Muhammad Waheed Khan, J.--This judgment shall dispose of Criminal Appeal No, 30-J of 2016 filed by appellant Mumshad @ Irshad @ Shadoo ( against his conviction and sentence ), Criminal Appeal No, 181 of 2016 filed by the complainant Niaz Ahmad (against acquittal bf co-accused of appellant/Respondents No, 1 to 4) and M.R. No, 06 of 2016 forwarded by the learned trial Court for confirmation of death sentence awarded to appellant Mumshad Irshad (a) Shadoo or otherwise, as all these matters have been arisen out of the same judgment dated 21.12.2015 passed by the Addl. Sessions Judge, Okara in case FIR No, 559/2010 dated 15.11.2010 registered u/S. 302/324/148/149, PPC at Police Station Basirpur , Tehsil Depalpur , District Okara. Learned trial Court after conclusion, convicted and sentenced the above named appellant Mumshad
(a) Irshad (g) Shadoo as under: Under Section 302(b), PPC awarded Death sentence. He was also ordered to pay Rs, 2,00,000/- as compensation to the legal heirs of deceased Riaz Ahmad under Section 544-A, Cr.P.C., and in default thereof, he was ordered to further undergo simple imprisonment for a period of six months.
Whereas Muhammad Arif, Muhammad Ashfaq, Allah Ditta and Mushtaq Ahmed co-accused of the appellant were acquitted of the charge by the learned trial Court vide same judgment dated 21.12.2015. One Majid alias Maju, co- accused being Juvenile was tried separately by the learned trial Court under Juvenile Justice System Ordinance, 2000 and he was also acquitted of the charge vide separate judgment dated 21.12.2015. Appeal against his acquittal filed by the complainant is also being decided separately today .
2. Niaz.Ahmad complainant while appearing as PW -5 narrated the facts of the case as under: "That his brother Riaz Ahmad deceased alongwith Naseer Ahmad, and Mazher PWs went to visit their wheat and fodder crops, the accused persons had left their animals, and those were ruining /damaging their crops. His brother Riaz Ahmad deceased alongwith PWs Mohammad Mazher and Naseer Ahmad went to Chakki Machine' to complain them, where electric bulbs were on at that time. The accused Irshad alias Shadoo armed with .12-bore pump action, Ishfaq armed with .30-bore pistol, Arif armed with sota, Mushtaq armed with sota, Majid (Juvenile accused) armed with sota, Allah Ditta armed with sota were present with their common object and after consultation. The accused Arif made lalkara that Riaz Ahmad deceased etc be done to death today , upon which accused Ishfaq Ahmad started firing. Muhammad Iqbal and Waseem Ahmad PWs attracted at the place of occurrence, on hearing voice of fire shots. Irshad alias Shadoo accused made fire shot with his .12-bore, pump action, which landed on the neck of his brother Riaz. Ahmad deceased. After receiving the fire shot, Riaz Ahmad, deceased fell down on the ground, and succumbed to the injuries at the spot. Accused Arif continued, raising lalkaras and gave sota blow to Naseer Ahmad PW which hit him on backside of his head. Allah Ditta accused gave repeated sota blows on the back of Nasee r Ahmad PW. Mushtaq Ahmad and Majid alias Majoo accused gave sota blows to Mohammad. Mazher injured PW which hit him on his right and left side of back chest. Muhammad Arif accused gave sota blow to Riaz Ahmad deceased which hit on his back and tried to take his dead, body to his house. Accused persons fled away from the place of occurrence and PWs witnessed, the occurrence. The motive behind the occurrence was that two days prior to the occurrence a scuffle took place between Irshad alias Shadoo . and Arif with his brother Riaz Ahmad deceased upon damaging the crops. The accused persons have nourished grudge in their mind and they after consultation with each other committed murder of Riaz Ahmad and injured Naseer Ahmad and Muhammad Mazher ."
