' RAJA AFRASIAB KHAN, J.--- Muhammad Shafi (60) son of Said Muhammad and Zulfiqar (32) son of Muhammad Shafi were convicted under section 302/34, P.P.C. For the murder of Muhammad Anwar on 29-11-1990 by the learned Additional Sessions Judge, Sheikhupura. Muhammad Shafi was sentenced to death plus a fine of Rs,10,000 or in default thereof to undergo one year's R.I. Zulfiqar was sentenced to imprisonment for life. He was also sentenced to pay a fine of Rs,10,000 or in default thereof to suffer one year's R.I. It was directed that in case of recovery of fine, half of it shall be paid to the legal heirs of the deceased. Muhammad Youths and Ameer All were, however, acquitted by the learned trial Judge by giving them the benefit of doubt vide the same judgment.
Both the convicts have challenged their conviction and sentences by filing Criminal Appeal No,837 of 1990 before this Court. Murder Reference No,39 of 1991 is also pending for confirmation of death sentence of Muhammad Shafi. Allah Ditta (complainant) has instituted Criminal Revision No,78 of 1991 against the acquittal of Muhammad Younis and Ameer Ali. By this judgment, we will decide the above three matters together.
2. Shortly stated, the facts are that Allah Ditta is an agriculturist. About four years ago, Noor Muhammad, father of Allah Ditta sold a building site measuring 12/13 Marlas to Muhammad Sharif son of Ghehna in the month of December, 1987. Noor Muhammad wanted to construct a wall for the benefit of Muhammad Sharif, the vendee. However, Muhammad Shafi did not allow them to construct the said wall and wanted to occupy the said plot for his own use. Both the parties had thus strained relations because of the said dispute. They fired upon each other on an earlier occasion and as a result thereof they were challaned in a case under section 336/148/149, P.P.C.
Vide F.I.R. No,372/87. The police had also initiated preventive measures against both the parties.
These matters were already pending before the competent Courts. On account of the aforesaid litigation, enmity between the parties increased. About a few days ago, a message was sent by Muhammad Shafi to the complainant party that they should take back the aforesaid plot, otherwise they should be ready to face the dire consequences. Ghulam Haider was helping Muhammad Shall in the above dispute. In fact he did not allow the parties to settle their dispute amicably. On 17-5-1988, Muhammad Aslam son of Abdullah was staying with the complainant party as their guest. Allah Ditta, Ghareeb Alam and Muhammad Anwar were sitting and talking with Muhammad Aslam. At about 5-00 p.m., Allah Ditta, Ghareeb Alam and Muhammad Anwar took their cattle to a watercourse to water them. Muhammad Anwar was ahead of them. He had already reached near the watercourse on the Katcha road. The remaining two brothers were following him. In the meantime, Muhammad Shafi (.12 bore gun), Zulfiqar All (.12 bore gun), Muhammad Youths (.12 bore gun) and Muhammad Ameer (empty-handed) emerged there from the reeds. Muhammad Ameer raised a Lalkara that the complainant party should be caught and done to death. Muhammad Shafi fired which hit Muhammad Anwar on his chest. Second fire made by Zulfiqar Ali also hit him on the chest. Third fire made by Muhammad Younis hit Muhammad Anwar on his right flank. Muhammad Anwar fell down. Zulfiqar Ali went near him and fired which hit his left arm. On an alarm and sound of the fires, Muhammad Aslam came at the spot. All the accused ran away from the spot while firing. The occurrence was witnessed by Allah Ditta, Ghareeb Alam and Muhammad Aslam. Muhammad Anwar died on the spot. The accused committed the murder on instigation of Ghulam Haider. Muhammad Shahbaz was left at the spot to guard the dead body. Allah Ditta went to give information to the police.
3. Muhammad Naseem S.1. (P.W.12) recorded the F.I.R. (Exh.P.E.) on the statement of Allah Ditta. He visited the spot. Injury statement Exh.P.H. And inquest report Exh.P.J. Of Muhammad Anwar deceased were prepared. The dead body was sent to mortuary for post-mortem examination through Inayat All and Rashid Ahmad, Constables. Blood-stained earth from the place of occurrence was collected vide memo. Exh.P.F. Two empties of .12 bore gun were also taken into possession vide memo. Exh.P.G. Last-worn clothes of the deceased Shirt P.1, Chadar P.2, both stained with blood were taken into possession vide memo. Exh.P.C. The accused were arrested by the investigator on 27-5-1988 except Ameer All who was taken into custody on 31-5-1988.
