' LEHRASAP KHAN, J.--Ibrar Hussain (50) son of Capt. (Retd.) Saif Ali, Subedar (Retd.) Muhammad Ayub (68) son, of Muhammad Sharif, have been convicted by the learned Sessions Judge, Jhelum, vide judgment dated 8-1-1985, under sections 302/34 and 307/34, PPC for causing the murder of Mst. Fehmida Begum (30) wife of Saglain Hussain and for attempting the murders of Mazhar Hussain, Misri Khan, Sajjad Hussain PWs. And one Muhammad Afzal father of Sajjad Hussain. Ibrar Hussain has been sentenced to death and a fine of Rs.5,000 under section 302/34, PPC. In default of payment of fine he has been ordered to suffer R.I. For one year. Muhammad Ayub has been sentenced to imprisonment for life and a fine of Rs.5,000 or in default one year R.I. Under section 302/34, PPC. Both of them have further been sentenced to three years' R.I. Each under section 307/34, PPC. The substantive sentences have been ordered to run concurrently. It has also been directed that fine, if realized, would be paid as compensation to the legal heirs of the deceased.
Munir Hussain son of Raza Hussain, a co-accused of the aforementioned convicts has, however, been acquitted vide the same judgment.
' Ibrar Hussain and Muhammad Ayub have filed Criminal Appeal Nos.75/85 and 25/85, respectively, challenging their convictions and sentences. The matter also stands referred to us under section 374, Cr.P.C. Seeking confirmation of death sentence awarded to Ibrar Hussain. The complainant has filed Criminal Revision Nos.590/85 and 663/85, challenging the acquittal of Munir Hussain and seeking enhancement of sentence awarded to Muhammad Ayub, respectively. All these matters shall be disposed of by this judgment.
2. The occurrence in this case took place on 13-7-1983 at 6.00 p.m. In Dhok Tall, within the area of village Gurrah at a distance of 10 miles from Police Station Chooa Saidan Shah, then District Jhelum (now District Chakwal).
' The occurrence was reported to the police through F.I.R. Ex.PH at 1.30 a.m., the same night, by Mazhar Hussain P.W.7, brother of. Mst. Fehmida Begum deceased. The F.I.R. Was recorded by P.W.5 Barkat Ahmad, the then M.H.C. Police Station Chooa Saidan Shah.
3. Regarding motive it has been alleged that about a year before the present occurrence, Muhammad Afzal, father of Mazhar Hussain complainant, purchased 27 marlas of land in front of his house across the lane from Capt. Lehrasap Khan. This sale was pre-empted by Ibrar Hussain successfully and thus he obtained possession of the land from Muhammad Afzal. Ibrar Hussain claimed that the lane in front of the house of Muhammad Afzal was part of the aforementioned land. This claim was being contested by Muhammad Afzal. Civil litigation was pending between the parties. A stay order was obtained by Muhammad Afzal against Ibrar Hussain from the Court of the learned Additional District Judge, Jhelum, that status quo should be maintained. Nevertheless, on the day of occurrence at about 2.00 Ibrar Hussain and Muhammad Ayub armed with Sotas and Munir Hussain armed with sword came in front of the house of the complainant and started digging the lane in order to include the same into their land. The complainant party prevented them from doing so. The altercation led to a quarrel and the assailants caused injuries to Mazhar Hussain and Sajjad Hussain with Sotas and sword etc. The complainant party in retaliation resorted to brickbatting. Resultantly Mst. Hamida Begum daughter of Muhammad Ayub was injured. With the intervention of Zarait Hussain (not produced), the parties stopped fighting. This incident was not reported to the police.
4. About the main occurrence, it has been stated that on the same day, the complainant and his father Muhammad Afzal, his uncle Misri Khan and his brother Sajjad Hussain started re-fixing the stones in the lane in front of their house which were allegedly removed during the earlier occurrence. The appellants and the co-accused saw the complainant and others that they were re-fixing the stones. Ibrar Hussain appellant armed with rifle, Muhammad Ayub appellant armed with .12 bore gun and Munir Hussain acquitted accused armed with sword climbed over the roof of the house of Muhammad Yaqoob, brother of Muhammad Ayub. Munir Hussain raised lalkara that they should not be allowed to go alive. Muhammad Ayub fired his gun but the shot was missed.
The second shot was fired from rifle by Ibrar Hussain which too missed. In the meantime Muhammad Afzal went inside his house while the complainant, Misri Khan and Sajjad Hussain went in a lane between the house of the complainant and Misri Khan. On the report of fires Mst. Fehmida Begum deceased came in the street. (As per F.I.R. Version she came running to her father's house.
