' This appeal has been filed against the judgment, dated 8-4-1990 passed by the learned Sessions Judge, Rahimyar Khan whereby the appellants were convicted and sentenced as follows:--
(1) Din Muhammad under section 302, P.P.C. To imprisonment for life and a fine of Rs,15,000 in default two years' R.I. Fine if realized to be paid as compensation to the heirs of the deceased Muhammad Ali.
(2) Ghullan under section 307, P.P.C. To seven years' R.I. And a fine of Rs,10,000 in default whereof two years' R.I. The fine if realized to be paid as compensation to Bashir Ahmad P.W.6 injured P.W.
2. The appellants alongwith the acquitted co-accused Kaura were tried for the murder of deceased Muhammad Ali and murderous assault on Bashir Ahmad P.W.G. Kaura co-accused was acquitted and the appellants were convicted and sentenced as above.
3. Briefly the prosecution case is that P.W.6 on 30-4-1984 at about 1-00 p.m. Made statement Exh.P.C. To the effect that he was a Zamindar and on the fateful day he alongwith Muhammad Ali, deceased after taking Khariat and meals from the shrine of Kaura Peer was returning to the house and when reached on the northern side of Darbar at a distance of about 21/22 Karams, Din Muhammad appellant armed with .12 bore double-barrel gun, Ghulan appellant armed with .12 bore double-barrel gun and Kaura, acquitted co-accused armed with a hatchet suddenly raised Lalkara from the back side that the complainant and the deceased would not be spared and Ghullan appellant made the first fire on P.W.6 which hit on his right side who fell on the ground. The second fire was made by Din Muhammad appellant which was hit on the left arm and back of Muhammad Ali, deceased who after running for some distance fell down. The occurrence was Witnessed by Ghulam Haider P.W.7 and Elahi Bakhsh P.W.10 who were coming from their houses towards the shrine. The appellants alongwith the acquitted co-accused after the arrival of P.Ws.
Escaped.
4. The motive is that Muhammad Ali, deceased about one year earlier to the present occurrence had murdered Mitha, brother of Kaura and Muhammad All (deceased) was challaned and was released on bail from the Court of Session and after release had come and was living with the complainant. The accused had grievance and due to that grudge after making consultation had made the murderous assault on P.W.6 and deceased Muhammad Ali. P.W.6 and Muhammad Ali, deceased in injured condition were being taken to the hospital when P.W.18 Shahbaz Hussain, S.I.
Recorded statement Exh.P.C. And sent the same to the police station where P.W.17 Muhammad Afzal, H.C. Recorded formal F.I.R. Exh.P.C./1.
5. The appellants alongwith the acquitted co-accused were challaned and sent up for trial. Charge under sections 302 and 307/34, P.P.C. Were framed against the accused upon which they denied the prosecution case and claimed trial.
6. The prosecution examined 18 witnesses to substantiate its case. The statement of D.W.1 was also recorded.
7. The motive behind the occurrence was stated by P.W.6, Bashir Ahmad complainant as stated supra. This witness had only stated about the motive and no other P.W. Has been produced to state about the motive. P.W.6 the complainant had stated before trial Court that Muhammad Ali, deceased was not living with him but he was living with one Karim Bakhsh and had not stated in Exh.P.C. That Muhammad Ali (deceased) was living with him. The motive is a double-edged weapon. No doubt, there was a previous enmity between the parties, the motive being so can be stretched in favour of either party.
8. Bashir Ahmad P.W.6, complainant, Ghulam Haider P.W.7 and Elahi Bakhsh P.W.10 have furnished ocular testimony on record. P.W.6 narrated the facts mentioned by him in his statement Exh.P.C. On the basis of which formal F.I.R. Exh.P.C./1 was recorded. P.W.7, Ghulam Haider had stated that in his presence, the appellants alongwith his co-accused had raised Lalkara at Muhammad Ali, deceased and Bashir Ahmad P.W.6 that they would not be spared. On this, Gullan accused opened the fire which hit P.W.6 and he fell on the ground. Din Muhammad appellant then fired which hit on the back of Muhammad Ali, deceased who fell on the ground 6 or 7 Karams ahead. On the arrival of P.Ws.7 and 8, the accused escaped.
