Abdus Sattar Asghar, J.--Muhammad Imran, Ghulam Murtaza, Shahid Hassan, Ghulam Abbas, Ghulam Hassan, Sarfraz and Bati Khan seven in number were tried by learned Additional Sessions Judge Sargodha in Case FIR No, 498, dated 25.9.2009, in the offences under Sections 302/148/149/109, PPC, Police Station Sahiwal District Sargodha for committing Qatl-i-Amd of complainant's brother Allah Bakhsh. The learned trial Court vide judgment dated 30.11.2010 convicted Muhammad Imran under Section 302(b) of the Pakistan Penal Code 1860 and sentenced to death He was also sentenced to fine of Rs, 2,00,000/- to be paid to the legal heirs of Allah Bakhsh (deceased) as compensation Section 544-A, Cr.P.C. In case of default in payment of the same to undergo S.I. for six months. All the remaining accused were acquitted of the charges given benefit of doubt.
2. Feeling aggrieved Muhammad Imran convict has lodged Criminal Appeal No, 2783/2010 against his conviction and sentences. Muhammad Sher complainant has lodged Criminal Appeal No, 2873/2010 against the acquittal of the respondents. Muhammad Sher complainant has also filed Criminal Revision No, 1355/2010 seeking enhancement of the amount of fine awarded to Muhammad Imran convict. The State has also approached this Court with Murder Reference No, 649/2010 seeking confirmation of death sentence awarded to appellant Muhammad Imran. We intend to dispose of all the above said matters through this single judgment.
3. Precisely the prosecution case as set forth in the FIR (Exh.PG) by Muhammad Sher complainant (PW-7) is that he is resident of Chak No, 117/Shamali and is agriculturist; that his real brother Allah Bakhsh had gone to the house of his in-laws in village Kamala; that in order to take his brother Allah Bakhsh back to his village he went to village Kamala at 5.00 p.m.; that on 25.9.2009 at 6.00 p.m. they were returning to their home from the village Kamala and when reached near the cattle- shed of Waqar Abbas, accused Muhammad Imran armed with rifle, Ghulam Murtaza armed with .30-bore pistol, Sarfraz armed with .8 MM rifle, Bati Khan armed with .12-bore gun, Shahid Ali armed with rifle as well as two unknown persons came there raising lalkara to kill them; that appellant Muhammad Imran fired a shot with his rifle hitting near the left shoulder of Allah Bakhsh; that thereafter Sarfraz fired a shot which did not hit any one; that Allah Bakhsh fell down on the ground and died as a result of the said injuries; that on hearing the noise and report of firing Muhammad Khan and Mumtaz PWs attracted to the spot whereupon the accused while firing went towards south; that Imran and others have committed the murder of Allah Bakhsh on the instigation of Ghulam Abbas and Ghulam Hassan. The motive was stated that a few months before this occurrence Bati Khan accused and Dost Muhammad brother-in-law of Allah Bakhsh (deceased) had a quarrel.
4. During investigation Ghulam Abbas, Ghulam Hassan, Sarfraz and Bati Khan were found innocent and placed in Column No, 2 whereas Ghulam Murtaza, Shahid Hassan and Muhammad Imran were found guilty and placed in Column No, 3 of the Challan submitted in the Court. All the accused were summoned and charge-sheeted to which they pleaded not guilty and claimed trial.
5. Prosecution has produced as many as 13 witnesses to prove its case. Muhammad Salim Draftsman (PW-2) prepared the site-plan Exh.PA and Exh.PA/1. Muhammad Ehsan HC/976 (PW-3), Muhammad Afzal C/20 (PW-4) and Majeed Ullah 1138/C (PW-10) are recovery witnesses. Shamsher (PW-6) is witness of abetment. Muhammad Sher complainant (PW-7) and Muhammad Khan (PW- 3) are eye-witnesses of the occurrence. Muhammad Arif SI (PW-13) is scribe of FIR Exh.PG and investigating officer of the case. Dr. Nazir Ahmad, Medical Officer, THQ Hospital Sahiwal District Sargodha (PW5) on 26.9.2009 at 2.00 P.M. conducted post-mortem examination on the dead body of Allah Bakhsh and found following injury:--
1. An oval shape fire-arm wound of entry 1.25 cm x 0.75 cm on the outer side of the left upper chest, 1 cm below the shoulder joint with inverted margins and a collar of abrasion. There was corresponding cut on the Qamiz. No burning or blackening was seen on the Qamiz.
