' SH. MUHAMMAD ZUBAIR, J.--- Ahmad, Aslam, Najabat, Shamman and Manak were convicted under section 302/148/149, P.P.C. For the murder of Muhammad Saeed by the learned Additional Sessions Judge, Faisalabad vide his judgment, dated 15-12-1990 and sentenced as under:-- ' Under section 148, P.P.C. Two years' R.I. And a fine of Rs,1,000 each or in default of payment of fine 6 months' further R.I. Each.
' Under section 302, P.P.C. Aslam and Ahmad accused Death and a fine of Rs,10,000 or in default of payment of fine two years' R.I. Each. Najabat, Shamman and Manak accused Imprisonment for life and a fine of Rs,10,000 or in default of payment of fine two years' R.I. Each.
' It was ordered that half of the fine if realized would be paid to the heirs of the deceased. The convicts filed Criminal Appeal No,871 of 1990 whereas the complainant filed Revision No,117 of 1991 for enhancement of sentence and compensation. The learned Additional Sessions Judge, Faisalabad has sent Murder Reference No,72 of 1991 under section 374, Cr.P.C. For confirmation of death sentence.
' As these matters arise out of the same judgment, we propose to dispose of the same by this judgment.
2. The occurrence took place on 5-11-1987 at about 4-00 p.m. In the area of Chak No,211/JB, Police Station Bhawana District Jhang and the F.I.R. (Exh.P.D.) was recorded on the statement of Manak complainant (P.W.5) by Muhammad Ikram Ullah Khan Inspector (P.W.7).
3. As for the main occurrence, it has been stated by the complainant in the F.I.R. That he was resident of Chak No,211/JB and was engaged in cultivation. Muhammad Saeed deceased his sister's husband had obtained Killa No,22 in Square No,28 State land on lease. On the fateful day at 4-00 p.m. He alongwith the deceased went for ploughing the said land. He started ploughing in the field and Muhammad Saeed deceased started to cleanse watercourse. All of a sudden Ahmad and Manak sons of Hussain, Aslam son of Najabat, Najabat son of Shahmand, Shamman son of Walia accused, all armed with .12 bore guns by raising Lalkara emerged there. Najabat accused shouted that Muhammad Saeed deceased be not spared today. On this Aslam accused fired at Muhammad Saeed deceased hitting him on his left side of his face near nose. Then Ahmad accused fired which hit Muhammad Saeed deceased on right side of his face in the middle of his lips who expired by falling down on the spot. Other accused also resorted to indiscriminate firing.
On the hue and cry of the complainant, Sher Muhammad (P.W.6), Allah Yar (given up P.W.) were attracted to the spot and they witnessed the occurrence. Thereafter, all the accused ran away.
4. The motive is stated to be that the accused party were insisting that Muhammad Saeed deceased should give some land for their residential purpose from Killa No,22 which the deceased had taken on lease. On his refusal, the accused were annoyed. This culminated in the present occurrence.
5. The investigation in this case was conducted by Muhammad Ikram Ullah Khan Inspector (P.W.7).
After recording the F.I.R. He proceeded to the spot, and prepared rough site plan (Exh.P.H.) of the place of occurrence. He collected blood-stained earth from the spot and took into possession vide memo. Exh.P.F. And prepared inquest report (Exh.P.B.). He sent the dead body of Muhammad Saeed for post-mortem examination to the mortuary. Fateh Muhammad Constable (P.W.2) produced before him blood-stained last-worn clothes of the deceased i,e. Kurta P.1 and Chaddar P.2, which were taken into possession vide memo. Exh.P.C. And Fateh. Muhammad Constable also produced before him a sealed phial containing pellets. He also recorded the statements of the P.Ws. Under section 161, Cr.P.C. On 16-11-1987, he arrested Aslam, Najabat, Ahmad, Shamman accused. On 23-11- 1987 Shamman accused while in custody got recovered .12 bore gun P.4 from his residential house in Chak No,211/JB. On 24-11-1987 Muhammad Aslam accused got recovered .12 bore gun P.3 from the residential Kotha of Manak accused which was taken into possession vide memo. Exh.P.E. After completion of investigation, the challan was submitted in Court.
6. Dr. Liaqat Ali M.O. (P.W.1) conducted post-mortem examination on the dead body of Muhammad Saeed on 6-11-1987 at 8-00 a.m. And he found following injuries on his person:-
(1) A fire-arm entrance wound 1-1/2 c.m. x 2-1/2 c.m. Just on right side of both upper and lower lips.
Upper two central incisors and one lateral incisor on right side were broken. Lower lateral incisor tooth on right side was also broken. Both lips and tongue on front were injured.
(2) A fire-arm entrance wound 1-1/2 c.m. x 1-3/4 c.m. On left side of cheek, close to nose 1-1/2 c.m.
Below inner part of left eye. The bone underneath the injury was fractured.
' In the opinion of doctor, death was due to haemorrhage and shock caused by injury No,2 which was sufficient to cause death in the ordinary course of nature. Both the injuries were caused by fire-arm and were ante-mortem. The probable time between injuries and death was within a few minutes or so and between death and post-mortem examination was within about twenty hours.