Muhammad Shafi led the police party to the recovery of licensed double-barrel shot-gun P.3 from his house which was taken into possession vide memo. Exh.P.D. The site plan Exh.P.D./1 was prepared. Abdul Rehman Patwari P.W.2 prepared the site plan Exh.P.B. And its duplicate Exh.P.B./1.
Report of the Chemical Examiner Exh.P.L. And that of Serologist Exh.P.L./1 were positive inasmuch as the earth was found to be stained with human blood. The report of the Fire-arm Expert Exh.P.M. Also showed that the crime-empties C.1 and C.2 were fired from the double-barrel .12 bore gun P.3 having been recovered from Muhammad Shafi.
4. Dr. Khalid Yazdani S.M.O., D.H.Q. Hospital, Sheikhupura (P.W.1) conducted the post-mortem examination on the dead body on 18-5-1988 at 10-00 a.m. And found the following injuries:--
(i) An entrance wound 2.5 c.m. x 1.5 c.m. x deep to chest in front of the chest in the middle. The sternum was fractured. The pellet punctured the right lung and was lodged in the skin on the back side.
' An entrance wound .5 c.m. x .5 c.m. x deep on chest at front of left chest below the nipple. The heart was punctured.
' Four entrance wounds in an area measuring 4 c.m. x 3 c.m. On the front of right chest puncturing the lung, liver and right kidney and the pellet was lodged in the skin.
(iv) Lacerated crushed bone 8 c.m. x 8 c.m. On the front of left forearm. Muscles were crushed with tattooing on the edges of the wound.
' On opening the thorax, 5th and 6th ribs of the front of the chest were found fractured. The 5th rib was also fractured on the right lateral side. All the injuries were ante-mortem and were caused with fire-arm. The duration between the injuries and death was within few minutes while duration between death and post-mortem examination was within 24 houRs, In the opinion of the doctor, death occurred because of severe shock. Injuries Nos.1 to 3 were individually and collectively sufficient to cause death in the ordinary course of nature.
5. Eye-witness account was furnished by Allah Ditta P.W.10, a real son of the deceased and Muhammad Aslam P.W.11, his nephew.
' Muhammad Shafi, appellant in his statement under section 342, Cr.P.C. Admitted that he caused the death of Muhammad Anwar in the exercise of the right of self-defence of himself and that of his son Zulfiqar. He disclosed that on 17-5-1988 the cattle of the complainant party had trespassed into his land and as a result thereof there was a quarrel between them and his son Zulfiqar.
Thereafter, Muhammad Anwar (deceased), his father and brother Gharib Alam opened an attack upon Zulfiqar with sticks. At that time, Zulfiqar was carrying a .7 mm rifle. As a result of the Dang blows, the rifle was broken. He stated that he fired twice from his own shotgun which hit the deceased. He stated that he had taken this plea on the very first day when he appeared before the police. He stated that Allah Ditta and Muhammad Aslam P.Ws. Were not present at the time of occurrence. According to him, Muhammad Younis and Ameer Ali, his co-accused, were not present during the occurrence. He took the plea that his son Zulfiqar Ali did not fire at the deceased. To the same effect was the statement of Zulfiqar All under section 342, Cr.P.C. However, no evidence in defence was led by the accused.
6. Malik Saeed Hassan, learned counsel for the appellants contends that this is a case of two versions and that the defence version being more plausible has to be accepted thereby discarding the prosecution story as a whole. He argues that the facts and circumstances of the case would demonstrate beyond any shadow of doubt that it was the complainant party who opened an attack upon the accused party and consequently in the exercise of right of self-defence, Muhammad Shafi fired and killed Muhammad Anwar on the spot.
