' SYED MUHAMMAD KAZIM RAZA SHAMS , J. --The accused Shahzad alias Bille son of Sharif Masih alongwith his co-accused Sultan All son of Rehmat Ali, were tried by the learned Additional Sessions Judge, Gojra District Toba Tek Singh, in case F.I.R. No, 699, dated 07.12.2009, registered under Sections 302 & 34, PPC at Police Station Sadar Gojra, for committing Qatl-i-Amd of Muhammad Ramzan and Muhammad Sarwar. The learned Trial Court at conclusion of the trial, vide judgment handed down on 28.8.2010, acquitted Sultan Ahmad accused and convicted the appellant Shahzad alias Bille in the following manner:- ' Death Sentence under Section 302(b), PPC on two counts, with compensation of Rs, 5,00,000/- each to be paid to the legal heirs of each deceased, namely, Muhammad Sarwar and Muhammad Ramzan as required by Section 544-A, Cr.P.C. And in default of the payment of the amount, he was directed to further undergo six months' rigorous imprisonment on each count.
2. Murder Reference No, 497/2010 has been sent by the learned Trial Court seeking confirmation of death sentence awarded to Shahzad alias Bille, appellant.
3. Shahzad alias Bille appellant has preferred Jail Appeal (Crl. Appeal No, 357-J of 2010). The complainant did not challenge the findings of acquittal of Sultan Ahmad, accused in any further proceedings. The instant appeal is being disposed of alongwith the afore-said Murder Reference by this single judgment.
4. As per prosecution story, Muhammad lqbal son of Muhammad Saleh, complainant (PW-7) on 7.12.2009 at 12:00 (forenoon) made a statement before Sana Ullah, Sub-Inspector ((PW-11) that on the fateful day, he alongwith his son Muhammad Sarwar aged about 14/15 years and Muhammad Ramzan were going on donkey cart to fetch fodder for the animals when all of sudden Shahzad alias Bille, appellant armed with pistol 30-bore and Sultan Ahmad son of Rehmat Ali, co-accused, emerged there; that upon raising Lalkara by Sultan Ahmad, not to leave alive Muhammad Sarwar and Muhammad Ramzan, Shahzad alias Bille, appellant made a direct fire with his pistol 30-bore which hit on . The front side of abdomen of Muhammad Sarwar; that second fire made by the appellant landed on the back side of right ear of Muhammad Ramzan; that upon listening the hue and cry and on seeing the occurrence, Shah Baig son of Khan and GuI Sher son of Muhammad Ramzan, PWs attracted at the spot; that in the meanwhile, both the accused persons escaped from the spot; that the injured were taken to Civil Hospital, Gojra but Muhammad Ramzan succumbed to the injuries in the way to the hospital whereas Muhammad Sarwar injured died on reaching the hospital.
5. The motive for the occurrence is that 15/16 days prior to the occurrence, a scuffle took place between the deceased Muhammad Sarwar and the appellant Shahzad alias Bille, upon which grudge, both of the accused murdered Muhammad Sarwar and Muhammad Ramzan.
6. On the application (Exh.PJ) of complainant, formal F.I.R. Exh.P.J/1 was drafted at police station Sadar Gojra, District Toba Tek Singh, against the appellant and his co-accused.
7. After registration of crime report, PW.11, Sana Ullah, S.I. Inspected the dead-bodies of Muhammad Sarwar and Muhammad Ramzan, prepared injury statement Exh.PB, inquest report Exh.PC with regard to Muhammad Sarwar, deceased, injury-statement Exh.PE and inquest report Exh.PF with regard to Muhammad Ramzan, deceased and handed over the dead-bodies to Sher Masih, C/294 for post-mortem examination. He visited the place of occurrence, prepared rough site-plan Exh.PO, collected. Blood - stained earth from the place of murder of Muhammad Sarwar, deceased vide recovery memo. Exh.PL, also collected blood-stained earth from the place of murder of Muhammad Ramzan vide recovery memo. Exh.PM, collected two empties of bullet of 30-bore pistol vide recovery memo. Exh.PN and recorded the statements of the PWs under Section 161, Cr.P.C. On 09.12.2009, he got prepared the scaled site plan (Exh.PH and Ex.PH/1) from Haq Nawaz, Patwari Halqa. On 16.12.2009, he arrested Shahzad alias Bille and Sultan Ahmad, got their physical remand and recovered pistol (P-1) from the bank of canal situated at Chak No, 431/JB, Gojra at the instance of appellant vide recovery memo. Exh.PK. After completing usual investigations and formalities, finding accused persons guilty of crime, final report under Section 173, Cr.P.C. Was submitted to the Court where Shahzad alias Bille and Sultan Ahmad, accused were charge-sheeted on 25.2.2010 under Sections 302 & 34, PPC. They professed innocence and claimed trial. The prosecution examined eleven witnesses to prove the charge.
