' QURBAN SADIQ IKRAM, J.--This is an appeal by Muhammad Arif alias Bahari to challenge hi conviction under section 302, P.P.C. By learned Additional Sessions Judge, Kasur who vide judgment dated 28-11-1984 sentenced him to death plus fine of Rs,5,000 or in default two years R.I. For the murder of Ghulam Hussain. It was ordered that half of the fine, if recovered, will be paid as compensation to heirs of the deceased.
' The appellant having been sentenced to death, the proceedings are also before us for confirmation of sentence.
' Maqbool Hussain and Muhammad, Sarwar wo co-accused of the appellants were however, acquitted by the me judgment.
' The above two matters will be decided together by this judgment.
2. The occurrence in this case took place at 11 a.m.-on 6-12-1981 in a. Field in village Wan Khara about 7 miles from Police Station Patoki District Kasur. The formal F.I.R. Ex.P.O. Was recorded by M.H.C. Abdul Sattar (not examined being dead) at the police station on 6-12-1981 at 1.40 p.m., on the basis of the statement Ex.P.E. Recorded by A.S.I. Zafar All Khan P.W.13 at Canal Bridge on the same day at about 12.30 p.m. (noon) at the instance of Ghulam Murtaza P.W.8.
' It was stated by Ghulam Murtaza complainant that he was employed at Chung as Forest Guard and had gone to his village Wan Khara on leave. On 6-12-1981 at about 11 a.m., he, his brother Ghulam Hussain and his son Abdul Ghafoor were proceeding to village Doba to settle lease money.
When they reached on Katcha Road near the village, all of a sudden Muhammad Arif armed with D.B. Gun. Sarwar and Maqbool armed with sticks came there shouting lalkaras. Muhammad Arif shouted that Ghulam Hussain will be tought a lesson for giving him knife blows. At this Ghulam Hussain deceased, in order to save his life started running. Sarwar and Maqbool accused chased him. They gave him stick blows and encircled him. Muhammad Arif then fired two successive shots at Ghulam Hussain who fell down. He further stated that the occurrence was witnessed by him, his son Abdul Ghafoor and Ghulam Muhammad P.W. They tried to rescue the deceased but could not help him due to threats by the accused. Ghulam Hussain died at the spot as a result of the injuries.
The three accused lifted his dead body and threw the same at the back of the house of Muhammad Rafique in the Barseem field belonging to Muhammad Nawaz. The accused then left the spot.
' The motive was stated to be that Ghulam Hussain deceased had illicit relations with Mst.Habibo daughter of Gama Lohar. Subsequently, Muhammad Arif accused also developed illicit relations with her. As such out of rivalary Ghulam Hussain deceased had given knife blows to Muhammad Arif. He was challaned and convicted. He came out of prison only about 1 (1/2) year earlier to this occurrence, after serving imprisonment.
' Ghulam Murtaza complainant leaving the dead body in the care of his son Abdul Ghafoor proceeded towards the police station to report the matter. He met A.S.I. Zafar Ali Khan in the way who recorded his statement Ex.P.E.
3. The dead body of Ghulam Hussain aged about 26 years was sent for post-mbrtem examination which was conducted at 8 a.m. On 7-12-1981 by P.W.3 Dr. Muhammad Ashraf who on external examination found the following injuries on the dead body:-
(1) Circular wound 1 c.m. Diameter in front of neck right side lower part. Margin of wounds were inverted. Wound was directed backward, down ward and had entered chest cavity. Apex of right lung was perforated and left chest cavity contained blood. Jugular and carodic blood vescles were lacerated on the right side.
(2) Two circular wounds 1 c.m. Diameter each outerside of right arm. Margins of the wounds were inverted, with exit wounds back of the right arm.
' (3) Circular wound 1 c.m. Diameter in front of right arm. Margins were inverted with exit wound inner side of right arm.
(4) Circular wound 1 c.m. Diameter back of right arm lower part. Margins were inverted with an exit wound infront of right elbow.
(5) Circular wound 1 c.m. Diameter infront of left arm. Margins were inverted with exit wound inner side of the left arm.
(6) Circular wound 1 c. m . Diameter outer and upper part of the left palm. Margins were inverted with and exit wound back of left thumb.
(7) Circular wound 1 c. Diameter left iliac reagon. Margins inverted. Wound was directed back-ward and had entered the abdominal cavity. Intestine and left vescels were perforated.
(8) Contusion 2 x 3 c.m. On left shoulder.
(9) Abrasion 1 x 1 c.m. Back of left eblow.
' On dissection right pleura was found perforated. The death was due to shock and haemorrhage as a result of the injury No,1 which was sufficient, in the ordinary course of nature, to cause death.
All the injuries had been caused by fire-arm. The death was immediate after receipt of injuries and the post-mortem was conducted after about one day of death.
