' RASHID AZIZ KHAN, J.--- Muhammad Ali son of Barkat Ali (45) was sent up for trial by Police Station Renala Khurd, District Okara, for the murder of his father aged about 70 years, and his brother Ahmad Ali aged 19/20 years. The learned Sessions Judge, Okara vide his judgment, dated 21-1-1986 sentenced him to death on each count and to pay a fine of Rs,10,000 on each count, or in default in payment of fine to undergo six months' R.I. The convict Muhammad Ali has appealed to this Court.
The case is also before us for the confirmation of his death sentence. Both the matters will be disposed of by this judgment.
2. The prosecution story, in brief, is that the first informant Rehmat Ali on 29-5-1983 at about 2-30 p.m. Alongwith one Noor Muhammad, P.W. Went to the land of Muhammad Yaqoob, for obtaining thrasher. The land of Barkat Ali, deceased, was at a distance of about one Acre. The first informant was still discussing the matter with Muhammad Yagoob when they heard noise of altercation between Barkat Ali and his son Ahmad Ali on one side and Muhammad Ali on the other. The witnesses proceeded towards them. In the meanwhile, Muhammad Ali, accused with his licensed .12 bore gun fired at his brother Ahmad Ali, whereupon he fell down. The second fire was made at Barkat Ali, father of the accused, which also hit him and he too fell down. The witnesses tried to apprehend Muhammad Ali but he threatened them and ran away.
' F.I.R. Exh.P.E. Was lodged by Rehmat Ali, P.W.2 on 29-5-1983 at 6-15 p.m. It was recorded by Muhammad Anwar, S.I./S.H.O., P.W.11. The distance between the place of occurrence and the Police Station Renala Khurd is eight miles.
' After the registration of the case, the Investigating Officer went to the spot and prepared the injury statements and the inquest reports in respect of both the deceased. Thereafter, he sent the dead bodies for post-mortem examination. He secured the blood-stained earth from two separate places where the dead bodies were lying. Two crime empties P.1 and P.2 were secured from the place of incident vide recovery memo. Exh.P.C. He recorded the statements of the witnesses under section 161, Cr.P.C. On 30-5-1983 he arrested the accused alongwith his gun P.3 and licence vide memo. Exh.P.D. He sent the accused to judicial custody on 31-5-1983. On 1-6-1983 he made an application Exh.P.K. For getting confessional statement of the accused recorded under section 164, Cr.P.C. In pursuance of said application he was sent for from jail on 4-6-1983, and a confessional statement Exh.F.L. Was recorded. After usual investigation, he challaned the accused.
2. Dr. Muhammad Naseem Ahmad, Medical Officer, Renala Khurd, P.W.6, on 30-5-1983 at 2-00 p.m.
Conducted the post-mortem examination on the dead body of Barkat Ali and found ten injuries.
According to him, all the injuries were caused with fire-arm within 18 to 20 hours. In his opinion, the death had occurred due to the following injuries:--
(3) An oval fire-arm wound with inverted edges 1 c.m. x 3/4 c.m. x bone deep on the right front of chest 3 c.m. Below injury No,2. There was blackening round the wound.
(4) An oval fire-arm wound with inverted blackening edges 2-1/2 c.m. x 1 c.m. x bone deep on the right nipple.
' On the same day at 3-30 p.m., he also conducted the post-mortem examination on the dead body of Ahmad Ali, aged about 19/20 years, and found 14 injuries. All the injuries were caused within 18 to 20 hours of its examination. In his opinion, injuries Nos. 6, 7, 8 and 9 had caused severe hemorrhage and shock, therefore, were sufficient to cause death in the ordinary course of nature.
The injuries are as under:--
(6) An oval fire-arm wound with inverted and blackening 1 c.m. x 1 c.m. x bone deep just above left nipple on its inner side.
(7) An oval fire-arm wound 1 c.m. x 1 c.m. x bone deep with inverted edges and blackening on front of left chest 2 c.m. Inner to injury No,6.