3. The post-mortem on dead body of the deceased Riaz Ahmad was conducted on 16.11.2010 at about 1.30 a.m. by Dr. Muhammad Sharif, Medical Officer THQ Hospital Depalpur , who recorded his statement before the learned trial Court as PW -9. He observed following injuries on person of the deceased:- A fire-arm lacerated wound 5 x 4cm x deep going margin inverted with slight blackening around the borders of this wound was present, with corresponding holes at upper part (calor) was present, at front lower and right, side of neck, 2cm outer side of midline (entry wound).
On dissection.
Injury No, i. Clerical at right side and first thorasic vertebra and second and third ribs at back on right side were fractured. Right lung ruptured. A wad and two pellets were recovered under the muscle at back and back of right chest. Chest cavity was full of blood.
Injury No, ii.
Contusion 10 x 2cm at back lower part of right chest. Injury No, iii.
Contusion 1 1 x 3cm at back middle of left chest.
Opinion.
After external and internal post-mortem examination of dead body the cause of death in his opinion was due to severe hemorrhagic and dramatic shock (hypovolemic) due to Injury No, 1 which was resulted, by fire-arm weapon, which was sufficient to cause the death - in ordinary course of nature. Injury No, 2 and 3 were by blunt weapon and may not cause the death. All injuries were ante-mortem. Duration between injuries and death was ten-twenty minutes and time between death and postmortem 6-7 hours.
4. Thereafter , police carried out usual investigation, prepared the report u/S. 173, Cr.P.C. by placing the name of appellant alongwith his co-accused in Column No, 3 as guilty . Learned trial Court after observing all the legal formalities, framed the charge against appellant alongwith his co-accused, which was denied by them, hence, trial commenced.
5. In order to prove its case, prosecution produced as many as ten witnesses. Ocular account consists on the statements of PW-5 Niaz Ahmad complainant of the case, PW-7 injured, eye-witness Naseer Ahmad and PW-8 another injured eye-witness Muhammad Mazhar . Medical evidence consists on the statements of PW-9 Dr. Muhammad Sharif, who conducted post-mortem on the dead body of deceased Riaz Ahmad and PW-11 Dr. Muhammad Youngs, who conducted medical examination of Muhammad Mazhar and Naseer Ahmad injured PWs.
Abdul Rehman Ex-ASI/Investigating Officer of the case appeared as PW-10, whereas remaining witnesses were formal in nature. It is pertinent to mention here that prosecution has given up five PWs, namely , Yasir Ali, Waseem Ahmad, Muhammad Akbar SI, Liaqat Ali 1557/C and Muhammad Afzal 148/C being unnecessary . Thereafter , prosecution closed its evidence by producing certain documents.
6. After recording the prosecution evidence, appellant was examined u/S. 342, Cr.P.C., wherein he denied all the allegation leveled against him and in response to the question "why the PWs have deposed against you and why this case registered against you?, appellant replied as under;- "It is a false case. All the PWs are closely related inter se and with the complainant. They are chance witnesses too. They have deposed falsely against me and other accused persons due to their enmity against us. Real facts of the case are that on 15.11.2010 at evenin g time I, Muhammad Arif and Majid alias Majhu (minor) were working at Aata Chakki (Flour Mills) at Sardar Kot where Moeen Ahmed Kamhar private servant of the complainant party reached there on donkey for processing of paddy . I, Muhammad Arif and Majid alias Majhu asked Moeen Ahmed Kamhar to wait for his turn upon which Moeen Ahmed got furious and he asked to Muhammad Arif and us that he would complain the same to his master and after that he returned back. Moeen Ahmed went to his Sardar Riaz and instigated him. Upon which Mukhtar slo Subah Sadiq and Riaz slo Zamman deceased came at the said Aata Chakki (Flour Mills) on motor cycle and slapped and abused Muhammad. Arif. I and Majid alias Majhu intervened and kicked out Mukhtar and Riaz deceased from IhatalAata Chakki (Flour Mills). After some time Iftikhar alias Bapha armed with .12 bore, Abdul Ghaffar armed, with Dang, Mukhtar slo Subah Sadiq armed with sota, Basharat slo Akram armed with .12 bore gun, Niaz Ahmed complainant and Riaz deceased both armed with pistols .30 bore reached at the place of occurrence after covering the distance of one and half KM after consultation with each other and they started aerial firing while forcibly entering our house for the purpose of murder us. On the reports of firing Allah Dittah Slo Muhammad