' MIAN FASIH-UL-MULK, J.--- Misal Zada convict appellant has filed Criminal Appeal No.878 of 2010 against his conviction and sentence recorded vide impugned judgment dated 1-11-2010, whereby learned Additional Sessions Judge/Izafi Zilla Qazi Wari finding accused guilty of the offence under sections 302(b)/ 324/337-F(i)/337-D, P.P.C. Sentenced him as under:--
(i) Under section 302(b), P.P.C. To death as Tazir for the murder of deceased Hayat Ullah. The convict was further directed to pay Rs.5,00,000 as compensation to the legal heirs of deceased under section 544-A 'Cr.P.C. Or in default to further undergo six months' simple imprisonment.
(ii) Under section 324, P.P.C. To ten (10) years' R.I. And a fine of Rs.50,000 or in default to further undergo six months' S.I.
(iii) Under section 337-F(i), P.P.C. To pay Rs.50,000 as Daman for the injury caused to complainant and to remain in jail till payment of Daman.
(iv) Under section 337-(D), P.P.C. To 10 years' R.I. As Tazir for injuries to Muhammad Zeb and was directed to pay Rs.3,00,000 as Arsh (one third of Diyat) to injured Muhammad Zeb and to remain in prison till payment of Arsh.
The sentences of imprisonments were ordered to run concurrently. Benefit of section 382-B, Cr.P.C.
Was, however, extended to the appellant. Learned trial court has sent Murder Reference No.32 of 2010 for confirmation of death sentence.
2. Brief facts of the case given in the F.I.R. Are that complainant in injured condition on 18-11-2009 at 14-00 hours at Wari Hospital lodged a report to the effect that on the fateful day at 12-00 hours when the complainant along with his 'paternal cousin Hayat Ullah son of Shatamaz, his fellow villager Jelar were working in their fields, when Misal Zada son of Yaqoob armed with Kalashnikov came while restraining the complainant from doing work in the fields let out indiscriminate firing at the complainant and Hayat Ullah his paternal cousin. Complainant and his cousin sustained injuries. His cousin Hayat Ullah breathed his last at the place of incident whereas complainant sustained injury in his right hand. One Muhammad Zeb, a passerby also got bullet in his renal region and gall-bladder. The scene of occurrence apart from complainant was witnessed by Farman Ullah, Najeeb Ullah and Parvez. Motive was stated to be property dispute between the parties.
3. Sher Wazir Khan S.-I. (P.W.8-A) recorded report of complainant in the shape of murasila Exh.P.W.511 and sent the same to Police Station, where on its basis case F.I.R. Exh.P.W.8-A/1 was registered. He prepared the injury sheets of injured Ehsan Ullah, Muhammad Zeb as well as deceased vide Exh.P.W.B-A/2 to Exh.P.W.8-A/4.
4. After completion of investigation complete challan was submitted in court.
5. Learned trial Court after compliance of legal formalities, framed the charge, recorded statements of ten P.Ws., statement of accused and hearing arguments of the parties vide judgment dated 1-11-2010 convicted and sentenced the appellant as Mentioned above.
6. The prosecution in order to prove its case produced as many as ten witnesses. However, its case mainly hinges upon the testimony of P.W.5, P.W.6, P.W.7 and P.W.8. The complainant almost reiterated the contents of F.I.R. And stated that on the eventful day at 12-00 noon they were working in their fields when Misal Zada armed with kalashnikov came there and forbade them. On this, the complainant party stopped the work. No sooner they stopped the work and started towards their home, the accused fired at them indiscriminately. As a result of firing Hayat Ullah got hit and died on the spot whereas complainant sustained injury in his right hand. One Muhammad Zeb, a passerby also got bullet in his renal region and gallbladder. The scene of occurrence apart from complainant was witnessed by Farman Ullah, Najeeb Ullah and Parvez. To same effect are the statements of P.Ws.6 and 7. They all categorically charged the accused for commission of crime.
7. Dr.Rahat Ullah Medical Officer RHC Wari (P.W.8) on 18-11-2009 conducted autopsy on the dead body of Hayat Ullah aged about 22 years and on external examination found the following injuries:- -
(1) Single entry wound on right thigh totally to the right side.
(2) Single entry wound found on left thigh laterally to the right side. Both entries were on upper thigh near to the hip, joint measuring 5-7 mm in diameter.
(3) An exit wound on right thigh upper part about 4-5 inches in diameter found laterally on left side.
(4) Another exit wound on left thigh upper part about 3-4 inches in diameter found laterally to the left side.
(5) Scrotum was pierced open and testis were hanging down outside it.
' According to doctor cause of death was due to excessive bleeding on account of injuries to the major blood vessels. Time between injury and death was instantaneous and between death and postmortem about one to two hours and injuries were caused due to firearm.
