' The appellants, Muhammad Din and Muhammad Yaqoob alongwith one Riasat are accused of the commission of the murder of Noor Ahmad deceased. Since Riasat absconded, therefore, the appellants Muhammad Din and Muhammad Yaqoob were tried by the learned Additional Sessions Judge, Sheikhupura on the charge under section 302/34, P.P.C. For the aforesaid murder. Vide judgment, dated 31-5-1986 the learned Additional Sessions Judge, found both the appellants guilty on the said charge and thus, they were convicted and sentenced to undergo life imprisonment each and to pay fine of Rs.3,000 each or in default of fine to suffer R.I. For a term of three months each. Under section 544-A, Cr.P.C. Both the appellants were directed to pay an amount of Rs.3,000 each as compensation to the heirs of the deceased or in default thereof to suffer farther R.I. For a term of three months each.
2. Aggrieved by the conviction and sentences Muhammad Yaqoob appellant has filed Criminal Appeal No.387 of 1986 whereas Muhammad Din appellant has filed Criminal Appeal No.483 of 1986.
Both the appeals are taken up together and will be disposed of by this single judgment.
3. The unfortunate occurrence resulting into the death of Noor Ahmad deceased took place on 22- 4-1984 at 7 a.m. In the office of Union Council within the area of Nangal Sadhan, three miles away from Police Station Muridke. The F.I.R. Exh.P.K. Was lodged on the same day at the police station at 8-30 a.m. By Nazir Ahmad P.W.8, the brother of the deceased. It was recorded by Muhammad Maqsood P.W.12 Inspector/S.H.O. Police Station Muridke.
4. In brief in the F.I.R., it was stated that the complainant alongwith his deceased brother and some others were present in the Baithak of complainant in connection with the settlement of a family dispute. Muhammad Siddique came there at about 7 a.m. And told Noor Ahmad deceased who was also a Councillor that the Chairman of the Union Council had sent for the deceased. On the receipt of this message, both the deceased and the complainant went to the office of Union Council on a motor-cycle. The Secretary of the Union Council obtained signatures of the deceased on the declaration of assets. The complainant and Noor Ahmad deceased came out of the office of the Union Council when the absconder Riasat fired at him causing injuries on the abdomen. Noor Ahmad fell down and then appellant Muhammad Din fired a shot at the chest of the deceased Noor Ahmad. Appellant Yaqoob, then fired at the face of the deceased. The deceased succumbed to his injuries at the spot. The fireshots attracted Shafi Muhammad, Shah Din and Rehmat who also saw the occurrence. The motive for the commission of the crime as narrated in the F.I.R. Was that one Mst. Zarina paternal-aunt and mother-in-law of Riasat absconder got divorce from her husband and thereafter the deceased got married with her. This marriage was resented by the absconder Riasat and prior to the occurrence the deceased had also exchanged hot words with the Chairman of Union Council, Muhammad Ali and thus, the murder was committed by the appellants in conspiracy with the Chairman.
5. As far the commission of crime is concerned, the same stands proved on the record. The learned Additional Sessions Judge, awarded lesser penalty to A both the appellants on the ground that appellant Muhammad Yaqoob had no motive while Muhammad Din appellant had indirect motive.
Appellant Muhammad Yaqoob was stated to be a relative of Muhammad Din appellant who is father of Riasat absconder but the relationship with Muhammad Yaqoob appellant was denied.
6. After careful consideration of all the facts and circumstances of the case, this Court is not prepared to believe that the complainant, Nazir Ahmed P.W.8 accompanied the deceased to the office of the Union Council when Siddique delivered the message of the Chairman Union Council for the deceased, because according to the complainant many other persons were present in the Baithak in connection with a family dispute, therefore, it seems strange for the complainant to have gone with the deceased. The natural conduct in such like circumstances would be to send Nazir Ahmed complainant alone and to remain busy for the settlement of the dispute. Muhammad Siddique has not been produced. Similarly Shah Din an eye-witness cited in the F.I.R. Was also not produced P.W.9, Rehmat who is a neighbour, stated that he had gone to the office of the Union Council to get the forms of Identity Card attested. The occurrence had taken place at 7 a.m. While the office hours commenced at 7-30 a.m. Muhammad Shafi P.W.10 a nephew of the deceased stated that he had gone to drop his son at the school adjacent to the office of the Union Council.
7. It was admitted by the complainant that the Chairman, Secretary and Chowkidar of the Union Council were present but strangely enough none of them was examined. Veterinary Hospital, School and other buildings surrounded the scene of occurrence but none came forward to depose about the occurrence. The testimony of the Investigating Officer affirms that three other persons namely Muhammad Arif, Karim Bux and Seraj Din were also present near the place of occurrence but they were neither examined nor produced. It was stated that these persons were not produced because they could not identify the assailants. Such reason is not convincing because in villages every one knows the others and therefore, the truth is shrouded in mystery.
8. Admittedly, the deceased had gone to tha office of the Union Council where murder had taken place. He also signed the declaration of assets, therefore, his presence in the office of the Union Council cannot be doubted. However, as the F.I.R. Shows that previously both the deceased and Chairman had exchanged hot words with each other, therefore, the possibility cannot be ruled out that it was a sudden affair in which the deceased may have provoked the Chairman and the appellants.
9. In course of the hearing of the appeals it was also stated that the parties have also compromised. To ascertain the genuineness of the compromise, the legal heirs of the deceased were summoned. Nazir Ahmad complainant P.W.8 had also appeared in the Court and stated that he had forgiven the appellants in the name of Almighty God and compromise had taken place.
Mst. Wakilan Bibi, widow of the deceased also appeared and vouched for the compromise.
10. The offence does not fall within the purview of section 302, P.P.C. But is covered by section 304, Part I of the Pakistan Penal Code, therefore, the conviction and sentences of the appellants under section 302/34, P.P.C. Are set aside. The appellants are now convicted under section 304, Part I, P.P.C. They are behind the bars since 1984 and have already undergone imprisonment for five years.
11. In this view of the matter, the sentence already undergone by them would meet the ends of justice. Both the appeals preferred by the appellants bearing No.387 and 483 of 1986 are hereby dismissed with the modification in the conviction and sentence as noted above. The sentence of fine and direction to pay the compensation is also set aside. The appellants shall be released forthwith, if not required in any other case.
Conviction altered.