8.Dr. Masood Ahmad (PW-2) conducted post-mortem examination on the dead-bodies of deceased Muhammad Sarwar and Muhammad Ramzan; Muhammad lqbal complainant (PW-7) and Shah Baig (PW-8) deposed about the ocular account; lsrar Ahmad, ASI (PW-10) and Sana Ullah, Sub-Inspector (PW-11) provided evidence of the investigations conducted by them. The learned Trial Court at the conclusion of trial, acquitted Sultan Ahmad, from the charge whereas Shahzad alias Bille was convicted and sentenced in the manner noted in preceding para.
8. Dr. Masood Ahmad (PW-2) on 07.12.2009 at about 5:20 p.m. Conducted post-mortem examination on the dead-body of Muhammad Sarwar, deceased and found the following injuries on his person:--- ' "A fire-arm wound of entrance measuring 0.7 cm x 0.6 cm on front of abdomen, 4 cm below from umbilicus slightly towards left side. Margins were inverted. Collar abrasion was present. "
' In the opinion of Medical Officer, death was caused due to accumulative effect of injury No, 1 inflicted by fire-arm which was anti-mortem in nature and was sufficient to cause death in ordinary course of nature. The probable time elapsed between injury and death was 20 minutes and between death and post-mortem was about within 6 to 12 hours.
9. Dr. Masood Ahmad (PW-2) on the same day, at about 6:30 p.m., also conducted post-mortem examination on the dead-body of Muhammad Ramzan, deceased and found the following injuries on his body:- ' "A fire-arm wound of entry measuring 0.7 cm x 0.10 cm on back and right side of head just behind the right ear. Margins were inverted, Collar of abrasion was present. "
' In the opinion of Medical Officer, death was caused due to expensive brain damage due to injury No, 1 which was inflicted by fire-arm and was anti-mortem in nature and was sufficient to cause death in ordinary course of nature. Probable time elapsed between injury and death was 30 minutes and between death and post-mortem was about within 6 to 12 hours.
10. The prosecution closed its evidence by giving up Gull Sher, Muhammad Aslam and Shahbaz Ali, PWs being unnecessary and by tendering report of Chemical Examiner Ex.PQ and report of Serologist Ex.PR.
11. The prosecution evidence, so recorded was confronted to the accused Shahzad alias Bille by recording his statement under Section 342, Cr.P.C. And the appellant Shahzad alias Bille, in answers to questions No, 12 and 13, set up his defence following words:--- ' "It was an unseen occurrence. Some unknown persons had committed murder of Muhammad Ramzan and Muhammad Sarwar but the complainant involved me in the instant case on the basis of a suspicion as he had been suspecting that I had been having a dispute with the deceased persons. The PWs are related inter-se with the deceased persons. They have falsely deposed against me due to the suspicion which they had been having."
13. The appellant neither opted to produce any evidence in his defence nor to make statement under Section 340(2), Cr.P.C. To disprove the allegation levelled in the prosecution evidence.
14. Learned counsel for the appellant Shahzad alias Bille has argued that the occurrence as reported through the F.I.R. Is unseen and further the statements of PW.7 and PW.8, do not indicate their presence at the spot and witnessing the occurrence. He further submitted that the appellant has been involved in this case due to his media trial as two young boys were murdered and under the influence of that, the appellant has been made scapegoat. Touching the fact of the motive for occurrence, it is the argument of the learned counsel that the motive for the occurrence is not of such a high gravity, that a person could take such a drastic step of killing two boys. Added that the prosecution has miserably failed to establish that the deceased Muhammad Sarwar had any quarrel with the appellant constraining him to take his life. About the recovery of weapon of offence allegedly made at the instance of the appellant, it is submitted that the said recovery cannot be read against the appellant as the crime empties were sent to the Forensic Science Laboratory with a considerable delay and that the alleged pistol was also kept at the police station without explanation in this respect. He has also commented upon the delay in lodging of the F.I.R. And argued that the witnesses produced by the prosecution are related inter-se with the deceased persons and are interested in his prosecution. In view of these submissions, the learned counsel has prayed for acceptance of the appeal and acquittal of the appellant from the charge.
