FALAK SHER, J.- LearncS Sessions Judge Khushab vide the impugned judgment dated 15.1.1990 acquitting co-accused Ghulam Abbas convicted and sentenced appellants Ata Muhammad (40) under section 302 PPC to imprisonment for life with a fine of Rs. 5000/- in default to serve another term of one year R1 for the murder of Mchboob (35); Bari Sultan (30) under section 307 PPC to 7 years R1 with a fine of Rs. 2000/-or in default to suffer further term of six months R1 for causing injury to Muhammad Sher PW and their brother Ghulam Habib (25) under section 326 PPC to 2 years R1 with a fine of Rs. 1000/- in default to serve another term of 3 months R1 for causing injury to the deceased; the fine if recovered from Ata Muhammad and Ghulam Habib to be paid as compensation to legal heirs of the deceased and that from Bari Sultan to the injured PW, availing the benefit contemplated by section 382-B Cr.P.C. Ghulam Habib feeling contented with the conviction and sentence opted not to prefer any appeal whereas the appellants have recoursed to Crl. Appeal No. 38/90 while the complainant discontented with the returned verdict by virtue of Crl.
Revision No. 600/90 has sought enhancement of the sentence awarded to the convicts in addition to challenging acquittal of Ghulam Abbas and are disposed of hereinbelow.
2. Muhammad Yaqub PW7 brother of the deceased and that of the injured Muhammad Sher PW 8 on 30.4.1986 at 8 p.m. Lodged first information report Ex. PG with Shafqat Ullah Niazi SI PW9 at police station Khushab initially under section 307/34 PPC to which section 302 ibid was added the next day consequent upon passing away of the deceased in the hospital to the effect that the complainant, the deceased, the injured PW and their third brother Alam Sher were tenants in cultivation of Malik Navid Ahmad Tiwana in village Hamoke, the complainant was putting up in the village while the remaining were having their residential dera on the lands, within a mile whereof the appellants along with their brother Ghulam Habib co-convict also had the dera and cattle heads of the two sets used to graze around within the vicinity. Around 10/11 a.m. Of the day of reporting consequent upon Ata Muhammad's (maternal cousin and brother-in- law viz., husband the complainant's sister) restraining the deceased and the injured PW from grazing cattle an altercation ensued precipitating into manhandling of the former by the latter who left the arena extending threats to sort out the same and with a view to wreaking vengeance the appellants, Ghulam Habib and Ghulam Abbas equipped with guns and sticks respectively ambushed the deceased and the injured PW while returning from their dera with the cattle- heads emerging from bushes about 5.00 p.m , jointly exhorting to avenge the morning incident, Ata Muhammad pioneering the assault fired at the deceased landing in his abdomen, Bari Sultan fired second shot at the injured PW finding its way on his right ankle as a consequence whereof both Collapsed on the ground where the deceased was caused a stick blow on the head by Ghulam Habib.
Muhammad Din and Muhammad Wazir paternal uncle and a friend respectively also witnessing the occurrence while harvesting wheat in the nearby fields rushed to the spot whereafter the assailants vanished away. The injured were initially transported to Civil Hospital, Khushab wherefrom on dispenser's advice were removed to District Headquarters Hospital Sargodha.
3. Shafqat Ullah Niazi PW9 after recording the FIR proceeded to the hospital by which time the deceased had expired thus prepared his injury statement Ex. PH, inquest report Ex. PJ despatched the dead body for post mortem examination under the escort of Umar Hayat RC PW2, secured into possession last worn bloodstained clothes of the deceased Shirt PI, Chaddar P2, sealed phial containing pellets vide memo Ex. PA tendered by the latter, crime empty P5 vide memo Ex. PC witnessed by Muhammad Hanif PW3 Allah Bakhsh (given up as unnecessary) in addition to the investigating officer, upon discharge of the appellants from Jauharabad hospital effected their arrest on 26.5.1986 and the same day on their pointation recovered unlicenced guns P3, P4 vide memos Ex.PD and PE from their residential Kothas lying in a steel box and earth-bin respectively witnessed by Ghulam Habib PW5 (complainant's brother's father-in- law), Muhammad Aslam (given up as unnecessary) in addition to the investigating officer, got site plan Ex.PF prepared from Muhammad Riaz Patwari PW6 and upon questions affirmed that the place of occurrence wasn't covered, 7 Karams away wherefrom the crime empty was lying unguarded, he visited Civil Hospital Jauharabad on 3.5.1986 where the appellants were admitted in injured condition and upon discharge were straight-away taken to their village for effecting recovery of the crime weapons.
4. Dr. Muhammad Zahid Shah PW10 on 30.4.1986 at 9.00 a.m examined the deceased as well as the injured PW and vide medicolegal reports Ex. PL and PM respectively observed the following:- "1. A incised wound 2 x ~ cm x bone deep on the left side of forehead.
2. Seven lacerated wounds each measuring 1 x 1 cm and were circular in shape on right lumber region and right aliac fossa and one near umbilicus (wound of entry). Four lacerated wound each measuring 1" x 1 cm on the back of right lumber region wound of exit)".
"1. A lacerated wound size 1~ cm x bone deep on the outer side of right leg immediately above ankle joint with swelling of the surrounding area size I6 x 8 cm", of firearm origin declared grievous on receipt of the X-Ray report divulging fracture of fibula.
