' SHAHID HAMEED DAR, J.---Muhammad Iqbal-appellant was held guilty under section 302(b) P.P.C.
For the murder of Rab Nawaz, brother of the complainant, by learned Sessions Judge, Bhakkar vide judgment dated 24-1-2008 and sentenced to imprisonment for life with a direction to pay a sum of Rs,2,00,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default thereof to undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. Was also extended to him. His co- accused, Rab Nawaz and Ghulam Eesa, were, however, acquitted of the charge on extension of benefit of doubt.
2. The convict/appellant has filed Criminal Appeal No,141 of 2008 against his conviction/sentence, whereas the complainant preferred Criminal Revision. No,141 of 2008 seeking enhancement in the sentence awarded to the appellant. I propose to dispose of both the matters together through this single judgment.
3. The facts, as unfolded by Muhammad Bilal complainant (P.W.9), son of Muhammad Azeem, in F.I.R. (Exh.PF/1) are that he was an Imam Masjid in village Bharmi Nawab; he came to his village, Bharmi Chiragh to see his family on 5-10-2005; he along with Muhammad. Ibrahim P.W. (not produced) and Inayat Ullah (P.W.10) heard hue and cry, at about 3.00 p.m., whereon they came out of the house and saw Muhammad Iqbal (appellant), armed with pistol ..30-bore, Rab Nawaz (since acquitted) son of Qadir Bakhsh, armed with rifle .44-bore and Ghulam Eesa (since acquitted), empty handed, quarrelling with his brother Rab Nawaz and pressurizing him not to operate the peter-engine; when his brother stepped forward, Muhammad Iqbal (appellant) raised Lalkara and fired a pistol shot at him, which hit left side of his eye below the nose; Rab Nawaz accused (since acquitted) fired through his rifle, but it went, missing; his brother fell onto the ground badly wounded and succumbed to the injuries instantaneously; he and his aforesaid companions witnessed the occurrence; the accused fled the spot on catching sight of the witnesses; the motive behind the occurrence pertained to a previous dispute, which took place on 4-10-2005 between Muhammad Iqbal (appellant), his co-accused and Rab Nawaz (deceased) over operating the peter-engine, jointly owned by the mentioned accused and his brother Rab Nawaz (deceased).
This statement of the complainant was reduced into writing as fard biyan (Exh.PF) by Abdul Hameed, S.I. (P.W.11), at 4.45 p.m., on 5-10-2005, at the place of occurrence, on the basis of which F.I.R. (Exh.PF/1) was drafted by Hafeez-ur-Rehman Khan, S.I./DO (P.W.7).
4. After despatch of fard biyan. From the place of occurrence to the police station through Kaleem Ullah, 355/C, Abdul Harneed, S.I. (P.W.11) started investigating the matter; he examined the dead body of the deceased, prepared inquest report (Exh.PC), and sent the dead body to the mortuary under the escort of Muhammad Ramzan constable (P.W.6) for postmortem examination; he inspected the place of occurrence, drew visual-site-plan Exh.PJ, collected blood-stained earth from the spot vide memo Exh.PH, got prepared in duplicate site plan in-scale Exh.PD and Exh.PD/1 by Muhammad Aslam, Patwari Halqa (P.W.4); he arrested Muhammad Iqbal (appellant) on 7-10- 2005, who while in custody led to the recovery of pistol (P5) and two live bullets (P6/1-2) from the kitchen of his house, which was taken into possession by him vide memo Exh.PG, attested by Ijaz Ahmad, 471/C (P.W.8) and Shujaat Ali, 557/HC (not produced). After completion of investigation, the appellant along with Rab Nawaz and Ghulam Eesa (acquitted co-accused) was sent up to face trial. On denial of charge by him, the trial commenced.
5. During trial, the prosecution produced eleven witnesses in all in support of its case. The ocular account was furnished by Muhammad Bilal complainant (P.W.9) and Inayat Ullah (P.W.10), who also deposed about the motive set up. Ijaz Ahmad, constable (P.W.8) stated about the recovery of pistol (P5) and live bullets (P6/1-2) vide memo Exh.PG at the instance of the appellant.
6. The medical evidence was presented by Dr. Muhammad Ramzan (P.W.3), who conducted autopsy on the dead body of Rab Nawaz, (deceased), at 9.00 p.m., on 5-10-2005, vide necropsy report Exh.PA (pictorial diagram Exh.PA/1) and found following injuries thereon:-
(1) A' firearm entry wound measuring 1 cm x 1 cm on left cheek 2 cm from the nose. Tattooing was present.
(2) A firearm exit wound measuring 2 cm x 1 cm on back of left side of head 12 cm from left ear.
(3) A lacerated wound measuring 2 cm x 1/2 cm on the right side of lower lip.
' The cause of death, recorded by the medical officer was due to injuries Nos.1 and 2, which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by firearm. The probable time that elapsed between injuries and death was "within ten minutes", whereas between death and postmortem examination, it was within about six hours.