(8) An oval fire-arm wound 1 c.m. x 1 c.m. x bone deep with inverted and blackening on front of left chest 6 c.m. Below injury No,7.
(9) An oval fire-arm wound 1 c.m. x 1 c.m. x bone deep along with blackening and inverted edges 4 c.m. Below and outer side of injury No,8.
3. The prosecution in support of its case produced eleven witnesses in all. P.W.1 Ghulam Nabi had attested the recovery of crime empties secured from the spot. The eye-witness account has been furnished by Rehmat Ali, Muhammad Yagoob and Noor Muhammad, P.Ws. 2, 3 and 4, respectively.
The site plan Exh.P.F. And Exh.P.F./1 was prepared by Muhammad iYacloob, Patwari, P.W.S. The confessional statement of the appellant was recorded by Malik Anwar Ali, M.I.C., Okara, P.W.10, on 1- 6-1983. The case was investigated by Muhammad Anwar, S.I. P.W.11. The rest of the witnesses are of formal nature, therefore, need not be discussed.
' At the conclusion of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. Wherein he refuted the prosecution evidence. He pleaded innocence and also claimed the right of self-defence. He also admitted having made confessional statement.
4. It is contended by learned counsel for the appellant that the appellant was arrested on 30-5- 1983 and the same day he volunteered to make a confessional statement, therefore, the same may be accepted as it was made immediately after the commission of the offence. Submits that the prosecution case even if believed, does not belie the confessional statement because none of the witnesses had seen the origin of the fight. Submits that it would be a case of two versions and the one favourable to the appellant be accepted.
5. We have heard the learned counsel and gone through the evidence with their assistance. As far as the occurrence in the present case is concerned, the place of incident as well as the weapon with which both the deceased were done to death is accepted by both the sides. Therefore, it is held that the deceased was done to death on 29-5-1983 with a .12 bore gun.
' The eye-witness account has been furnished by Rehmat Ali, Muhammad Yagoob and Noor Muhammad, P.Ws.2, 3 and 4, respectively. None of them is related to either party, therefore, they are independent. The defense has not suggested any motive or on the part of the witnesses to falsely implicate the appellant. We have examined the statements of the eye-witnesses and are convinced that they are truthful witnesses and can safely be relied upon. All the eye-witnesses are unanimous that they heard the altercation between both the deceased on one side and the appellant on the other, and thereafter the appellant fired at them which resulted in their death. It has also come on the record that there was no previous enmity between the parties. In these circumstances, we hold that the witnesses were present at the spot and they witnessed the occurrence, but they were not aware about the origin of the fight because when they witnessed the occurrence, the fight had already commenced.
' As far as the confessional statement made by the accused, about the occurrence is concerned, due weight has to be given to it subject to the scrutiny by this Court. The appellant in his confessional statement stated that both the deceased were armed with Sota and Sickle and started causing him injuries, therefore, in right of his private defence icaused their deaths. It is neither contained in the statement recorded under section 164, Cr.P.C. Of the appellant that he was injured, nor this question was put to the Investigating Officer, that at the time of his arrest the appellant was in injured condition. In these circumstances, we can safely rule out that either of the deceased was armed with any weapon. So much so not even a suggestion has been given to any of the eyewitnesses nor the Investigating Officer found any weapon near the dead bodies. In these circumstances, we hold that both the deceased were not armd with any weapon.
' For what has been discussed above, we hold that the prosecution has been able to prove its case beyond doubt that the appellant committed the murders of Barkat Ali, his father, and Ahmad Ali, his brother with gun. Since the origin of fight is not known, therefore, we feel it would not be safe to award the sentence of death. While dismissing the appeal, we alter the sentence of death on each count to imprisonment for life on each count. The sentence of fine shall however be maintained.
The death sentence is not confirmed. The appeal is dismissed in the terms stated above.