4. A.S.I. Zafar Ali Khan P.W.13 during inspection of the spot on 6-42-1981 collected blood-stained earth from the place of occurrence, vide memo Ex.P,A. He also took in possession crime empties P.1 and P.2 from the place of occurrence at the same time vide memo Ex.P.B. Attested by Ghulam Hassan P. W.2 and Muhammad Hanif P.W. Not examined.
' The accused were arrested on 21-12-1981.
' Muhammad Arif alias Bahari accused on 26-12-1981 while in police custody led to the recovery of D.B. Gun P.10 from his house, belonging to his brother Ghulam Nabi, which was taken in possession by S.I. Shafqat Bari. P.W.14 vide memo Ex.P.G in presence of Shaukat Ali P.W.11 and Muhammad Latif P.W. Not examined.
' On the same day at about the same time in presence of the same witnesses Maqbool Hussain got recovered Sota P.11 vide memo Ex.P.H. And Muhammad Sarwar got recovered Sota P.12 vide memo Ex.P.J. These were not stained with blood.
' The two crime empties P.1 and P.2 were kept in safe custody by H.C. Muhammad Tufail P.W.10 in police Malkhana. On 12-12-1981 he handed over these crime empties to F.C. Muhammad Suleman P.W.15 who delivered them intact in the office of Director. Forensic Science Laboratory. .The gun P.10 was kept intact in the police Malkhana by H.C. Muhammad Sadiq P.W.4 on 26-12-1981. He handed over this gun on 30-12-1981 to F.C. Gohar Ali P.W.5 who delivered the same intact in the office of Forensic Science Laboratory Lahore. The Director Forensic Science Laboratory Lahore vide the report Ex.P.S. Opined that the left barrel of gun P.10 was not in working order and that both the crime empties P.1 and P.2 had been fired from the right barrel of the gun Ex.P.10.
' Investigating Officer took in possession copy of the judgment Ex.P.T. In case State versus Ghulam Hussain under section, 307/326 P.P.C. Regarding murderous assault on Arif Ali accused (complainant in the said case) by Ghulam Hussain deceased.
' The accused were challaned after completion of investigation.
5. In support of this case prosecution examined 15 witnesses in all. P.W.7 Ghulam Muhammad and P.W.8 Ghulam Murtaza were examined as eye-witnesses of the occurrence. Abdul Ghafoor another eye-witness named in the F.I.R. Was given up as unnecessary. The incriminating recoveries from the place of occurrence were witnessed by Ghulam Hassan P.W.2. The recovery of gun P.10 was supported by Shaukat Ali P.W.11 and S.I. Shafqat Bari P.W.14. The medical evidence was furnished by P.W.3 Dr.Muhammad Ashraf as given in detail above. The evidence of the rest of the witnesses was of formal nature.
' The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. They did not produce any evidence in defence. Muhammad Arif accused denied his relationship with Mst.Habibo. He also denied that Ghulam Hussain deceased had illicit relations with her. He denied his earlier quarrel with Ghulam Hussain deceased and stated that he had given secret information to police about theft of the gun of his father. He further stated that Ghulam Muhammad P.W. Was inimical towards him; that Ghulam Hussain deceased was a criminal and had many enemies and that he was killed by some unknown person.
' The learned trial Judge came to the conclusion that motive against Arif accused stood proved. He placed reliance on the evidence of eye-witnesses and incriminating recoveries and convicted the appellant as stated above.
6. In support of this appeal it is contended that the medical 1987] Muhammad Arif v. State 3167 (Qurban Sadiq Ikram, J) evidence was not in line with the ocular account furnished by the eye- witnesses. It is, therefore, argued that prosecution has failed to prove its case against the appellant. We have considered this contention. The learned counsel pointed out firstly that according to the medical officer injury No,4 could be caused from back and that the injury No,1 could not have been caused if the accused and the deceased were standing facing each other.
We have considered this contention and find the same without any merits. It is in evidence that after Lalkara by the accused Ghulam Hussain deceased started running to save his life. He was chased by the accused. He was encircled by the two co-accused of the appellant who then fired two successive shots at the deceased. It is not the case of prosecution A that the deceased throughout remained stationary when he was fired at by Muhammad Arif accused. He was a moving object. Muhammad Arif fired two successive shots at Ghulam Hussain deceased. Injury No,4 was on the back of right arm lower part. It had its exit wound in front of right elbow. The arm was again a moving object. There is nothing in evidence to show the exact position of the deceased at the time of receipt of injury No,4. In our view it was not necessary that the shot resulting in injury No,4 must have been fired from back of the deceased. The injury No,1 was directed backward, down ward and had entered the chest cavity. It injured the apex of right lung and perforated the left chest cavity. It will be noticed that the downward trend of the course of the bullet was not sharp. It travelled very slightly downwards from the wound of entry. It is possible that the deceased might have slightly bent himself to avoid hitting by the fire shot at the time of receipt of injury No,1 on his person. In our view medical evidence is in no way in conflict with the ocular account of the case.