' P.W.10 Elahi Bakhsh had stated that at the relevant time, he alongwith P.W.7 was going to the shrine of Garah Pir and when they reached near the shrine, they witnessed that P.W.6 and Muhammad Ali, deceased were coming back from the shrine. Din Muhammad, appellant was armed with .12 bore gun and Gullan was armed with .12 bore gun and Kaura with hatchet raised Lalkara at Bashir Ahmad and Muhammad Ali, deceased. Gullan appellant fired which hit him who fell on the ground. Din Muhammad appellant fired at Muhammad Ali deceased who fell on the ground about 6 or 7 Karams from Bashir P.W.6. The occurrence was also witnessed by Ghulam Haider P.W.7.
9. Dr. Abdul Wahab, P.W.14, medically examined P.W.6, Bashir and had found three injuries:--
(1) Lacerated wound of entry 1/2" in diameter on the left angle of the chest lower part 6 inches below and outer to the left nipple, posterior auxiliary fold line.
(2) Lacerated wound of entry 1/2" in diameter on the left side of abdomen at the level of umbilicus posterior to auxiliary line.
(3) Two lacerated wounds of entry 2 inches apart on the outer side of left hip 1/2" in diameter.
' Injuries Nos.1 to 3 were grievous and dangerous to life and caused by fire-arms.
' On the same day i,e. 30-4-1984 at 3-30 p.m. P.W.14, also medically examined Muhammad Ali, deceased in injured condition and had found the following three injuries:--
(1) Lacerated wound of entry 1/2" in diameter on the outer side and posterior part of right arm having a wound of exit 3" apart on the front. Of right arm.
(2) Lacerated wound of entry 1" x 1/2" on the back and left side of chest near inner border and inferior angle of left scapula A.F.B. Pellet felt on the outer side of left shoulder.
(3) Lacerated wound of entry 1" in diameter on the back and left side of chest lower part A.F.B. Pellet felt on the front and lower side of upper abdomen below the left castle margin.
' The doctor opined that injuries 2 and 3 were grievous and dangerous to life. Injury No,1 was simple and caused by fire-arm.
' P.W.16 Dr. Iftikhar Hussain Qureshi on 15-6-1984 at about 4-30 p.m. Conducted autopsy on the dead body of Muhammad All deceased and had found one open operation wound (burst abdomen) 20 c.m. x 6 c.m. Abdominal cavity deep over the front and left side of abdomen. A chestintubation hole 3 c.m. x 2 c.m. On the left side of chest. The doctor had opined that death occurred due to septicemic shock due to the damage to the viscera mentioned under dissection, resulting from injury No,3 of M.L.R. Exh.P.K. And that injury was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was about 47 days while the time between death and post-mortem was 12 to 18 hours. Muhammad All deceased received injuries on 30-4-1984 and succumbed to his injuries on 15-6-1984 in the Nishtar Hospital, Multan. P.W.16 had opined that the death occurred due to septicemic shock due to the damage to the viscera mentioned under dissection resulting from injury No,3 which was sufficient to cause death in the ordinary course of nature. During cross-examination P.W.16 had stated that it was correct when the operation is conducted with sterilyzed instrument an antibiotic is given. The infection can be prevented and he could not state that the pus started in the peritoneal cavity because he only conducted post-mortem examination.
10. No empty was secured from the spot by the police and recovery of gun P.5 and P.1 at the instance of Din Muhammad and Gullan, appellants has no corroborative value in the eye of law.