According to the evidence at the trial she came out of her father's house). When she reached near the gate of the Haven of the complainant etc. Muhammad Ayub fired at her by .12 bore gun hitting her on the forehead. The second shot was fired by rifle by Ibrar Hussain hitting her on the front right chest. After sustaining the injuries she fell down. In the meantime, Afsar Khan and Zarait Khan (both given up as having been won over), reached the spot whereafter Ibrar Hussain etc. Got down from the roof and went inside the house of Capt. (Retd.) Saif Ali.
' Mst. Fehmida Begum in injured condition was removed in a Suzuki Van by the complainant, his father Muhammad Afzal, and his brother Sajjad Hussain to Civil Hospital, Pind Dadan Khan. Soon after her arrival at the hospital, Mst. Fehmida Begum succumbed to the injuries before any medical aid could be given to her.
5. After recording the F.I.R. Ex.PH, Barkat Ahmad P.W.5, MHC, went to Civil Hospital, Pind Dadan Khan where he prepared the injury statement and the inquest report in respect of the dead body of Mst.
Fehmida Begum. He entrusted the dead body of the deceased to Muhammad Ramzan FC P.W.4 for being escorted to the mortuary.
6. The autopsy on the dead body of Mst. Fehmida Begum was performed by Dr. Muhammad Sharif Khan Bhatti (P.W.1), the then Medical Officer, Civil Hospital Pind Dadan Khan on 14-7-1983 at 8.15 a.m. He noticed the following injuries on the dead body of the deceased:-
(1) An inflamed margin firearm punctured wound, 113" in circumference bone deer. It had slightly inverted margins on left side of forehead, 1" below the junction of hair and 1/3" left to the medial line.
(2) A firearm punctured wound, with inverted and inflamed margins and slightly oval in shape. The measurement of wound from right to left was I" and suproinferior length was 5/8", over the right margin of upper part of sternum. It had fractured the right side upper part of sternum and articular end of right side first rib. It passed through the chest cavity right side and was going downward, backward to the right side. It ruptured the right lung, upper lobe, causing the fracture of right side fourth rib at back. It also fractured the scapula of right side at middle with a wound of exit 1" circumference with everted margins. The right chest cavity was full of blood.
' He opined that the death was due to shock and haemorrhage caused by injury No.2 which was the result of firearm shot and was sufficient to cause death in the ordinary course of nature. He further opined that injury No.1 was also caused by firearm but was simple in nature.. All the injuries noticed by him on the dead body of Mst. Fehmida Begum deceased were ante-mortem.
7. Ibrar Hussain, Muhammad Ayub and Munir Hussain were arrested from village Gurrah on 16-7- 1983 by Aurangzeb Khan P.W.11 the then SI/SHO Police Station Chooa Saidan Shah. On 24-7-1983, Ibrar Hussain while in custody got recovered rifle P.4 from his house which was secured vide memo.
Ex.PM attested by Feroze Khan P.W.6, Aurangzeb Khan SI (PW.11) and Sher Khan (not produced). This is a licensed rifle of Capt. Retd. Saif Ali, father of. Ibrar Hussain appellant. Licence P.7 was produced by Capt. Retd: Saif All on the same day in the presence of the aforementioned witnesses which was taken into possession vide memo. Ex.PB. Muhammad Ayub while in custody got recovered gun P.4 from his house which was seized vide memo. Ex.PO. He also produced his gun licence P.8 which was taken into possession vide the same memo. This recovery also took place before the aforementioned witnesses. Similarly, Munir Hussain acquitted accused led to the recovery of sword P.5 from his house, which was taken into possession vide memo. Ex.PN in the presence of the same witnesses.
8. At the trial Mazhar Hussain P.W.7, brother of the deceased, Misri Khan P.W.8, paternal-uncle of the deceased and Sajjad Hussain P.W.9, another brother of the deceased, testified as eye-witnesses to furnish the ocular account of the occurrence. Muhammad Afzal, father of the deceased, has been given up as unnecessary while Afsar Khan ; and Zarait Hussain have been given up as having been won over. Mazhar Hussain, Misri Khan and Sajjad Hussain have fully supported the prosecution case and according to them Mst. Fehmida Begum received firearm injuries at the hand of Ibrar Hussain and Muhammad Ayub.