7. The recovery of two crime empties was witnessed by P.W. Muhammad Hassan on 6-12-1981 during inspection of the spot by th police. He is resident of village Wan Khara. He was not related t the deceased. He had no enmity with the accused. He was an independent witness. The recovery of gun P.10 at the instance o Muhammad Arif appellant was witnessed by Shaukat Ali P.W.11. H was not related to the deceased nor had any enmity with the accused. He was also an independent witness. The gun P.10 was a licensed gun in the name of Ghulam Nabi, a brother of Muhammad Arif, appellant. As stated above the crime empties were sent to the Directo Forensic Science Laboratory on 12-12-1981. The gun was recovered on 26-12-1981 i,e, 14 days thereafter. The gun was received in the Forensic Science Laboratory on 30-12-1981. According to the report of Fire Arm Expert Ex.P.S. The two crime empties were found to have been fired from right barrel of the gun P.10. These incriminatin recoveries and the report of Fire Arm Expert Ex.P.S. Fully corroborate the eye-witness account of this occurrence.
8. The prosecution examined P.W.7 Ghulam Muhammad and P.W.8 Ghulam Murtaza as eye- witnesses of the occurrence. Ghulam Murtaz P.W.8 is real brother of Ghulam Hussain deceased.
Ghulam Muhammad P.W.7 is not related to the deceased. He had no enmity with the accused. He is an independent witness. The learned counsel contended that these witnesses should not be relied upon because the re-loading of the gun by Muhammad Arif accused at the spot is neither mentioned in the F.I.R. Nor in their statements during the trial. Secondly, that in the F.I.R. As well as in their statements these witnesses made no mention of the presence of the crime empties at the spot. Thirdly, that according to P.W.7 Ghulam Muhammad the Javi crop was nine inches high while according to P.W.9 Muhammad Yousaf there was no crop at that time, and finally that the deceased had many enemies who could have murdered him when no one of the witnesses was present there. We have considered these contentions. The fact that the F.I.R. Or the statements of two eye-witnesseses do not contain any mention of the re-loading of gun by Muhammad Arif or presence of the crime empties at the spot would not mean that these witnesses were not present to witness the occurrence. Thes were minor details. It was not necessary for the complainant to mention them in the F.I.R. It was also not necessary for these witnesses to enter in such details in their statements during trial. It is correct that the deceased had other enemies in the village but there is no circumstances in support of the argument that the real culprits were substituted by Muhammad Arif appellant. The occurrence took place at about 11 a.m. The statement Ex.P.E. Was recorded within 11 hour at 12.30 noon and the formal F.I.R. Was recorded at the police station at 1.40 p.m. i,e, within three hours of the occurrence. Both the eye-witnesses belonged to the village where this occurrence took place. Ghulam Muhammad P.W. Is an independent witness. Ghulam Murtaza though a brother of the deceased had no enmity of his own to falsely implicate Muhammad Arif in this case. Both the eye-witnesses , find corroboration to their evidence from incriminating recoveries an the medical evidence. Learned counsel argued that Ghulam Murtaz P.W.8 was posted at Chung District Lahore many miles away from the place of occurrence and as such was not in a position to witness this occurrence. This argument is without any basis because it was stated' by Ghulam Murtaza P.W.8 that he had come on three days leave tdG his village at the time of occurrence. His presence can, therefore, not be doubted. We do not find any circumstance to exclude the, evidence of these two Witnesses from consideration.
9. The motive in this case was that on 20-2-1978 Ghulam Hussain deceased had made a murderous assault on Muhammad Arif accused-appellant. He was prosecuted and convicted vide judgment Ex.P.T. Dead 8-7-1979. He served imprisonment and came out of jail about 11 year before this occurrence. Muhammad Arif, therefore, had a motive to murder Ghulam Hussain deceased.
However, we find that the prosecution has failed to bring on record any immediate motive of H this occurrence. The prosecution case is that Ghulam Murtaza P.W. Alongwith his son Abdul Ghafoor and his brother Ghulam Hussain deceased was proceeding to village Doba when Muhammad Arif and, his co-accused appeared at the scene of occurrence. It, therefore, appears to us that this was chance meeting of the parties when I Muhammad Arif accused fired two shots at Ghulam Hussain deceased to take revenge of knife injuries caused to him some time earlier by the deceased.
10. In view of the above discussion the conviction of Muhammad Arif alias Bahari appellant under section 302, P.P.C. Is maintained. The immediate motive of the occurrence being not available on record we reduce his sentence to imprisonment for life. Muhammad Arif alias Bahari accused is sentenced to imprisonment for life plus fine of Rs,5,000 or in default two years R.I. Under section 302, P.P.C. The entire amount of fine, if recovered, will be paid as compensation to the heirs of the deceased. The sentence of death is NOT CONFIRMED, The appellant will be allowed benefit of section 382-B, Cr.P.C. With the above modification Crl.Appeal No,703 of 1984 is dismissed.