' SYED IFTIKHAR HUSSAIN SHAH, J.---This judgment will dispose of Criminal Appeal No,2053 of 2005 filed by Tariq Mehmood, appellant against his conviction and sentence along with Murder Reference No,833 of 2005 sent by the learned trial Court under section 374, Cr.P.C. For the confirmation of death sentence as both these matters have arisen out from the same judgment dated 15-12-2005 passed by the learned Addl: Sessions Judge, Okara through which he had convicted the appellant under section 302(b), P.P.C. And sentenced him to death with a direction to pay a sum of Rs,2,00,000 to the legal heirs of Khizar Hayat (deceased) as compensation or in default thereof to undergo simple imprisonment for six months.
2. The occurrence in the present case had allegedly taken place on 27-5-2005 at 9-30 pm. Within the area of Chak No,51/3-R, situated within territorial jurisdiction of Police Station Cantt. Okara and the matter was reported by Muhammad Boota Shahid, complainant (1..W.4) brother of the deceased through statement (Exh.PD) recorded by Muhammad Ashiq, A.S.-I. (P.W.9) at 11-00 p.m., and on the basis of which formal F.I.R. No,69 of 2005 (Exh.PD/1) was recorded by Saadi Ahmad, Moharir No,1060/HC (P.W.11) on the same day at 11-30 pm. At the Police Station Cantt., Okara.
3. The brief facts as narrated in the F.I.R. Are that the complainant' along with Khizar Hayat (deceased), Nazar Abbas, his brother and Allah Rakha was standing in the Bazaar of his village as there was programme of Rasme Hina of Sajjad Ahinad. All of a sudden, Tariq Mehmood (appellant) also came there while armed with carbine .12 bore and fired in the air. Khizar Hayat (deceased) forbade him to do so, but the appellant after loading the carbine fired at him, which landed on front of his chest, near the neck, left eye, on forehead and lip near nose. Some pellets also hit Imran Majeed and Sami-ullah, who were also standing there. After the incident, three aforesaid injured persons were escorted to the hospital but Khizar Hayat, brother of the complainant succumbed to the injuries in the way to Hospital. The motive behind the occurrence was that deceased, brother of complainant forbade the appellant from making aerial firing for which he became furious and made straight fire upon Khizar Hayat hitting different parts of his body.
4. The investigation had been conducted by Amanat Ali Inspector/I.O. (P.W.7). According to him on 27-5-2005 Muhammad Ashiq A.S.-I. (P.W.9) sent him a complaint (Exh.PD) and F.I.R. (Exh.PD/1) about the incident for investigation of this case. He visited the Hospital, where dead body of Khizar Hayat, brother of the complainant was lying and Imran Majeed and Sami-ullah, injured P.Ws. Were also admitted in the Hospital, where he recorded their statements. The dead body of Khizar Hayat (deceased) was inspected by Muhammad Ashiq, A.S.-I. (P.W.9), who prepared inquest report Exh.PL, drafted an application for the postmortem examination of the deceased and sent the dead body of the deceased to the mortuary, DHQ Hospital, Okara. He also obtained medical examination reports of Imran Majeed, Exh.PM and Sami-ullah, Exh.PN. On the next morning, I.O. (P.W.7) visited the place of occurrence, where he prepared rough site plan Exh.PH. On the same day, Muhammad Ashiq, A.S.-I. (P.W.9) produced last worn clothes of the deceased which were taken into possession vide recovery memo Exh.PE. He took blood-stained earth from the place of occurrence vide recovery memo Exh.PF and recorded the statements of P.Ws. Under section 161, Cr.P.C. Thereafter, on 1-6-2005 the draftsman visited the place of occurrence and prepared rough note on the pointation of P.Ws. And prepared scaled site plans Exh.PA and Exh.PA/1 and handed over the same to I.O. On 7-6-2005. On 14-6-2005, I.O. Arrested Tariq Mehmood, accused-appellant and got his physical remand, who during the physical remand, got recovered carbine P-4, allegedly used by him during the occurrence, which was taken into possession vide recovery memo Exh.PG. He recorded the statements of witnesses under section 161, Cr.P.C. After conducting the usual investigation, the accused-appellant was challaned.
5. Dr. Ishtiaq Ali (P.W.8) conducted post mortem examination the dead body of Khizar Hayat son of Allah Ditta on 28-5-2005 at about 2-00 am. It was the dead body of young man who was clad in blood-stained Shalwar and Qameez, post mortem staining and rigor mortis were present. He noted the following injuries:- ' Injuries (1)A lacerated wound 1/2 x 1/2 cm on left side of forehead, deep going (margin inverted 5-cm above left eye),
(2) A lacerated wound 1/2 x 1/2 center of left lower lid with contusion around the eye. Wound deep going.
(3) A lacerated 1/2 x 1.2 cm deep going on the lateral side of upper gum. Wound was deep going.
(4) A lacerated wound 1/2 x 1/2 cm deep going on left side of upper chest.