7. Learned prosecutor gave up remaining prosecution witnesses as unnecessary and tendered in evidence report of the Chemical Examiner (Exh.PL) and that of the Serologist (Exh.PM) before declaring the prosecution case closed.
8. After closure of the prosecution evidence, statements of the appellant and those of his acquitted co-accused were recorded under section 342, Cr.P.C. The accused entered the plea of innocence and their false involvement in the case, opting not to depose under section 340(2), Cr.P.C. As their own witnesses or adducing the defence evidence except for a school leaving certificate (Exh.DA), which was tendered in defence by the appellant to claim minority. The answer given by the appellant to the question as to his involvement in the case and tendering of evidence by the prosecution witnesses against him, is reproduced hereunder for ready references:-- "The case against me and my co-accused is false. So far as the P. Ws are concerned, they are close relatives of Rabnawaz deceased and are interested in my conviction as well as in conviction of my co-accused. So they deposed falsely against me and my co-accused. The eye-witnesses are chance witnesses and inimical towards me and my co-accused.
' In fact, occurrence did not take place as mentioned by the prosecution. Actually, Mst. Ghulam Skina is my sister, Muhammad Ramzan son of Karim Bakhsh, Caste Kamboh is "chachazad" of Muhammad Bilal complainant and Rabnawaz deceased. Rabnawaz deceased demanded the hand of my sister Mst.Skina for above said Muhammad Ramzan but my father Rabnawaz flatly refused with the remarks that Muhammad Ramzan was not enjoying good character.
Rabnawaz deceased took it ill and had a grudge due to this reason particularly with regard to the remarks against Muhammad Ramzan.
' When Rabnawaz deceased was murdered, I was student of Govt. High School, Jhoke Samtia and studying there in those days. On the day and time of occurrence, Rabnawaz deceased along with Muhammad Nawaz P. W armed with weapon, emerged to my house and used filthy and dirty language and abused to my father in presence of women fake. My mother and sisters caught hold my father and took him in a room, where my father was confined by them and closed the door to avoid any incident at the hands of the deceased. On hue and cry, our closed relatives residing nearby, gathered there and tried to catch hold the deceased and grappled with deceased. During this process, pistol of Rabnawaz deceased was fired and hit to him as of result, Rabnawaz expired.
' The complainant and eyewitnesses were not present at the spot and after the death of the deceased, they came there and concocted false story against me and my co-accused.
9. The learned Additional Sessions Judge on culmination of trial proceeded to convict/sentence the appellant as mentioned hereinabove.
10. Learned counsel for the appellant has argued that it was proved during the trial that the appellant's father and acquitted co-accused Rab Nawaz was lessee of the disputed land; it also proved beyond any shadow of doubt that the place of occurrence was owned by Rab Nawaz accused and one Faiz Muhammad jointly; in fact the unfortunate incident took place due to stubbornness and aggressive conduct of the deceased, who trespassed onto the land of the accused to dictate terms and commit roguery, which ended in termination of his own life; no independent evidence was produced by the prosecution and one, Muhammad Ramzan P.W. (not produced), who was a disinterested person was given up by them so as to conceal the real facts; though a specific plea of sudden provocation has not been adopted by the appellant during trial, yet, it oozes from the prosecution case, the benefit whereof may be 'extended to the appellant, who, in particular circumstances of the case, has committed no offence and he merits acquittal like his acquitted co-accused.
11. Contrary to it, learned Additional Prosecutor General Punjab duly assisted by learned counsel for the complainant has supported the judgment passed by the learned trial court with the submission that the prosecution proved its case against the appellant beyond all reasonable shadows of doubt and that the complainant has filed a revision petition as well for awarding capital punishment to the appellant, who took the life of an innocent youth in an unprovocative attack; though the witnesses were closely related to the complainant, yet, their statements could not be brushed aside on this score alone; the motive stood fully proven and learned trial court committed an error by disbelieving it on flimsy grounds; Rab Nawaz had been murdered in a pre- meditated attack, therefore, the impugned judgment may not only be maintained, but sentence of the appellant may be enhanced to the optimum by allowing the revision petition filed by the complainant.