9. The appellants as also the acquitted accused totally denied the allegations. They claimed that they have been falsely involved due to enmity. ' No evidence, however, has been led by them in defence with the exception of copies of revenue record relating to land dispute between the parties. These are Ex. DC copy of Aks 'hajra, Ex. DD copy of another Aks Shajra, Ex.DF copy of report of Girdawar, Ex. DG copy of Naqsha Tajawaz, Exs.DJ & DK copies of Khasra Girdawari entries. The contents of the aforementioned copies of revenue records has no bearing for the purpose of the present case. The occurrence did not take place at the disputed piece of land. The appellants were allegedly present on the roof of the house of Muhammad Yaqoob and they were armed with weapons of offence at the eventful time while the deceased was present in the lane.
10. The learned counsel for the State and the learned counsel for the complainant vehemently supported the judgment under appeal and maintained that death of Mst. Fehmida Begum has been caused by firearms by the two appellants and that Munir Hussain, the acquitted accused, also shared the intention and participated in the occurrence while armed with a sword.
' The learned counsel, for the appellants, however, contended that the eye-witnesses in this case are closely related to the deceased and inimical towards the appellants. In case of such witnesses independent corroboration was essential which is not forthcoming. It has next been urged that the evidence is full of infirmities. The eye-witnesses have made improvements to bring their testimonies in line with the medical evidence. He also averred that according to their own showing the eye-witnesses could not see the assailants from the spot where they were present at the time of occurrence. He also pleaded that besides two shots which hit the deceased, it has been alleged that shots were fired by both the appellants but missed, but, no empty or lead has been recovered from the scene of occurrence.
11. We have considered the pleas raised on behalf of the prosecution as also by the learned counsel for the appellants with care. The occurrence took place at 6.00 p.m. In the month of July. This means that the incident happened during the broad daylight. It has taken place in the vicinity of the houses of the P.Ws. And in fact, the appellants originally opened the assault upon them and fired at them but the shots missed. In such circumstances it is quite natural and probable that the eye-witnesses were present on the spot and they witnessed the occurrence. There is no evidence on the record to suggest that there was some deep-rooted enmity between the parties. In fact, they are related inter se, of course, a petty land dispute was pending between them before a civil Court. In such circumstances, the chances of substitution of the appellants for the real culprits are very remote. Mere relation with the deceased in the absence of any deep-rooted enmity does not render the P.Ws. To be untrustworthy. We have therefore, come to the positive conclusion that Ibrar Hussain and Muhammad Ayub appellants injured Mst. Fehmida Begum by firing at her with their respective firearms. Her death has occurred as a result of shot fired by rifle by Ibrar Hussain while Muhammad Ayub caused a simple injury on her forehead by firing shot with his gun. The only overt act which has been alleged against Munir Hussain is that while armed with sword he was present with Ibrar Hussain and Muhammad Ayub on the roof of the house of Muhammad Yaqoob from where shots were fired at the deceased by Ibrar Hussain and Muhammad Ayub. He is also alleged to have raised lalkara that Muhammad Afzal, B Mazhar Hussain, Sajjad Hussain and Misri Khan should not be spared. He did not raise lalkara in regard to Mst. Fehmida Begum deceased. In such circumstances, the learned trial Court was justified in acquitting him by extending benefit of doubt.
12. So far as the question of sentence of the appellants is concerned, Muhammad Ayub has already been awarded lesser penalty of imprisonment for life, because he is liable for a simple injury to the deceased, the fatal injury was caused to her by Ibrar Hussain. The circumstances in which this occurrence took place make out a case of mitigation even in regard to Ibrar Hussain. In the earlier occurrence which took place at 2.00 p.m. His relative Mst. Hamida Begum received injuries at the hand of the complainant party. This fact is certainly liable for provocation, may not be grave and sudden. Moreover, the firing was resorted to against Muhammad Afzal, Misri Khan, Mazhar Hussain and Sajjad Hussain. The unfortunate deceased suddenly came in the lane and received injuries resulting into her death. Ibrar Hussain has fired only one shot which caused fat injury to the deceased. In such circumstances we are of the view that alternate penalty of imprisonment for life provided under section 302, PPC shall meet the ends of justice in case of Ibrar. Hussain. {{PAGE BLUR}}
13. In the light of the foretitit''conclusions, we maintain the convictions of Ibrar Hussain and Muhajhrhad Ayub under section 302/34,. PPC as also under section 307/34, preq, hut we alter the sentence of - death awarded to Ibrar Hussain thAmnA. :sonment or life. The sentence awarded to both the appellants under,gaction 307/34, PPC as also the sentence of imprisonment for life awarded to Muhammad. Ayub under section 302/34, PPC are maintained., The death sentence awarded to Ibrar Hussain is thus not confirmed. But 'for thi'"ititteration in the sentence of Ibrar Hussain from death to iittitiAlohiiiiiiivfbr life, the under consideration appeals are dismisseW*4mk tti6eviOign petitions are' also dismissed in limine.