Dissection: Under Injury No, 1 the bullet traversed from above down ward and pierced the skin and muscle of the anterior chest wall. It traversed left lung from left to right and was recovered from the 10th thorasic vertebra. The chest cavity was full of blood. Heart was empty. Small intestine contained small amount of semi-digested food and air. Large intestine contained small amount of Pascal matter and air. Urinary bladder was empty'. Organs of generation were intact. All the other organs except mentioned above were normal.
In the opinion of the Doctor death had occurred due to Injury No, 1 leading to damage to the left lung, massive bleeding, cardio pulmonary failure, shock and death. Injury No 1 was sufficient to cause death in ordinary course of nature. Injury No, 1 was ante-mortem and inflicted by fire-arm.
Probable duration between injury and death was 5 to 10 minutes while between death and post- mortem examination was six to eight bows. He verified his post-mortem report Exh.PD.
6. Rest of the witnesses are of formal nature therefore need to be discussed. Learned ADPP tendered in evidence report of the Chemical Examiner Exh.PM and of Serologist Exh.PN and closed the prosecution evidence.
7. At the conclusion of prosecution evidence, learned trial Court recorded the statement under Section 342, Cr.P.C. of the appellant as well as of all the acquitted accused whereby they denied each and every piece of prosecution evidence while pleading their innocence. However, in reply to question "Why this case against you and why the PWs deposed against you" Muhammad Imran convict/appellant simply stated that the PWs made false statements due to enmity. The acquitted accused also replied the said question_ in the same words.
8. All the accused however neither produced any defence evidence nor opted to make any statement on oath in terms of Section 340 (2), Cr.P.C.
9. It is argued by learned counsel for the appellant Muhammad Imran that the ocular account produced by the prosecution admits material inconsistencies; that the PWs namely Muhammad Sher complainant (PW-7) and Muhammad Khan (PW-8) are interested witnesses inter-se related as well as related to the deceased; that the medical evidence furnished by the prosecution is at variance to the ocular account and failing to provide any reliable corroboration; that the PWs namely Muhammad Khan (PW-8) and Mumtaz. (given up) are chance witnesses and their testimonies lack intrinsic value and inherent worth therefore cannot be safely relied upon; that no independent private witness from the locality was produced by the prosecution to prove the charge; that the alleged recovery of rifle ,222-bore from the appellant Muhammad Imran is false, fabricated and planted upon him and was also not referred to the Forensic Science Laboratory; that no empty of .222-rifle was recovered by the investigating officer from the place of occurrence therefore the recovery of alleged weapon of offence from Muhammad Imran appellant is inconsequential failing to furnish any corroboration to the prosecution version; that the site-plan Exh.PA was prepared by Muhammad Salim Draftsman (PW-2) on the basis of rough notes furnished by the police and not on the pointation of the PWs; that the alleged motive of incident is not established by the prosecution do the record; that the prosecution has not been able to prove the charge beyond any shadow of doubt; that on account of mitigating circumstances available in this case capital punishment awarded to Muhammad Imran appellant is not warranted by law; that on the same evidence co-accused of the appellant have been acquitted by the learned trial Court therefore the appellant is also entitled to acquittal.
