SARDAR MUHAMMAD DOGAR, J.--- An occurrence had taken place on 31-8-1986 at 6-00 p.m. In the fields in the area of Village Gulshanpura Dakhli Uppi at a distance of 7 miles from Police Station Kot Momin. It was reported by Zulfiqar Ali son of Salam on the same day at 8-00 p.m. Vide F.I.R. Exh.
2. According to F.I.R. Jan Muhammad, Akbar, Akram, Aslant, War Ali, Mukhtar, Sattar, Anwar Ali, Abdul Jabbar, Safdar, Akhtar, Sultan, and Manzoor armed with guns and Sotas had launched attack on Muhammad Nazir, Qamar-ud-Din and Muhammad Azam when they were passing by on a tractor.
Jan Muhammad after raising Lalkara had fired the first shot which missed. Muhammad Nazir, Qamar-ud-Din and Muhammad Azam started running to the village leaving the tractor. Mukhtar fired a shot which struck Muhammad Azam at the chest. Jan Muhammad fired a shot which hit Nazir on the back of the head. Both of them fell down. Akbar fired at Muhammad Din which struck him on the left armpit near backside. He also fell down. Manzoor gave a Sota blow on the right eye of Nazir. Thereafter the accused armed with guns started firing which hit Azam and Nazir on different parts of the bodies. Mst. Maryam, Shamas Din and Mst. Tooba reached there hearing alarm and witnessed the occurrence. Abdul Jabbar, Safdar, Akhtar, Sultan and Manzoor caused them injuries with Sotas. Mst. Maryam also received injuries as a result of the shots fired by Akram and Sattar. The complainant did not dare to intervene. Muhammad Nazir, Azam and Qamar-ud- Din died at the spot.
3. On the same day Mukhtar Ahmad made statement. Exh.P.E. To Sher Muhammad Bochara S.I./S.H.O. At the spot regarding the, same occurrence According to Exh.P.E. The occurrence 1Iad happened in a different manner to that, it is stated that as tractors used to pass in front of their house they had constructed a speed-breaker so as to avoid any accident due to overspeeding.
Zulfiqar who was on unhappy terms with Mukhtar Ahmad s etc. Came there on 30-8-1986 and dismantled the speed-breaker. Mukhtar Ahmad was, sitting at his Dera alongwith Sultan, Ashraf and Anwar (deceased) at Maghrib wela on 31-8-1986. Muhammad Ilyas was passing in front of their Dera on a tractor. The complainant and Anwar stopped him and made a complaint as to why the speed-breaker had been dismantled. Ilyas felt annoyed and abused them whereupon Mukhtar Ahmed and Anwar gave pan fist blows. Anwar went away leaving the tractor threatening that he will deal with them. Shortly thereafter Mukhtar and Anwar came out of their house hearing Lalkara.
They saw Zulfiqar son of Salam Din, Siraj Ilyas, Liaqat, Zulfiqar son of Surjeet and Bashir armed with guns, Mashooq armed with a rifle, Shamas, Akbar son of Surjeet, and Ghafoor armed with Sotas, Azam, Oamar-ud-Din, and Nazir empty handed standing near their house. Ilyas gave a Lalkara that they should be taught a lesson for having quarrelled. Siraj fired at Mukhtar which missed. The shot fired by Zulfiqar son of Salam Din struck Anwar on the abdomen. He fell down. Shot fired by Liaqat at Mukhtar missed. He ran back into the Dera and picked up the gun of his cousin Jan Muhammad and started firing in self-defence. The accused also continued firing. Muhammad Ashraf and Sultan came there hearing alarm and witnessed the occurrence. Anwar died on the spot. The assailants ran away while firing. After they had left Mukhtar saw the dead bodies of Muhammad Nazir, Azam and Oamar-ud---Din lying at the spot.
4, For motive for the occurrence it is stated therein that Zulfiqar son of Salam Din had suspected that Anwar deceased had illicit relations with his wife. He also mentioned the breaking of the speed-breaker as one of the motives for the occurrence.