7. The appellants when examined under section 342, Cr.P.C. Denied the prosecution allegations and made statements in the following words:-- "Haq Nawaz, a close relative of Manak P.W., had a dispute with the deceased over the possession of Killa No,22 Square No,28 of Chak No,211/JB. Haq Nawaz aforementioned was in actual possession of Killa No,22 of Square No,28 of Chak No,211/JB and Muhammad Saeed deceased and Manak P.W.
Wanted to take forcible possession'of the abovementioned property from Haq Nawaz abovementioned. Saeed deceased engaged one Youssaf, rogue of the village so that he may obtain the possession of that Killa number by constructing a residential house there. On the day of occurrence, Muhammad Saeed deceased alongwith Muhammad Yousaf abovementioned and some other persons were present at the spot armed with guns and they challenged Haq Nawaz who had also gun with him at that time. Haq Nawaz rushed towards our house which is close to the place of occurrence on the eastern side and he climbed over the roof of our house and then there was cross-firing between Saeed deceased and his companions on the one side and Haq Nawaz on the other side. In the meanwhile a fire of Haq Nawaz abovementioned hit the deceased resulting in his death. The deceased and his companions fired many shots towards our house which hit the rear wall of our house. After the occurrence, the complainant party colluded with Haq Nawaz being a close relative and obtained the possession of Killa No,22 of Square No,28 from him and got me and my co-accused persons falsely implicated in this case because the firing was shot from the roof of our house. The P.Ws. Are closely related to the deceased and they are also inimical towards us and that is why they have deposed falsely against us."
' The appellants were also examined under section 340(2), Cr.P.C. But each of the appellants refused to give any statement by stating 'No, because the prosecution has failed to prove its case against me'.
8. Placing reliance on the ocular evidence furnished by complainant, Manak (P.W.5) and Sher Muhammad (P.W.6) fortified by the recovery of guns at the pointation of the accused, the learned trial Judge convicted the appellants and awarded them the sentences mentioned above.
9. The learned defence counsel vehementaly contended that the prosecution though alleged the motive in this case but has failed to prove it, which adversely reflects upon the quality and character of the prosecution evidence as a whole. He also urged that the eye-witnesses are the close relations of the deceased and their evidence is against the medical evidence.
According to the Revenue Record, Sher Muhammad (P.W.6) does not own any property near the place of occurrence, hence he is a chance witness, so his uncorroborated testimony should not be accepted. It is a case of two versions, and the defence version is getting ample support from the evidence of Muhammad Ikram Ullah Khan 1.0. (P.W.7) who deposed that so many persons appeared before him in defence of all the accused that it was one Haq Nawaz who killed Muhammad Saeed deceased. In the end, the learned defence counsel contended that there is no corroboration whatsoever against Najabat, Shamman and Manak, over and above this, fire-shot attributed to Ahmad appellant is not fatal one, so his sentence needs consideration, if at all the prosecution evidence is believed against them.
10. The learned counsel for the State supported the judgment, of the learned trial Judge.
' The learned counsel for the complainant while supporting the impugned judgment contended that while maintaining the conviction of respondents Nos.1 and 2, the amount of fine be increased and separate compensation be given under section 544-A, Cr.P.C. He also pleaded that sentence of respondents Nos.3 to 5 be enhanced from imprisonment for life to death.
11. We have examined the respective submissions of the parties and perused the record carefully with their, able assistance.
12. In this case, there is no background of enmity except the motive mentioned in the first information report itself. The occurrence took place in the broad daylight and matter was reported to the police with great promptitude, which all together eliminates the chances of false implication of the accused persons. The prosecution has established the motive in this case and ocular version is being fortified by the medical evidence, so far as the role attributed to Ahmad and Aslam appellants is concerned, because as the deceased received two independent fire-shots on his person, as deposed by the doctor, the argument of the learned defence counsel that doctor admitted these two injuries could be the result of single shot is devoid of force and hence repelled because the doctor in his post-mortem report specifically affirmed that deceased received two entry wounds on his person. But the case of Najabat, Shamman and Manak appellants is distinguishable from the case of Ahmad and Aslam appellants, as there is no independent corroboration of the ocular verion with respect to the part played by Najabat, Shamman and Manak appellants. Unfortunately in our country, there is tendency to involve some innocent persons alongwith the actual culprits. The Courts of law usually look for some corroboration by way of abundant caution, even if the presence of eye-witnesses is established at the spot. Applying this principle, we accept the appeal qua Najabat, Shamman and Manak and acquit them and direct that they be released forthwith if not required to be detained in any other case. The appeal of Ahmad and Aslam appellant is dismissed on merits. This bring us to this aspect of the case, what should be the appropriate sentence in the present case. We find lot of force in the submission of learned defence counsel that sentence awarded to Ahmad needs reduction as fatal shot is attributed to Aslam appellant, we and reduce the sentence of Ahmad from death to imprisonment for life while maintaining his conviction under section 302, P.P.C., the sentence of fine is also maintained as directed by the learned trial Court, he is also given benefit of section 382-B, Cr.P.C.
The sentence of death of Ahmad appellant is not confirmed. There is no mitigating circumstance in favour of Aslam appellant because fatal shot to the deceased is attributed to him, so his sentence of death is confirmed and sentence of fine as awarded by the learned trial Court is maintained. The revision petition is dismissed.