10. On the other hand, learned Deputy Prosecutor General for the State assisted by the learned counsel` for the complainant contended that complainant Muhammad Sher (PW-7) has plausible and probable reason of his presence at the time and place of occurrence and the eyewitness namely Muhammad Khan (PW-8) being resident of the same locality is a natural witness; that the testimonies Muhammad Sher complainant (PW-7) and Muhammad Khan (PW-8) are in line and corroborative to each other on the vital ingredients i,e, time, date and place of occurrence, specific attribution to the accused with their particular roles and weapons of offence; that minor and immaterial inconsistencies in the testimonies of eye-witnesses are ignorable and do not affect the merits of the prosecution case; that medical evidence fully corroborates the prosecution case without any material discrepancies; that in the promptly lodged FIR false implication of the principal accused Muhammad Imran appellant is not possible; that single fire-arm injury to the deceased is specifically attributed to Muhammad Imran appellant causing death of Allah Bakhsh; that in such circumstances substitution is a rare phenomena and in this case there is no reason to falsely implicate the appellant Muhammad Imran to substitute real culprits; that the prosecution has brought the guilt home to the accused through reliable ocular account supported by medical evidence therefore the learned trial Court has rightly convicted Muhammad Imran and sentenced him to capital punishment of death in accordance with law which does not call for any interference by this Court; that the amount of fine imposed to Muhammad Imran convict to compensate the legal heirs of Allah Bakhsh deceased is not reasonable and requires interference by this Court for enhancement; that the learned trial Court has rightly convicted and sentenced Muhammad Imran but has fallen in grave error while acquitting the remaining accused actively participated in the occurrence and vicariously liable for the commission of willful murder of Allah Bakhsh (deceased); that the order of acquittal to respondents namely Ghulam Murtaza, Shahid Hassan, Ghulam.
Abbas, Ghulam Hassan, Sarfraz and Bati Khan is liable to set aside and the said accused also deserve conviction and punishment in accordance with law; that the appeal lodged by Muhammad Imran against his conviction having no merit deserves dismissal.
11. Arguments heard. Record perused.
12. In this case occurrence allegedly took place at 6.00 p.m. and the FIR Exh.PG was lodged the same day at 7.00 p.m. As regards complicity of Muhammad Imran appellant alleged in the FIR, he is attributed rifle shot near the shoulder of Allah Bakhsh (deceased) who succumbed to the said injury at the spot. Muhammad Sher (PW-7) the complainant and real brother of Allah Balthsh (deceased) while appearing in the witness-box reiterated his version as set forth in the FIR. As per prosecution version complainant was accompanying his brother Allah Bakhsh (deceased) while returning home from village Kamala when the alleged occurrence took place and that on account of firing and hue and cry of the complainant, Muhammad Khan (PW-8) and Mumtaz PW (given- up) attracted to the spot and witnessed the occurrence. The said Muhammad Khan (PW-8) is also resident of village Kamala and real brother of the wife of Allah Bakhsh deceased. In his - examination-in-chief Muhammad Khan (PW-8) has corroborated the complainant's version with regard to the details of the occurrence and attribution to the accused. To this extent despite lengthy searching cross-examination upon the said PWs nothing material elicited in favour of the defence. Therefore probable and plausible reason of presence of both the said PWs at the time and place of occurrence cannot be ruled out. It is an established principle of law that mere inter-se relationship of the PWs as well as with the deceased is no ground to discard their testimonies if the same rings true and do not admit any material inconsistency. Reliance be made upon Haji vs. The State (2010 SCM R 650).
13. In this case Allah Bakhsh (deceased) received single fire-arm shot observed as Injury No, 1 by Dr. Nazir Ahmad (PW-5) in his post-mortem report Exh.PD reproduced herein above. The said injury causing his death is attributed to Muhammad Imran appellant. Needless to say that although no previous animosity is alleged in between the deceased and the appellant Muhammad Imran or in between PWs and the appellant, however it is an established principle of law that in a case of single injury on the body of the deceased attributed to the single accused substitution is a rare phenomena. There is no reason on the record to falsely implicate the appellant in lieu of any real culprit.
14. Learned counsel for Muhammad Imran appellant has vehemently argued that medical evidence is at variance to the ocular account. He has laid much emphasis on the observation of the doctor made in dissection part of the post-mortem report (Exh.PD) which reads below: "Under Injury No, 1 the bullet traversed from above down ward and pierced the skin and muscle of the anterior chest wall. It traversed left lung from left to right and was recovered from the 10th thorasic vertebra."