' The said doctor also examined injured Ehsan Ullah complainant and single wound of entry about 1 cm diameter was found on palmy side of right hand in the space between the thumeix index finger and another single wound of exit about 2-3 inches in diameter was found on dorsal side of right hand. The injury was caused due to fire arm.
8. Investigation was carried out by Siraj Khan S.-I. (P.W.9), who prepared the site plan Exh.P.W.9/1, recovered bloodstained earth Exh.P.W.9/2, an empty of 7.62 bore vide recovery memo Exh.P.W.9/3 and arrested the accused Amir Nawaz Khan produced kalashnikov the crime weapon which he took into Possession vide recovery memo Exh.P.W.9/8. Thereafter he sent bloodstained articles to FSL and kalashnikov to Arms Expert for analysis and report. After completion of investigation he handed over the complete challan to Muambar Khan S.H.O. For submission, who in turn submitted the same in Court.
9. Learned counsel for convict appellant argued that the appellant during the incident sustained injuries and remained admitted in the hospital for sufficient long time and a report to this effect has been lodged in the P.S. It was further argued that the crime weapon allegedly recovered from appellant was found to be out of order by the Arms Expert. It was concluded that case of prosecution suffers from infirmities and contradictions and in presence of counter report in the shape of Mad No.37 dated 18-11-2009, the appellant might have reacted in self defence. The conviction and sentence of convict appellant is, therefore, legally and factually not maintainable, and is liable tQ be set aside. He placed reliance on 2009 SCM R 1192, PLD 1988 SC 25, 1988 SCMR 386, 1985 SCM R 1715 and 1994 SCM R 1928.
10. On the other hand learned counsel for complainant and Mr.Ikramullah Khan the learned A.A.-G.
Appearing for the State argued that the convict appellant is charged in a promptly lodged F.I.R.
With specific role of firing and that the eye-witnesses' account is corroborated by the medical evidence, recoveries from the spot and the motive. They further argued that the accused is liable for the commission of murder of deceased as well as extending injuries to P. Ws. 5 and 6 and thus he was rightly convicted and sentenced by the trial court.
11. We have heard arguments in detail and minutely gone through the record of the case with their able assistance.
12. A perusal of record would show that the report of the occurrence was lodged by Ehsan Ullah complainant (P.W.5) within two hours of the occurrence. There was hardly any time for deliberations or consultations. Statements of Ehsan Ullah complainant (P.W.5). Muhammad Zeb (P.W.6) (injured and disinterested witness of occurrence) and Parvez P.W.7, eyewitnesses are consistent on material points. The presence of P.W.5 and P.W.6 being injured witnesses is established on the scene of occurrence. They deposed the ocular testimony and supported the prosecution version. Despite that they were subjected to Lengthy cross-examinations, nothing material could be brought out nor any dent could be created in their evidence. They stood firm and their veracity could not be shaken. The medical evidence given by Dr. Rahat Ullah Medical Officer P.W.8 also corroborates the testimony of P.Ws.5, 6 and 7.
13. In the present case the convict appellant duly armed with lethal weapon came to the spot and forbade the complainant party from doing the work in their fields, who on their own stopped the work and started towards their home but at that moment abruptly the convict appellant opened indiscriminate firing at the complainant party, as a result of which deceased got hit and died on the spot whereas complainant and a passerby also sustained injuries at the hand of convict appellant. In this way the convict appellant committed Qatl-e-amd besides causing injuries to the complainant and a passerby. So far as contention of learned counsel for convict appellant that accused had sustained injuries during the occurrence has no force as there is no solid evidence to this effect on record rather it appears that the injuries on his person with blunt means were caused to him after the occurrence.. It is further to be noted that Nagai Mad No.37 dated 18-11-2009 was reported by nephew of appellant at 1800 hours where the deceased or injured of the present case were not charged. It is thus, clear that the plea of defence is hardly available to the appellant.
14. The prosecution fully established the guilt of convict appellant, who is signally charged for firing at deceased and causing injuries to two persons through the testimony of P.Ws. Not is a rare phenomenon. It is not possible that the close relatives of the deceased would let the actual culprit scot-free and substitute an innocent person for the commission of an offence involving capital punishment. False Implication is also ruled out in view of the statement of injured witness P.W.6, who is an impartial and disinterested witness. In the facts and circumstances of the case learned trial court has rightly convicted the appellant.
15. Adverting to the question of sentence, the occurrence took place on the spur of moment. Neither there was any previous enmity amongst the parties nor motive of property dispute stands established in true legal sense, therefore, sentence of imprisonment for life would meet the ends of justice.
16. Consequently, we while maintaining the conviction of appellant under section 302(b) P.P.C. Alter the sentence of death to life imprisonment and direct that, the appellant be kept in jail till recovery of compensation amount of Rs.5,00,000 whereas remaining impugned judgment of trial court shall remain intact. Murder reference is answered in negative.
"Sentence altered.