' In the opinion of doctor, cause of death was due to injuries Nos.3 and 4 causing haemorrhage and shock, which is sufficient in ordinary course of nature to cause death. Injuries were ante-mortem and caused by firearm weapon. The time between the injuries and death was within 15-minutes, whereas that between the death and post mortem examination was within 6 to 8-hours.
6. After completion of the investigation, report under section 173, Cr.P.C. Was submitted in the court.
The copies required under section 265-C, Cr.P.C. Were supplied to the appellant-accused and the charge was framed against him, but he denied the charge and claimed to be tried.
7. The prosecution in order to prove its case produced as many as eleven witnesses. The ocular account had been furnished by Muhammad Boota Shahid, complainant (P.W.4), Allah Rakha (P.W.5). Amanat Ali, Inspector and Muhammad Ashiq A.S.-I. (P.Ws. 7 and 9) had conducted the investigation and the medical evidence had been furnished by Dr. Rana Abftul Ghaffar and Dr.Lshtiaq Ali (P.Ws. 3 and 8), who had examined injured persons and conducted -the post mortem examination of Khizar Hayat, (deceased). The remaining witnesses are of formal nature and need not to be discussed here.
8. The appellant in his statement recorded under section 342 Cr.P.C. Denied the allegation on facts and to a question that "why this case against you and why P.Ws. Have deposed against you?" he replied as under: "P.Ws. Are closely related inter se and to the deceased as well they were neither present at the spot at the time of occurrence nor they had seen the occurrence. After the occurrence Muhammad Boota Shahid P. W. Was summoned from Lahore where he is employed while Allah Rakha P. W. Was summoned from Noor Shah District Sahiwal and thereafter, they were cited as eye-witnesses falsely for the reason that no person from the vicinity was ready to become false eye-witnesses in this case. 1 have been falsely involved in this case due to enmity and grudge by the complainant party in collusion with the police".
' The appellant neither opted to make his statement under section 340(2), Cr.P.C, nor did he produce anything in his defence to prove his plea. The learned trial Court after hearing the arguments of both the parties had passed the impugned judgment of conviction and sentence against the appellant. Hence, the instant appeal before this Court.
9. The learned counsel for the appellant has contended that case against the appellant is false and fictitious one; that it was un-seen occurrence committed by unknown persons at the time of Rasm-eHina of Sajjad Ahmad, where several persons were firing on the happy occasion and aerial fire of some one had hit the deceased per chance; that P.Ws. Are not residents of the same locality and are closely related to the deceased, who have falsely implicated the appellant in this case; that Muhammad Boota Shahid, complainant (P.W.4), is real brother of the deceased, whereas Allah Rakha (P.W.5) is brother-in-law of the deceased; that the injured witnesses Imran Majeed and Sami-ullah have been given up by the prosecution and adverse inference can be drawn for their non-appearance in the Court in support of prosecution version; that no crime empty was recovered from the place of occurrence, therefore, alleged recovery of Carbine (P-4) does not advance any further benefit; that there are material contradictions in the statements of prosecution witnesses; that the prosecution had failed to establish the guilt of ' the appellant beyond any shadow of doubt, but the learned trial Court has convicted and sentenced the appellant arbitrarily, which is not sustainable in the eyes of law and appeal is liable to be accepted.
10. Conversely, learned D.P.-G. Assisted by learned counsel for complainant has opposed this appeal by contending that appellant was firing in the bazaar of said village at the time of Rasme Hina of Sajjad Ahmad when Khizar Hayat, deceased restrained him to do so, Tariq Mehmood became angry and made a straight fire landing on the forehead of Khizar Hayat (deceased) and some pellets also hit on various parts of his body. Moreover two other persons namely Imran Majid and Sami-ullah, standing near him, were also injured. P.Ws. Have fully implicated the appellant in the alleged aforesaid offence. The medical evidence is in line with ocular account; that recovery of said carbine on the pointation of the appellant also fortified the prosecution versic... The learned trial Court has rightly convicted the appellant, therefore, the appeal is without merits and the same is liable to be dismissed and murder reference is liable to be answered in the affirmative.
11. Arguments heard and record perused.
12. It is pertinent to mention here that there is no dispute regarding time and place of occurrence.
The appellant's version is that so many persons were firing on the occasion of Rasm-e-Hina of Sajjad Ahmad and a fire of someone has hit the deceased accidentally. However, the appellant has contended that he himself was not present there at the time of occurrence and he has been falsely implicated in the present case by the complainant, who had apprehension that he was involved in the disappearance and in the elopement of Mst. Bushra Bibi, sister of the complainant.