It is argued by the learned counsel for the appellant that the injury particularly described as oval shape read with above observation of the dissection part is important to note in the light of the cross-examination upon the doctor (PW-5) who has admitted that direction of the injury was up to downward and the deceased and the assailant were not at the same level wherefrom shot was fired. In this regard it is pertinent to mention that neither the eye-witnesses nor the investigating officer during their cross-examination were put any suggestion by the defence side with regard to earth level of Point No, 1 and 4 where the deceased and the assailants are shown in the site-plan Exh.PA. Since the sole injury available on the body of deceased Allah Bakhsh is attributed to Muhammad Imran appellant therefore the above quoted opinion of the doctor cannot over ride the reliable ocular account on the record. Although no empty of rifle .222-bore was recovered from the spot and alleged weapon of offence rifle .222-bore (P.3) recovered from the accused was also not sent to the Forensic Science Laboratory rendering the said recovery inconsequential, however it is an established principle of law that any lapse on the part of the investigating officer is not fatal to the prosecution case otherwise established with the help of the reliable ocular account sufficiently corroborated by medical evidence.
15. Nutshell of the above discussion is that the prosecution has sufficiently established the charge with regard to complicity of Muhammad Imran appellant for commission of willful murder of Allah Bakhsh (deceased) by causing fire-arm injury and the learned trial Court has rightly convicted him under Section 302(b), PPC as Tazir. Quantum of sentence i,e, capital punishment awarded to Muhammad Imran appellant however requires reconsideration. In this case no direct motive is attributed to the appellant by the prosecution. The motive incident alleged by the prosecution in the FIR is also not established through any speck of material. Prosecution case has already been disbelieved qua the six accused. There is no allegation of repetition of fire against him and there is no report of Forensic Science Laboratory regarding the weapon of offence allegedly recovered from the appellant. We respectfully rely on the cases, of Hasil Khan versus The State and others (2012 SCM R 1936) and Ahmad Khan alias Malangi and 3 others versus the State (2008 SCM R 1644).
In view of all above, this is a case of mitigating circumstances and awarding of capital punishment in the extenuating circumstances cannot be endorsed. We therefore are not inclined to confirm the capital punishment of death to the appellant Muhammad Imran. The sentence of death is reduced to imprisonment for life. The appeal of Muhammad Imran is partly allowed accordingly.
16. Since no convincing reason is advanced by the complainant side for enhancement of the fine, therefore the quantum of fine worth Rs, 2,00,000/- imposed upon the appellant to be paid to the legal heirs as compensation under Section 544-A, Cr.P.C. is maintained. Criminal Revision No, 1355/2010 seeking enhancement of the amount of fine is dismissed in limine.
17. So far as Criminal Appeal No, 2873/2010 lodged by Muhammad Sher complainant against acquittal of respondents namely Ghulam Murtaza, Shahid Hassan, Ghulam Abbas, Ghulam Hassan, Sarfraz and Bati Khan is concerned, prosecution version to their extent in the peculiar circumstances of this case however is doubtful. No overt act is attributed to the said respondents by the prosecution. No injury to the deceased or any PW is attributed to them. Only one missed fire- shot is attributed to Sarfraz. Keeping in view the alleged previous animosity between the parties false implication of the said respondents therefore cannot be ruled out. Following the golden principle of criminal law that grain is to be sifted from the chaff the learned trial Court has rightly granted acquittal to the respondents. The said acquitted respondents have double presumption of innocence. There is no speck of material on the record to interfere with the order of acquittal passed by the learned trial Court in their favour. Reliance is made upon Iftikhar Hussain and others versus The State (2004 SCM R 1185), Therefore, Criminal Appeal No, 2873/2010 is dismissed in limine.
18. Death sentence awarded to Muhammad Imran appellant is not confirmed and the Murder Reference is answered in the negative.