12. I have heard learned counsel for the parties at length and gone through the entire record of the case minutely.
' The most vital question in the circumstances of the case is, whether it was a case of pre- meditation or situation exploded all at once into the occurrence alleged or if the deceased, Rab Nawaz son of Muhammad Azeem, was a trespasser, having invited the trouble himself. The prosecution evidence is based on oral statements of Muhammad Bilal-complainant (P.W.9) and Inayat Ullah (P.W.10), who stated during trial that the fire shot made by Muhammad lqbal, accused-appellant, landed below the left eye, near the nose of Rab Nawaz (deceased), which proved fatal. It can easily be found from the testimonies of both the examined eye-witnesses that the occurrence took place just close to the house of the appellant, rather opposite to it, on its eastern side, which fact can be verified from the visual site-plan (Exh.PJ). The complainant- Muhammad Bilal (P.W.9), who is real brother of the deceased has admitted during cross- examination that Rab Nawaz accused (since acquitted) had obtained fourteen (14) kanals of land on lease from one Muhammad son of Hussaino, caste Kamboh, where peter-engine was installed, but he in the same breath denied a suggestion, put to him by the defence in an unwisely manner, whereby he contended that the place of occurrence was owned by. Rab Nawaz accused (since acquitted), who was the father of Muhammad Iqbal-appellant, along with one Faiz Muhammad jointly. The other eye-witness Inayat Ullah (P.W.10) frankly admitted during cross-examination that the house of Rab Nawaz accused was near the place of occurrence towards west and there was a street in between the place of occurrence and the said house. The land where peter-engine was installed fell at a distance of about 35/40 karams from the house of the accused and 50/60 karams from the house of the complainant as admitted by him in his statement. A question arises, if at all, the dispute between the parties related to peter-engineoperation, why the occurrence took place just in front of the house, of Rab Nawaz (acquitted accused), father of the appellant. The Ihata, wherein the occurrence took place, was exclusively owned by Rab Nawaz accused (since acquitted) and probably by Faiz Muhammad as well, as deposed about by the complainant (P.W.9), but, latter did not appear at trial to prove the said factum. Nevertheless, Rab Nawaz (deceased) neither owned nor possessed the said Ihata. The fact that his dead body lay therein, when recovered by the Investigating Officer, certainly causes eyebrow-raising and it lends a sense of strength to a crucial observation of the learned trial court made in the impugned judgment though not taken to its logical end, that The plea taken by accused that deceased had gone to the house of Rabnawaz accused and used filthy language and female members of Rabnawaz accused confined him in a room, cannot be ruled out.", which also gives rise to an impression that the plea taken by the accused in his statement under section 342, Cr.P.C. As regards his sister Mst.Ghulam Sakina might be partially correct, whose hand was demanded by Rab Nawaz deceased for his chachazad Muhammad Ramzan, but on denial of her father Rab Nawaz accused, he (deceased) got furious and used filthy language against the latter in presence of the women- folk of his house, who struggled hard to confine Rab Nawaz accused (since acquitted) in a room of the house to avoid any untoward incident, but, unluckily it did take place and resulted in the death of the deceased. Only one impression can be gathered from the statements of the witnesses forming the ocular account that the lone shot to the deceased was fired by Muhammad Iqbalappellant, though he categorically adopted the plea that he did not participate in the occurrence. The presence of the eyewitnesses at the relevant time of occurrence at the spot stands fully proven, but with an irrefutable conclusion that they did not speak the whole truth, as Rab Nawaz deceased had trespassed onto the Ihata of the accused with a threatening posture to the father of the appellant, as stated above. Being a young man of about 19/20 years of age, the appellant might have felt his blood bubbling in the veins when he heard Rab Nawaz (deceased) abusing his father in presence of the women-folk while standing in his Ihata, and in this situation of being effervescent, he fired the only but fatal shot and murdered Rab Nawaz, a trespasser. The medical evidence, tendered by Dr.Muhammad Ramzan (P.W.3) lends necessary corroboration to the role, played by the appellant during the occurrence.
13. So far as motive alleged is concerned, it has been rightly disbelieved by the learned trial court as no evidence could be presented by the prosecution during trial to the said effect. The recovery of pistol (PS) along with two live bullets (P6/1-2) vide memo Exh.PG on 13-10-2005, at the instance of the appellant is inconsequential and irrelevant as, Investigating Officer failed to recover any crime empty(ies) from the place of . Occurrence during inspection thereof.
14. In the light of the aforementioned facts, it becomes abundantly clear that on 5-10-2005, the deceased went to the Ihata of the father of the appellant as a trespasser, where he showed an unruly behaviour as discussed earlier, which led to an unfortunate incident severing his lifeline. It has been proved that the deceased lost his life due to a fire-shot, made by the A appellant but, the circumstances whereunder he did so needed serious consideration. The stories narrated by both the sides are polluted with certain amount of exaggeration, but it does not mean that the court stands precluded from drawing its own independent, result, certainly based on the available record. This court is of the considered opinion that the appellant-Muhammad Iqbal committed the offence under a compelling circumstance, discussed as above, which Rab Nawaz (deceased) overwhelmingly contributed to. Therefore., I alter conviction of the appellant under sections 302(b), P.P.C. To 302(c) P.P.C. And reduce his sentence from life imprisonment to rigorous imprisonment for fourteen (14) years with a direction to pay a sum of Rs,2,00,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default whereof to undergo simple imprisonment for six months. Benefit of section 382-B, Cr.P.C. Already extended to the appellant by the learned trial court is maintained.
16 (sic). With the above modifications in the sentence of the appellant, this appeal is dismissed.
Likewise Criminal Revision No,141 of 2008 filed by the complainant for enhancement of sentence of the appellant, for the discussion supra, also stands dismissed.