The deposition of complainant Muhammad Boota Shahid (P.W.4) is in line with complaint Exh.PD made by him. Allah Rakha (P.W.5) has also corroborated the statement of complainant (P.W.4) in all material aspects of the case. Both of them have categorically deposed that they themselves had seen the appellant firing at Khizar Hayat (deceased) with his carbine which landed at the upper part of his chest, beneath his neck, on the forehead near left eye and some pellets of his fire also hit Imran Majeed and Samiullah, who were standing near the deceased. According to both aforesaid P.Ws., Khizar Hayat (deceased) had restrained Tariq Mehmood (appellant) from firing in the air on the occasion of Rasm-eHina of Sajjad Ahmad, but appellant after getting annoyed had fired at the deceased.
13. The learned counsel for the appellant has assailed testimony of both Muhammad Boota Shahid and Allah Ditta P.Ws. On the ground of their close relationship with the deceased. It is admitted fact of this case that eye-witnesses are related to the deceased but on this score alone their statements cannot be discarded. It is well-settled by now that merely on the basis of inter se relationship the statements of prosecution witnesses, who stood firm to the test of cross- examination, cannot be discarded especially when sufficient corroboratory material is available. It is intrinsic value of the statements of the prosecution witnesses which is to be examined and not the relationship. The presence of prosecution witnesses at the time of occurrence has been fully established. The accused-appellant had been firing in their presence on the eve of Rasm-e-Nina of Sajjad Ahmad. It was ceremonial firing and fire of appellant had hit Khizar Hayat, the deceased of the case.
14. The motive behind the occurrence as alleged in the F.I.R. Is that the deceased had restrained the appellant from firing on the occasion of Rasm-e-Hima of Sajjad Ahmad and he made a straight fire at the deceased. It is stated by the P.Ws. That alleged restraint imposed by the deceased on the appellant was simple one and no hot words were exchanged between them so as to make the appellant furious to take such dire step of taking the life of the deceased.
15. We have carefully examined the respective contentions as agitated on behalf of appellant and State and have scrutinized the entire prosecution evidence available on record.
16. A bare perusal of the F.I.R. (Exh.PD/1) reveals that the whole occurrence started when Tariq Mehmood appellant, all of a sudden, took out a carbine and fired in the air, at a place where a musical concert in connection with Rasm-e-Hina of Sajjad Ahmad was going on. The appellant apparently made the fire shot in jubilation. When he made the aerial fire shot, Khizer Hayat (deceased) was also present amongst the audience. Had the appellant any intention to do away with A Khizer Hayat, he would not have fired in the air. According to the version of the witnesses of the ocular account, Muhammad Boota Shahid (P.W.4) and Allah Rakha (P.W.5), Khizar Hayat (deceased) forbade the appellant from his act of firing, on account of which he fired straight at the admonisher, which hit his upper most chest, left eye, forehead and lips. Previously, there was no heartburning or bad blood between the parties. The statements of the eye-witnesses reveal that the unfortunate incident took place in spur of a moment and it was not a case of pre-planned or premeditated murder. The presence of the eye-witnesses at the place of occurrence at the relevant time is fully established. It is evident from the statements of the witnesses of ocular account that the appellant was armed with a carbine at the time of occurrence, through which he firstly fired voluntarily in the air and the repeated fire shot made by him hit the ill feted deceased. If the appellant had any intention to commit the murder, he could have not made the first fire shot in the air nor he would have waited for the deceased to forbid him, so that he could fire at him and commit his murder. Equal probability exists that the second fire shot made by the appellant hit the deceased due to erratic position of the muzzle of the carbine, which is usually a country made weapon. It is a matter of common observation and unfortunately an irrational custom that the people generally get aroused on the eve of such festivals and express their sentiments through some foolhardy acts like the one, done by the appellant at the time of occurrence. It was the Rasm-e-Hina of Sajjad, who had invited one of the complainant party to the musical concert and their presence at the said spot was merely coincidental, where they went to amuse themselves.
Khizer Hayat (deceased) was working in the house of Sajjad, who had arranged the music festival in connection with his Rasm-e-Hina. The conduct of the appellant was not appreciable nor there was any occasion to be overawed by wild sentiments but he most probably having been driven by the mystical song sung by the singers, fired a shot in the air, followed by another one, which cut the lifeline of Khizer Hayat (deceased). It might be a targeted shot by the appellant, but at the same moment the probability cannot be ruled out by keeping in view the attending circumstances of the case that it was a misdirected shot by the appellant, originally designed to be again fired into the air. We find force in the argument of learned counsel for the appellant that the conviction of the appellant under section 302(b), P.P.C. Is not sustainable.
Accordingly, while setting aside the conviction of the appellant under section 302(b), P.P.C., we convict him under section 302(c), P.P.C. And sentence him to rigorous imprisonment for fourteen years with order to pay the same compensation amount to the legal heirs of the deceased as directed by the learned trial Court in the impugned judgment. The sentence of six months imprisonment due to default in payment of compensation amount, shall also remain intact.
17. With the above modification, this appeal (Criminal Appeal No,2053 of 2005) otherwise stands dismissed. Death sentence awarded to the appellant is NOT confirmed and Murder Reference is answered in the Negative.