7. Learned counsel appearing on behalf of the complainant, however, submits that the prosecution version has been proved on reliable evidence and as such was rightly accepted by the learned trial Judge. He also argues that there was absolutely no justification to acquit Muhammad Younis, Ghulam Haider and Ameer All accused by giving them the benefit of doubt.
8. We have heard the learned counsel for the parties at considerable length and have also gone through the entire record carefully. The prosecution story to the extent that Muhammad Anwar was done to death by Muhammad Shall, there was enmity between the parties and the motive to commit the offence were admitted by the learned defence counsel. The prosecution produced Allah Ditta and Muhammad Aslam P.Ws. In support of its story. Allah Ditta P.W.10 states that Muhammad Aslam, Gharib Alam and Muhammad Anwar were taking their cattle to local watercourse to water them. When they reached near the Khaal, Muhammad Shall, Zulfiqar Ali, Muhammad Youths and Muhammad Amir emerged there from the reeds and opened an attack with fire-arms. On the Lalkara of Muhammad Ameer, Muhammad Shall fired which hit Muhammad Anwar on his chest. Zulfiqar All fired the 'second shot which too hit Muhammad Anwar on his chest.
Third fire was made by Muhammad Youths which also hit Muhammad Anwar on his right flank.
Muhammad Anwar fell down. Zulfiqar All again rued from a close range which hit Muhammad Anwar on his left wrist on inner side. This evidence was corroborated by Muhammad Aslam P.W.11.
The learned trial Judge did not believe the prosecution version qua Muhammad Younis, Ghulam Haider and Ameer All and acquitted them by giving them the benefit of doubt.
9. We have been persuaded to believe that there is absolutely no evidence to connect Zulfiqar Ali appellant with the commission of the crime inasmuch as the gun allegedly used by him in the commission of the crime was not recovered from him, The ocular account comes in direct conflict with the medical evidence inasmuch as Dr. Khalid Yazdani P.W.] conceded that injuries Nos.1 to 3 could be possible from one shot. Only two empties were recovered from the spot. The report of the fire-arms expert shows that these empties were fired from the double-barrel shotgun P3 having been recovered from Muhammad Shafi, appellant. This being so, we are not prepared to believe that Zulfiqar All also participated in the commission of the crime. The case of Zulfiqar Ali is not at all distinguishable from that of his acquitted co-accused Muhammad Younis etc. This being so, we feel no hesitation in giving the benefit of doubt to Zulfiqar All appellant as well. The appeal to the extent of Zulfiqar All is hereby accepted. His conviction and sentence are set aside and he is acquitted. He shall be released forthwith provided, of course, he is not needed in some other criminal case.
10. However, the case of Muhammad Shaft, appellant, stands on different footing because he admitted the killing of Muhammad Anwar by firing two shots from his own gun P3 in his statement under section 342, Cr.P.C. His conviction, therefore, under section 302, P.P.C. Was justified. The learned counsel did not frankly challenge his conviction because of his confessional statement.
Even otherwise, the prosecution has succeeded to prove a case of intentional murder against him.
There is no reason to disbelieve the evidence of Allah Ditta and Muhammad Aslam P.Ws. However, on the question of quantum of sentence he submits that in a case like this, the capital punishment is not called for. There is some force in the argument of the learned counsel inasmuch as both the parties did not disclose the whole truth. The enmity between the parties is admitted and they are involved in criminal litigation. It is, therefore, evident that both the parties were in search of each other to finish them. It is not established from the record as to what was the immediate cause for the occurrence. We have therefore, been persuaded to award lesser punishment to Muhammad Shall appellant. In the result, we convert his death sentence to imprisonment for life while maintaining his conviction under the urder charge. The sentence of fine is enhanced to a sum of Rs,1,00,000 (Rupees one lac), which, on recovery, shall be paid to the legal heirs of the deceased.
The death sentence of Muhammad Shaft is NOT confirmed by answering murder reference in the negative. With the above modification the appeal of Muhammad Shafi is partly allowed.
11. There is no evidence to connect Muhammad Younis and Ameer Ali, with the commission of the crime. They were, therefore, rightly acquitted. Accordingly, the criminal revision of the complainant Allah Ditta is hereby dismissed.