15. Conversely, the learned Law Officer assisted by learned counsel for the complainant argued that it is a case of double murder in which the appellant has specifically been nominated for causing death of Muhammad Sarwar and Muhammad Ramzan by making fires with his pistol which allegation is duly supported by the statements of the witnesses as well as by the medical evidence. He further argued that on the pointation of the appellant, the crime weapon was recovered regarding which place of recovery, the appellant was having special knowledge and the positive report sent by the Forensic Science Laboratory is another circumstance establishing that the pistol recovered at the instance of the, petitioner was fired, thus, the learned Trial Court while considering all these relevant factors had correctly indicted the appellant.
16. Arguments heard. Record perused.
17. The case of the prosecution as set out in Ex.PJ is that on 07.12.2009 at about 11:00 a.Rn., the appellant while armed with pistol 30-bore, had launched an attack upon Muhammad Sarwar, aged about 14/15 years and Muhammad Ramzan, by giving fires at the abdomen of Muhammad Sarwar and at the back of right ear of Muhammad Ramzan due to which both the boys died at the spot. The occurrence had taken place due to the fact that a fortnight prior to the occurrence, Muhammad Sarwar, deceased had some dispute with the appellant who vindicated his revenge by killing two young boys. This statement of allegation has duly been supported by the statements of PW.7 and PW.8 who consistently deposed about the date, time, place and the weapon with which the appellant was armed at the relevant time. The witnesses were duly cross-examined by the defence' but it failed to shake their credibility and to have any concession from their mouths.
The defence has miserably faded to point out any ill-will or malice on the part of the witnesses for falsely deposing against him or implicating him in the murder of two boys. The statements made by the witnesses of scene are confidence inspiring and natural in their narrations.
18. Further, the testimony of these two PWs i,e, PW.7 and PW.8 with regard to the seat of injuries has duly been synchronized with the post-mortem reports Exh.PA and Exh.PD wherein the Medical Officer, PW.2 had found seat of injuries exactly at the same location which the PWs had described in their deposition. The medical evidence, in view of these corroborations with the ocular account is a material piece of evidence which cannot be ignored in any manner. The prosecution, in these circumstances, has successfully established through ocular and medical evidence that the appellant while armed with pistol 30-bore had made two fires upon the two persons which resulted into their death.
19. So far the question as to what was the evidence to prove the scuffle between Muhammad Sarwar and the appellant which had allegedly taken place 15-days earlier to the occurrence, is concerned, the prosecution witnesses could not establish this scuffle between the two persons.
That scuffle was never reported to the police nor any witness in whose presence that quarrel had taken place, had been produced in the Court, so the statements made by PW.7 and PW.8, in this respect, have no independent corroboration. It is shrouded in mystery as to what happened immediately before the occurrence between the deceased and the appellant nor the complainant was able to narrate any such fact that before starting of the firing, the appellant had shown his vengeance on seeing the deceased persons. Similarly, PW.3 was handed over the sealed parcel of crime empty for safe custody in the Malkhana on 07.12.2009 which he kept there till 15.12.2009 and then he had sent the same to the Forensic Science Laboratory. He has not mentioned in his deposition as to when the parcel of the pistol was handed over to him for onward transmission to the Forensic Science Laboratory, however, the sale parcel was received in the laboratory on 18.01.2010 as is evident from Exh.PS. This delay in dispatching the material pieces of evidence to the relevant laboratory, has not sufficiently been explained on the record, so in this manner, the positive report of the laboratory is found to be of no legal consequences. Moreover, the appellant at the relevant time was having the age of about 20-years and according to the ratio of cases decided by the apex Court, this factor can be counted for commuting the capital sentence. In view of the afore-noted facts and circumstances of the case, we intend to modify the death sentence awarded to the appellant to one imprisonment for life.
20. For the foregoing reasons, the appeal in hand, bereft of merits, is dismissed with the modification that the death sentence awarded to Shahzad alias Bille, appellant, is commuted to imprisonment for life on two counts while remaining sentence in respect, of award of compensation to the legal heirs of the deceased persons, and sentence in default of payment of compensation, shall remain intact. However, the appellant shall be entitled to the benefit of his previous incarceration. The sentences shall run concurrently. The Murder Reference sent by the learned Trial Court is answered in negative and death sentence awarded to the appellant Shahzad alias Bille, is not confirmed.
Sentence reduced.