5. The next day at 9.00 a.m. Consequent upon demise of the deceased he also conducted autopsy on the dead body identified by the complainant and vide post mortem report Ex. PK observing the injuries reported in the medicolegal report Ex. PL found all other organs healthy except fracture of anterior table of skull under injury No.l, stomach containing 2 ounces of semi digested food, small intestine multiple through and through perforations, mesentry multiple openings, fracture of the hip bone and vertebral column corresponding the injuries and recovering two pellets opined the cause of death to be shock and haemorrhage resulting from injury No. 2 sufficient to cause death in the ordinary course of nature, ante mortem of firearm origin while injury No. 1 of sharp edged within 4 to 5 hours duration preceding death post mortem whereof was conducted within 24/25 hours.
Responding to query explained in the medicolegal report Ex.PM of the injured PW expression "9 a.m." has been inadvertently recorded instead of "p.m."
6. Muhammad Yaqub complainant PW7 deposing to the prosecution story revealed that he was present in his wheat fields alongwith Muhammad Din and Muhammad Wazir PWs maternal uncle and friend respectively 4/5 killas away from the place of occurrence, the appellants were equipped with, guns, Ghulam Habib hatchet and Ghulam Abbas sota, Ata Muhammad's shot landed on the deceased's abdomen, Bari Sultan's on the right ankle of the injured PW, Ghulam Habib's hatchet on the deceased's leg with Ghulam Abbas exhorting to do away with the. Deceased and injured PW, whereupon they rushed to the spot and despite pointation of the giJns at them inflicted stick injuries to the appellants subsequent whereto they left for their dera, the deceased and the injured PW were removed to village on cots and were eventually transported to the hospital, the appellants were noted for the first time 7 karams away from the deceased and the injured PW, they were already possessed of the sticks, were not fired at by the appellants who had only taken one shot each at the deceased and the injured PW, they belaboured the appellants for about 5/7 minutes; repelling the suggestion qua revealing of the appellant's injuries for the first time with a view to rendering {{PART MISSING}} so did Bari Sultan at their hands and were taken to the Dera by Abbas and Habib, were not brought to Civil Hospital Khoshab so long as they happened to be there, Ata Muhammad was involved in a case under Offence of Zina (Enforcement of Hudood) in the year 1979 and eversince on account of matrimonial_estrangement his sister was putting up with him. Vehemently controverted the suggestion of being the aggressors and the occurrence a free fight. He was corroborated on all material particulars by Muhammad Sher injured PW.
7. Positive reports of the Chemical Examiner, the Serologist Ex. PO, PQ respectively and that of the Forensic Science Laboratory Ex. PR in the affirmative qua the crime empty P5 with the crime weapon P3 recovered from Ata Muhammad were tendered in evidence by the Pdblic prosecutor, while rest of the evidence was of formal nature.
8. Both the appellants under section 342 Cr.P.C, adopting the stance that the complainant side being the aggressor not only subjected them to multiple injuries but also were the originators of the complained of damage, in defence produced Dr. Nasir Khan DW1 testify the appellants medicolegal reports Ex. DD and DB respectively revealing 5 lacerated wounds, 17 contusions, 1 abrasion on chest and upper limb; 3 lacerated wounds.10 contusions 1 abrasion on nose, buttocks, upper limb etc.
9. (Learned counsel assailing the verdict under appeal contended that the medical evidence contradicts the ocular testimony both as to seat of the injuries as well as the weapon of offence; complainant party being the aggressor suppressed the injuries caused to the appellants and were divulged at the trial for the first time; the prosecution story suffers from inherent incurable infirmities viz., scaring away of the appellants equipped with lethal firearm, recovery of the crime empty from the spot after a day's pause is incredible and putting the prosecution version injuxta position with that of the appellants the latter seems to be reasonably probable, alternatively being a case of free fight the appellants haven't taken undue advantage for the each confined to solitary shot, therefore, deserve leniency in terms of sentence.
10. To the contrary learned counsel appearing on behalf of the State supported the judgment.
Whereas learned counsel for the complainant in the revision submitted that the crime empty having been despatched to the Forensic Laboratory three weeks prior to the recovery of the crime weapon i.e. On 28.5.1986 unimpeachably lends credence to the prosecution story ruling out possibility of fabrication, the defence version is utterly implausible because it preconceives possession of lethal armoury by the appellants which if had been the case then the same would have been deployed for rescuing the deceased and the injured PW from the appellants' assault instead of belabouring them with blunt weapons, while the prosecution story stands fully established by the ocular account furnished by the complainant and the injured PW whose presence on the spot has even been admitted by the appellants in addition to the proof positive furnished by the injuries on the latters' person who had ventured upon the murderous assault with pre-meditation in furtherance of the motive incident.
11. Having considered the arguments canvassed at the Bar I am of the opinion that the defence version is not even remotely probable being not a case of exchange firing because in view of the appellants' injuries the complainant side doesn't appear to be equipped with firearms. To the contrary the ocular account furnished by the complainant and the injured eye witness appeal to reason visualized conjunctively with the matching report of the Forensic Expert save for the suppression of appellants injuries which is quite understandable, since both the sides have not come out- with the whole truth; therefore, recoursing to the reconstruction theory it seems that the appellants' side with a view to avenging triviality of the motive incident launched the assault with pre-meditation wherein they also suffered the injuries of blunt weapon origin, qua which the returned verdict is unexceptionable; consequently, the appeal being devoid of any merit fails and is hereby dismissed.
12. However, Bari Sultan having served almost the entire sentence, save for couple of months, was released on bail two years ago therefore no useful purpose would be served by re-incarceration for the tinny remaining period, resultantly, his sentence is reduced to the one already undergone and is discharged of the bail bonds.
13. Likewise, no case for enhancement of sentence or taking a different view of the co-accused's acquittal is made out and accordingly the revision is also dismissed.