5. The police after investigation submitted two separate challans.
6. Mukhtar, Sattar, Akbar, Akram, Aslam, Jan Muhammad, Abdul Jabbar, Sultan, Manzoor, Safdar and Akhtar were challaned under sections 302, 307, 148, and 149, P.P.C. For having murdered Oamar-ud-Din, Azam and Nazir and for having launched murderous assault on Maryam, Tooba, Shamas Din and Siraj, Bashir while Zulfiqar son of Salam Din, Ilyas, Liaqat, Zulfiqar Son of Surjz:et, Akhar, Shams, Siraj, Bashir and Mashooq were challaned under sections 302, 307, 148 and 149, PY.C.
For the murder of Muhammad Anwar and for having launched murderous assault on Mukhtar Ahmad P.W.
7. The accused challaned for the murder of Wazir and for having launched murderous assault on Mukhtar Ahmad were tried vide Sessions Trial No.31/88 by Sessions Judge, Sargodha while the accused challaned for the murder of Oamar-ud-Din, Azam and Nazir and for having launched murderous assault on Maryam, Tooba, Shamas Din and Siraj were tried vide Sessions Trial Nu.80/87 by the same trial Judge.
8. The learned trial Judge vide judgment dated 18-9-1988 convicted only Zulfiqar son of alam Din and-r section 302, P.P.C. For having murdered Anwar, and sentenced him to death plus to pay a fine of Rs.25,000 in default whereof to undergo R.I. For 3 years. The fine on recovery was directed to be paid as compensation to the heirs of the deceased. All his co-accused were acquitted vide same judgment.
9. Out of Mukhtar Ahmad etc. (11 accused; tried for the murders of Azam, Oamar Din and Nazir aryl for having launched murderous assault on Mst. Maryam, Mst. Tobi, Shamas and Surjeet, only Mukhtar Ahmad was convicted under section 302, P.P.C. And sentenced to death on three counts plus to pay a fine of Ids. 30,000 on each count, in default whereof to undergo R.I. For 3 years on each count 14e was also convicted under section 324, P.P.C. For having caused injuries to the P.Ws.
And sentenced to undergo R.I. Fot 3 years plus to pay a fine of Rs.2,000 in default whereof to suffer further R.I. For 7 months. Abdul Jabbar and Sultan his co-accused were convicted under section 325, P.P.C. For having caused injuries to the P.Ws. And sentenced to undergo R.I. For 3 years ach, plus a fine of Rs.2,000 each in default whereof to undergo R.I. For 7 months each. Both of them were also convicted under section 323, P.P.C. And sentenced to undergo R.I. For one year each plus to pay fine of Rs.1,000 each in default whereof to suffer R.I. For 3 months each.
10. Zulfiqar filed Criminal Appeal No.1181 of 1988. Learned trial Judge made Reference. No.235 of 1988 for confirmation of his death sentence.
10-A. Mukhtar Ahmad, Abdul Jabbar and Sultan Ahmad filed Criminal Appeal No.1180 of 1988 against their convictions and sentences, while learned trial Judge made Reference No.240 of 1988 for confirmation of death sentence awarded to Mukhtar Ahmad. The State also preferred Criminal Appeall No.241 of 1989 against the acquittal of co-accused of Mukhtar Ahmad under section 302/ 149, P.P.C. (the appeal is still at motion stage).
11. Criminal Miscellaneous No.2 of 1990 was filed in Criminal Appeal -10.11.81 of 1988 (filed on behalf of Zulfiqar) wherein prayer was made for acquittal of the convict, as the complainants had compromised with him. Criminal Miscellaneous No.2 of 1990 was fled on 11-12-1990 in Criminal Appeal No-1180 of 1988, wherein prayer was made for acquittal of Mukhtar Ahmad as the complainants had compromised with him.
12. Both the appeals and the murder references were fixed for today. The parties had been directed to produce the heirs of the deceased in both the cases.
13. Statements of Mst. Amna Bibi wife of Anwar deceased, Mst. Fauzi Bibi mother of Anwar deceased have been recorded in Criminal Appeal No.1181 of 1988 (Murder Reference No.235 of 1988).