Ali reached there and beseeched us upon which Abdul Ghaffar inflicted dang blow which hit Allah Dittah on his thumb of his left leg. Sheema Bibi intervened upon which Abdul Ghaffar seriously injured her. Iftikahr alias Bapha made fire with his .12 bore gun at Muhammad Arif and us with intention to murder us but the fire was hit to Riaz deceased under the neck at right side; Riaz Ahmed deceased fell down on the ground and succumbed to the injuries. The occurrence was witnessed by me, Muhammad Arif along with Ashfaq slo Arif Sheema Bibi and Allah Dittah. Mushtaq was working at a flour mills (Aata Chakki) at Mouza Nehal Mahar 8/9 Kills away from the place of occurrence at the time of occurrence. He was informed about the occurrence through telephone, on which he reached the place of occurrence and took the injured to the Chowki Police Station and Hospital for the purpose of medical examination of both the injured but neither the local police issued docket nor doctor medically examined the injured PWs in connivance witX the accused persons who were already in league with the complainant party . Muhammad Arif along with other injured were medically examined at THQ Hospital Depalpur on the order of Area Magistrate Depalpur . Moeen Ahmed Kamhar servant of the complainant and deceased Riaz Ahmed instigated the complainant party who after making consultation with each - other with their common object while armed with weapons forcibly' entered into our house and attacked, us for murder us and seriously injured Muhammad Arif Sheema Bibi and Allah Dittah and murdered Riaz deceased but later on complainant on the support of political figure and. in connivance with the local police lodged a false case and challaned us dishonestly in this false case. PWs are closely related to local MPA and due to his political influence they got me and my co-accused falsely involved in this case."
However , the appellant opted not to appear u/S. 340(2), Cr.P.C. but produced Shama Bibi as DW-1 and Allah Ditta as DW -2 in his defence.
7. Learned trial Court after appraisal of prosecution evidence convicted and sentenced the appellant as mentioned above, hence, these appeals and Murder Reference.
8. Learned counsel for the appellant submits that impugned judgment was passed by the learned trial Court on the basis of surmises and conjectures, which is result of mis-reading and non-reading of evidence. Submits that in fact the complainant party was aggressor as it is admitted fact that the alleged place of occurrence belongs to the accused party and they had been aggressed upon; that both the eye-witnesses suppressed the injuries sustained by two persons, namely , Mst. Shama Bibi and Allah Ditta from accused side, who were medically examined by the doctor and their medico legal certificates were also produced by the defence side as Ex-DA and ExDB respectively; that deceased Riaz Ahmad was not done to death by the appellant, rather he received injury of fire- arm weapons of his own companion Iftikhar alias Bhapha; submits that all the priva te PWs are interested witnesses and their testimonies carry no weight because they were inimical to the appellant; that evidence of motive has already been discredited by the learned trial Court; that the recovery of weapon of offence i,e, 12 bore gun pump action from the appellant and report of Punjab Forensic Science Agency have no evidentiary value as samples of empties and weapon of offence were sent to the said agency after the arrest of the appellant and lastly prayed that keeping in view the above circumstances, the impugned judgment is liable to be set aside and appellant may be acquitted of the charge.
9. On the other hand, learned Deputy Prosecutor General assisted by the learned counsel for the complainant vigorously controverted the arguments advanced by the learned counsel for the appellant and submits that appellant is nominated in the FIR with specific role for causing injury on the person of the deceased and it was the accused party who was the aggressor and appellant alongwith others after prepa ring and while sharing common intention attacked upon the complainant and killed one person and caused injuries on PWs; that prosecution successfully proved its case up to the hilt by producing witnesses of ocular account, in shape of two injured eyewitnesses, whose version is duly supported by medical evidence and evidence of motive as well as recovery in shape of 12 bore gun pump action got recovered from the appellant lend full corroboration to the ocular account and lastly prayed the instant appeal may be dismissed.
