under Sections 302/324/109/34, PPC on 06 12.2000 against the accused to which they denied and claimed to be tried. The prosecution, in order to prove the charge against the accused, produced as many as 17 PWs besides tendering report of Forensic Science Laboratory, Lahore Ex.PM, report of Chemical Examiner Ex.PN and report of Serologist Ex.P0 and closed the evidence. The ocular account in this case consists of Ghulam Abbas (PW.3) and complainant Khuda Bakhsh (FWA), who supported the prosecution version.
6. In order to prove the recovery aspect of the matter, PW.9 & PW.16 have deposed in the Court. The rifle, weapon of offence, was sent to the office of Forensic Science Laboratory and according to the report Ex.PM the rifle recovered from the appellant was in working order However, no report regarding matching of the rifle with the emptie recovered from the place of occutrence was given.
7. The medical evidence consists of the statement of Dr. Abdul Khaliq (PW.1), who examined.
Ghulam Abbas injured PW and found following injuries on his person:- "1. A lacerated fire arms wound 1/2 cm x 1/2 cm with blackening margins going deep on the back of left side of abdomen at lumber region 13 cm from mid line.
2. A lacerated fire arm wound 8 mm x 8 mm with blackening margions going deep on the back of right chest 14 cm lateral to the mid line and 13 cm below the inferior angle of right scopula."
Dr. Muhammad Maqbool was examined as PW 10, who conducted the postmortem of the deceased Taj Muhammad and found following injuries on the person of the deceased:-- "1. A lacerated fir arm wound 6 cm x 2 cm on the anterior and top of the left shoulder. Injury No, 1 is the entrance wound.
2. Similarly an other lacerated fire arm wound 4 cm x 2 cm with inverted margins on the left and posterior side of the head just back to the left ear about 2 cm from left ear.
DISECTION Injury No, 1 was just muscle deep which damaging the skin and pass away from the body. On dissection of Injury No, 2 the bullet was found from the inner side of skull cavity. The skull bone was found fractured, the brain matter and vessel was found injured. Cranium and spinal card scalp skull mambrain brain material were found injured Throx. All; the vesera were found healthy.
Abdomen. All the vesra were found healthy Stomach empty and urinary bladder was healthy and contain few CC of urine"
In the opinion of the doctor the cause of death was due to haemorrhage and shock due to Injury No, 2 to vital organ i,e, brain caused by firearm, which is sufficient to cause death in ordinary course of nature.
8. On the conclusion of the prosecution evidence statements of the accused under Section 342, Cr.P.C. was recorded. Allah Ditta accused while replying to Question No, 8 (Why this case is against you and why the PWs deposed against you? has stated as under:-- "I have been falsely implicated in this case due to enmity with the PWs. The PWs are closely related inter-se as well with the deceased and they have deposed against me on account of enmity."
9.The accused did not opt to make statements on oath under Section 340(2), Cr.PC. The accused however, tendered in defence copy of Writ Petition No, 5081/99 (Ex.DA), copy of the order sheet of said writ petition (Ex.DB), certified copy of FIR No, 618/98 (Ex.DC), attested copy of FIR No, 642/98, PS Sadar Kehror Paccac (Ex.DD), certified copy of FIR No, 217/97, P.S. Saddar Kehror Pacca (Ex.DE) and copy of FIR dated 01.2.2000, P.S Saddar Kehror Pacca (Ex.DF).
10.Learned counsel for the appellant contends that no motive is attributed to the appellant. At the most the appellant is alleged to have acted uhder the command of Lal Khan since acquitted. It is also submitted that if the prosecution evidence is taken into consideration in its entirety it gives rise to some doubt as to something un-usual, which remained unexplained, has happened just before the occurrence between the parties, therefore, "in such circumstances when the alleged motive is not proved and some thing happened before the occurrence, which has been withheld or concealed by the complainant side and if the Court comes to the conclusion after considering the entire record by disbelieving the prosecution version to this effect, the death sentence is not warranted under the law.
11.Learned DPG has vehemently opposed the submissions made by the learned counsel for the appellant and submitted that the death is normal penalty in the circumstances of the case as the appellant has fired successively four shots, two on the body of the deceased and two on the person of injured PW showing his reckless conduct, which does not give rise to any element of mitigation.
12.After heaping learned counsel for the parties and going through the record, it has been noticed that ocular account in this case has been rendered by Ghulam Abbas (PW.3) and the complainant (PW.4) Both of them have supported the prosecution version on material particulars of the case. The defence has not been able to bring on record any serious discrepancy in the prosecution case on record. The presence of Ghulam Abbas (PW.3), who received injuries at the time of occurrence duly supported by his Medico-Legal certificate cannot be doubted in any way.
The injuries on the person of the deceased as well as injured PW duly proved by PW.1 Dr. Abdul Khaliq render ample corroboration to the ocular account leaving no room for doubt that the appellant has not committed the offence with which he was charged. The prosecution has succeeded in proving its case according to requisite standard for the purpose of recording and maintaining conviction in a criminal case. Even otherwise learned counsel for the appellant has not been able to persuade us for acquittal of the appellant after arguing the case at some length, rather he made alternate submissions that in this case neither the recovery has been proved nor the motive is directly attributed to the present appellant particularly when the appellant committed the offence being under the command of his maternal uncle Lal Muhammad, since acquitted, therefore, if the case of the prosecution is taken in its entirety the mitigating circumstances do exist. We have noticed that according to its own showing of prosecution, the appellant committed the offence when Lal Muhammad (acquitted accused) handed over to him his own .222 rifle with the exhortation and commanded to fire at Taj Muhammad, therefore, motive in this case is not directly attributed to the appellant, hence, we feel that there exist some element of mitigating circumstances, although firearm injuries, two on the person of the deceased and two on the person of the PW have caused by the appellant. The appellant when fired at the deceased N Muhammad, the injured PW might have tried to assault the accused. Probability to this extent exists, therefore, he in order to save his skin fired at Ghulam Abbas without having any prior intention to cause injury on his person as Lal Muhammad exhorted the appellant for firing at Taj Muhammad only. Keeping in view the entirety of circumstances of the case besides non-existence of motive against the present appellant besides non-proving of recovery and the presence of Lal Muhammad, real maternal uncle of the appellant on the spot in whose command the appellant has fired at the deceased and the injured PW, which resulted into death of Taj Muhammad and infliction of injuries to Ghulam Abbas. We feel that conversion of sentence from death to life imprisonment, would serve the ends of justice.
13. For what has been said above, while maintaining the conviction of the appellant Allah Ditta recorded by the learned Addl. Sessions Judge, Lodhran Vide judgment dated 31.1.2002, we convert his sentence of death into imprisonment of life with the extension of benefit under Section 382-B, Cr.P.C. The compensation will remain the same as recorded by the learned trial Court. The appeal of the appellant Allah Ditta is dismissed with above modification in quantum in nature of sentence.
Murder Reference No, 202/2002 is answered in the NEGATIVE, the sentence of death awarded by the trial Court to Allah Ditta convict-appellant is not confirmed Crl. Appeal No 129/2002, for the foregoing reasons, is dismissed.