Statements of Mst. Parveen wife of Nazir deceased, Mst. Sharifan his mother, Mst. Rafiqan mother and Salam Din father of Qamar and Azam deceased, and Mst. Aasia wife of Qamar deceased have been recorded in Criminal Appeal No.1180 of 1988 (Murder Reference No.240 of 1988).
14. Normally the murder references and the appeals arising there from are disposed of separately but in the case in hand since there was only one F.I.R. And the accused in both the cases had been tried by way of accused in cross---cases, and the parties in both the cases have entered into compromise and heirs of the deceased in both the cases have made statements, we are disposing of all the matters by a single judgment. We may mention here that Criminal Revision No.258 of 103"9 filed on behalf of the complainant against the acquitted accused tried for the murder of Anwar was disposed of today vide separate order acting on the statement of counsel for the petitioner that he had been instructed to withdraw the petition as the parties had entered into compromise.
15. The case of appellants in both the cases and that of the respondents in both the Murder References is covered by Criminal Law (Amendment) Ordinance (IV of 1990) promulgated on 15-8- 1990. In that, offence under section 302, P.P.C. Was made compoundable. Consequent amendment in section 345, Cr.P.C. Was also made. In that, offence under section 302, P.P.C. Was added in the Schedule of offences, for which the parties could compromise.
16. We are convinced that the compromise between Mst. Amna wife of Anwar deceased and Mst.
Fauzi mother of the deceased with Zulfiqar appellant is genuine. Both the ladies made voluntary statement. They admitted that they had received the amount of Badl-i-Sulah ( L-1so J-4 ).The sons and daughters of the deceased were minors so their mother acted on their behalf. Their grandmother also vouchsafed the statement made by Mst. Amna that she had accepted the compromise and the amount of Badl-i-Sulah on their behalf. The appeal filed by Zulfiqar is, therefore, allowed by way of acceptance of compromise and he is acquitted. He shall be released forthwith if not required in any other case.
17. Likewise, we are convinced that heirs of Oamar Din, Azam and Nazir deceased have genuinely entered into compromise with Mukhtar Ahmad, against Badl-i-Sulah ( & fiat ), the receipt of which, they have acknowledged. Mst. Aasia who has received share on behalf of her minor sons and daughters, has no. Adverse interest against them. Similarly, Mst. Parveen who has received the share of Badl-i-Sulah on behalf of her son, has also no adverse interest qua her son.
18. The appeal filed by Mukhtar Ahmad against his conviction and sentences under section 302, P.P.C. Is allowed by way of acceptance of compromise. He is acquitted in that case.
19. Although, it is stated that the witnesses for inflicting injuries to whom, he (Mukhtar Ahmad) was convicted under section 324, P.P.C., have also compromised with him, yet they have not been produced to make statements in that regard. He, therefore, cannot be acquitted on the basis of compromise.
20. Learned counsel appearing on his behalf has not pressed for his acquittal on merits either. He has prayed for reduction of sentence of imprisonment, to that of already undergone, and remission of sentence of fine.
21. The sentence awarded to him under section 324, P.P.C. Is presumed to have started from the day he was convicted, i.e. 18-9-1988. He has thus already undergone 2 years and 8-1/2 months' R.I.
In the given circumstances, we feel reduction of sentence of imprisonment to that of already undergone plus remission of sentence of fine, will meet the ends of justice. Order accordingly. He shall be released forthwith if not required in any other case.
22. Abdul Jabbar and Sultan Ahmad who were convicted and sentenced under section 325/323, P.P.C., have already undergone the sentences awarded to them. Learned counsel for the appellants has not pressed the appeal qua them.
They have already been released from jail. No case for interference in the matter of their conviction under section 325/323, P.P.C. Is made out. The appeal qua them stands dismissed.
22-A. Since heirs of the deceased have compromised and the accused/appellants, who were convicted, have already been acquitted, the State appeal, which is still at motion stage, has become infructuous. The same stands disposed of accordingly.
Death sentences not confirmed.
H.B.T./Z-220/L