10. In support of Criminal Appeal No, 181 of 2016 filed by the complainant in terms of Section 417, Cr.P.C. against acquittal of Respondents No, 1 to 4, learned counsel for the complainant submits that the judgment passed by the learned trial Court to the extent of acquittal Of said respondents is against law and facts. Submits that since all the accused/respondents were nominated in FIR with specific roles, which stance was further proved by the prosecution through medical evidence and evidence of motive as well as ocular account which consists on the statements of injured PWs, who deposed about the time, place, mode and manner in which the occurrence was taken place and their presence was also admitted by the defence side. So, there was no occasion for the learned trial Court to acquit the above said respon dents from the case and finally prayed that the accused/respondents be convicted and sentenced in accordance with law .
11. We have heard the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.
12. To prove the ocular account, prosecution produced three witnesses i,e, complainant of the case Niaz Ahmad himself appeared as PW-5, whereas two injured eye-witnesses, namely Naseer Ahmad and Muhammad Mazhar appeared as PW-7 and PW-8 respectively . They deposed that two days prior to the occurrence, a scuffle took place between the appellant Mumshad @ Irshad Shadoo etc. withdeceased Riaz Ahmad upon destroying crop and owing to this grudge, appellant alongwith others committed murder of Riaz Ahmad deceased and caused injuries to PWs Naseer Ahmad and Muhammad Mazhar , when deceased alongwith PWs went to Chakki Machine (flour mills) to complain about destroying their crop by animals of accused, where appellant. Mumshad. @. Irshad 0) Shadoo armed with .12 bore gun pump action made fire shot which landed, on the neck of deceased Riaz Ahmad, who fell down the ground and succumbed to the injury at the spat. Accused Muhammad Arif made a sota blow to Naseer Ahmad injured PW and Allah Ditta gave sota blow on back of said injured. Whereas, accused Mushtaq Ahmad and Majid alias Maju gave sota blows on the back of deceased. Thereafter , all the accused fled away from the spot. The complainant and both the injured PWs are in agreement to the fact that it was the present appellant, who while armed with .12 bore gun pump action made fire shot which landed on neck of Riaz Ahmad deceased. Medical evidence lent support to the allegation leveled by the prosecution as well as fire-arm injury sustained by the deceased. All the above three PWs successfully faced the test of cross-examination and nothing came on record which could illicit the veracity and integrity of their depositions to the extent of role played by the present appellant.
No other material discrepancies were found in their statements and they remained consistent during the course of cross-examination while deposing before the learned trial Court regarding culpabilit y of the appellant and especially two eyewitnesses, namely , Naseer Ahmad and Muhammad Mazhar injured PWs , who have stamp of injuries on their person, which also gets support from the evidence of PW-10 Investigating Officer, who prepared their injury statements soon after the occurrence and also by 1)r. Muhammad. Younas, who appeared as PW-11 before the learned trial Court.
13. So, in our view ocular account furnished by theprosecution is trustworthy and worth reliance.
14. Medical evidence was furnished by PW-9 Dr. Muhammad Sharif and PW-11 Dr. Muhammad Younas. The former , conducted post-mortem examinat ion on dead body of deceased Riaz Ahma d, whereas the latter , medically examined the injured PWs. Fire-arm injury observed by PW-9 on the dead body of deceased Riaz Ahmad is a lacerated wound 5 x 4cm having inverted margins with slight blackening around the border of the wound at front lower right side of neck. The said injury is specifically attributed to the present appellant and the ocular version remained consistent about this injury that it was sustained by the deceased from the hands of appellant.
15. As far as motive part of the prosecution story is concerned, the complainant as well as injured PWs deposed in their statements that two days prior to the occurrence, a scuffle took place betwee n appellant Mumshad @ Irshad C Shadoo and deceased Riaz Ahmad upon destroying crop but there is no cavil to the proposition that prosecution has not produced any independent witness regarding the previous scuffle nor had reported the matter to the police and the learned trial Court also specifically observed that the occurrence regarding motive was not proved by the prosecution.