11. The appellants when examined under section 342, Cr.P.C. Had denied the prosecution case and had stated that they had been falsely involved due to enmity and party faction. The appellants had not made statement on oath as envisaged under section 340(2), Cr.P.C. And produced D.W.1, Rahim Bakhsh in defence, a Mutwalli of Garah Peer shrine, who had stated that he was Mutwalli of Garah Peer shrine and on the fateful day on the report of gun fire, he rushed to the spot and found P.W.6 and Muhammad All deceased in an injured condition and unconscious where certain persons reached excluding Elahi Bakhsh and Ghulam Haider P.Ws. D.W.1 put water in the mouth of the deceased and P.W.6. P.W.6 regained his senses and told that some person fired from behind which resulted injuries to them. The place of occur rence was surrounded by sand dunes and bushes.
Karim Bakhsh etc. Took the injured on the cot from the spot. He also went to make a statement before P.W.18.
11. I have heard learned counsel for the appellants and learned State counsel and perused the record.
12. There is no doubt that there was previous enmity between the parties and the deceased was involved in the murder case of the brother of Kaura, acquitted co-accused and had been enlarged on bail by the Sessions Court. No other P.W. Has corroborated the statement of P.W.6 but due to the presence of enmity and criminal cases between the parties, the motive stands proved even from the statement of P.W.6. The ocular testimony has been furnished on record by the statements of P.Ws.6, 7 and 10. P.W.7 is maternal-cousin of P.W.6. They had no relationship with the deceased. Din Muhammad appellant and Kaura acquitted accused had enmity with the P.Ws. And two criminal cases have been registered inter se i,e. a case was registered against Shabbir and Ghulam Haider P.Ws. On the complaint of Kaura, acquitted co-accused for firing at him whereas a case was registered against the appellants on the complaint of Karim Bakhsh in which Ghulam Haider was also a P.W.
13. The deceased died after 47 days of the receipt of the injuries in the hospital and P.W.16, Dr. Lftikhar Hussain Qureshi, who conducted the autopsy on the dead body of the deceased had opined that the death occurred due to septicemic shock due to the damage to the viscera. The deceased and P.W.6 was at the mercy of the appellants but they had fired one shot each from a long distance and from there the appellants had not repeated the shots. The injuries on the person of the deceased were declared grievous and dangerous to life but the death was due to septicemic shock as stated by P.W.16. P.W.18 had stated during cross-examination that Mehboob- ul-Hassan, D.S.P. Had mentioned in case diary dated 20-8-1984 that he and Younis S.I. P.W. (since dead) had declared Gullan and Kaura, accused as innocent in this case but the Inspector C.I.A.
Staff had found them guilty. The opinion of the Investigating Officer is not binding on the Court.
P.Ws.6, 7 and 10 have specifically named Ghulan alias Gullan accused/appellant as one of the assailants. The deceased had died due to septicemic shock due to damage to the viscera.
14. Pursuant to the above discussion, I am of the considered view that Din Muhammad, appellant was liable for an offence under section 326, P.P.C. And accordingly, I alter his sentence from section 302, P.P.C. To 326, P.P.C. The case of Gullan appellant falls under section 308, P.P.C. And as he had no enmity with the complainant party which has been stated by P.W.6, complainant, Bashir Ahmad that he had no enmity with Ghullan appellant, his sentence also is altered from section 307, P.P.C.
To section 308, P.P.C.
15. Learned counsel for the appellants has prayed for leniency in the sentences. The appellants were arrested on 18-6-1984 and Din Muhammad, appellant is in jail since then. Appellant, Ghullan was released on bail after nine months of his arrest and since his conviction on 8-4-1990, he is in jail i,e. For about three years and in aggregate he has undergone as an untrial convict a period of three years and eight months. Din Muhammad, appellant has undergone as an undertrial and as convict nine years in jail and I am of the considered view that the period already undergone by the appellants shall meet the ends of justice.
16. The fine of Rs,15,000 and Rs,10,000 imposed on appellants Din Muhammad and Ghullan, respectively is reduced to Rs,10,000 and Rs,5,000 each and in default thereof, they shall undergo one year's R.I. Each. The fine if realized from Din Muhammad appellant shall be paid as compensation to the legal heirs of the deceased and fine if realized from Ghullan shall be paid as compensation to Bashir Ahmad injured P.W.6. The appellants are in jail. They shah be released forthwith, if not required in any other case.