16. As far as recovery of .12 bore gun pump action from the appellant is concerned, though two crime empties of .12 bore gun Cl and C2 were found wedded with the gun allegedly recovered on the instance of the appellant and the report in this regard submitted by the Punjab Forensic Science Agency is positive but the facts remains that the accused was arrested in this case on 29.11.2010 and he led to the recovery of weapon of offence on 10.12.2010, whereas record of Punjab Forensic Science Agency shows that parcels containin g the crime empties and crime weapons were received by the said agency on 21.12.2010 and on 28.12.2010 respectively , which means that parcels containing the empties and crime weapon were sent to the office of Punjab Forensic Science Agency after the arrest of the appellant. The law is settled by now that the empties and weapons sent after the arrest of the appellant carries no evidentiary value.
17. On the other hand, we observed that two persons from accused side, namely , Mst. Shama Bibi and Allah Ditta had also received injuries in the incident and prosecution has totally suppressed these injuries while lodging the crime report and even while deposing before the learned trial Court. Both the above injured were medically examined by the order of learned Area Magistrate and their medico legal reports were also exhibited by the defence side as Ex-DA and ExDB respectively . Both the injured also appeared before the learned trial Court as DW-1 and DW-2, wherein they categorically deposed that it was the complainant party , who was aggressor , and they have been aggressed upon. It is admitted fact that venue of occurrence is the premises belongs to the accused party but at the same time it was not found that the complainant party was carrying any weapon while approaching to the premises of accused party . So, keeping in view the above circumstances, we hold that the present incident was not a result of pre-consultation or premeditation, rather it was occurred at the spur of the moment and it was a sudden fight between the parties, in which one person lost his life and two persons from each side sustained injures.
18. We are mindful of the fact that to invoke the provision of Section 302 (c), PPC, the ingredients of Exception 4 to the (erstwhile), Section 300, PPC should be proved, which is reproduced hereunder;- "Exception 4.- Culpable homicide is not murder if it is committed without premeditation in sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner .
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault." In order to attract the provision of Exception 4 to the erstwhile Section 300, PPC, it is not only to establish that the case was one of sudden fight taking place without any premeditation in the heat of passion upon a sudden quarrel but it was also required as a necessary ingredient that the offender must not have taken undue advantage or must not have acted in a cruel or unusual manner . So, in our view this is a case in which provision of Section 302 (c), PPC clearly attracts, as we observed above that the present occurrence had taken place at the spur of moment without premeditation and also the appellant had fired only once upon the deceased without repetition. Reliance in this regard is placed on the dictum laid down by the august Supreme Court of Pakistan in judgment reported as "Muhammad Asif v. Muhammad Akhtar and others" (2016 SCMR 2035 ). Reference in this regard may also be made to the cases of "Ali Muhammad v. Ali Muhammad and another" (PLD 1996 SC 274), "Azmat Ullah v. The State" ( 2014 SCMR 1 178) and "Zahid Rehman v . The State" ( PLD 2015 SC 77 ).
19. For what has been discussed above, we dismiss the Criminal Appeal No, 30-J of 2016 filed by the appellant Mumshad Ca Irshad (a) Shadoo, however , convert his conviction and sentence from Section 302 (b), PPC to Section 302 (c) PPC and by maintaining conviction u/S. 302 (c), PPC his sentence is reduced from death sentence to imprisonment for fourteen years. Benefit of Section 382-B, Cr.P.C. is also extended to him. Resultantly , Murder Reference No, 06 of 2016 is answered in NEGA TIVE and death sentence of appellant Mumshad @ Irshad @ Shadoo awarded by the learned trial Court is NOT CONFIRMED .
20. So far as Criminal Appeal No, 181 of 2016 filed by the complainant Niaz Ahmad against acquittal of accused/Respondents No, 1 to 4, namely , Muhammad Arif, Muhammad Ashfaq, Allah Ditta and Mushtaq Ahmad is concerned. In the light of above discussion, we hold that accused/Respondents No, 1 to 4 have rightly been acquitted of the charge by the learned trial Court, hence, Criminal Appeal No, 181 of 2016 filed by the complainant having no merits is dismissed.