' RASHID AZIZ KHAN, J.-- Talib Hussain (30) and Munir (20) alongwith Sawalla and Ayyub were sent up for trial by Police Station Nankana Sahib, District Sheikhupura, for an offence under section 302/34, P.P.C. Additional Sessions Judge, Sheikhupura, vide his judgment, dated 21-4-1990 gave benefit of doubt and acquitted Sawalla and Ayyub. Talib Hussain and Munir Ahmad were however, found guilty under section 302/34, P.P.C. For the murder of Nausher, 18/19 years of age, and each of them was sentenced to death with a fine of Rs,8,000, or in default one year's R.I. They were further directed to pay compensation of Rs,10000 each to the legal heirs of the deceased, or in default of payment of compensation six months' R.I. Each. The convicts have appealed. Complainant has also filed a criminal revision challenging the acquittal of Swalla and Ayyub. The matter is also before us for confirmation of death sentence. All these matters shall be disposed of by this judgment.
2. Prosecution story in brief, as given in F.I.R. Exh.P.G. Lodged by Mst. Fateh Bibi, P.W., was to the effect that on 7-4-1988, the first informant with her son Nausher went to Matt Kallian for attending the fair.
On 8-4-1988, the first informant with her son Nausher was going towards the house of her brother Sultan in village Matt Kallian. At about Maghrab prayer time, when they were about a Killa from the Darbar on the road leading to village Matt Kallian, suddenly Talib Hussain, Munir, Ayyub, all armed with guns, and Sawalla, empty-handed, confronted them. Sawalla pushed the first informant, who fell down, and raised a Lalkara that her son Nausher should be killed. Munir fired his gun hitting Nausher' on his left-wrist-joint. Talib fired his gun hitting Nausher on the front of his chest. Ayyub fired hitting in his abdomen, whereupon Nausher fell down and breathed his last. Fire-shots attracted many people, therefore, the assailants ran away. The occurrence was witnessed by first informant Mst. Fateh Bibi, Allah Ditta and Munir son of Ghulam Ali. Motive for the occurrence was that about 4-1/2 years earlier, one Muhammad was murdered, in which Munir son of Nazara was sentenced to imprisonment for life. The complainant side in that case knew that at the instance of first informant's son Zulfiqar, Munir had murdered said Muhammad. For the same reason, the first informant had sold her land and shifted to Begum Kot.
' F.I.R. Exh.P.G. Was lodged by Mst. Fateh Bibi; mother of the deceased, P.W.7, on 8-4-1988 at about 9-30 p.m., which was. Recorded by Amanullah, S.I. P.W.S, with regard to an occurrence which had taken place in the area of village Matt Kallian, 12 miles from Police Station Nankana Sahib.
Amanullah Khan, S.I./S.H.O., P.W.8, after recording F.I.R. Exh.P.G. Went to the spot. He prepared injury statement Exh.P.H. And inquest report Exh.P.I. Of the deceased and sent the dead body for autopsy.
Blood-sained earth was secured from the spot vide memo. Exh.P.B. He arrested Ayyub, Munir and Talib accused on 26-4-1988. On 1-5-1988, Talib appellant while in custody led to his residential house and got recovered single barrel gun P.4, which was secured vide memo. Exh.P.D. On 10-5- 1988, Ayyub, while in custody, from his residential house got recovered gun P.5 vide memo. Exh.P.E.
He got both the recovery memos. Attested from the witnesses. He got site plan Exh.PA. And Exh.PA./1 prepared from Muhammad Hussain, Patwari, P.W., and gave his notes in red ink thereunder. On completion of investigation, he challaned all the accused.
' P.W.5 Dr. Abdul Ghafoor Raza, S.M.O., T.H.Q. Hospital, Nankana Sahib, on 9-4-1988 at 11-30 a.m., conducted the post-mortem examination on the dead body of Nausher, aged 18/19 years, and found the following injuries:--
(1) Lacerated wound about 2-1/2 c.m. x 2-1/2 c.m. On the upper part of the right side chest four in number. The edges of the wounds were inverted. The area covered of the chest was about 12 c.m.
(2) Lacerated wounds about 2-1/2 c.m. x 2-1/2 c.m. Above the injury No,1, two in number.
(3) Lacerated wounds 2-1/2 c.m. x 2-1/2 c.m. Below injury No,1 two in number.
(4) Abrasion 2 c.m. x 2 c.m. Adjacent to injury No,1.
(5) Lacerated wound 8 c.m. x 6 c.m. x bone crushed on the left wrist and part of left hand. The muscles were crushed, vessels were crushed, radius, bone and meta-carpal bones were crushed and missing. The lacerated wound portion was without tissues.
(6) Lacerated wound 3-1/2 c.m. x 3-1/2 c.m. On the outer side of the left side of chest and this was a wound of exit. Post-mortem cuts were made on the left side of the chest and five small pieces of led of bullet erroneously mentioned as pieces of crime M.T. In the post-mortem report were recovered. A second post-mortem cut was made on the front of the chest.
' In his opinion, death had occurred due to the injuries Nos.1, 2, 3 and 5, which were sufficient collectively to cause death in the ordinary course of nature. All the injuries were caused with fire- arm weapon.
3. Prosecution in support of its case had produced eight witnesses in all. P.W.1 Muhammad Hussain, Patwari had prepared site plan Exh.P.A. And P.A./1 on the directions of the police. Muhammad Ali, P.W.2 had witnessed the recovery of blood-stained earth from the spot. P.W.3 Munir Ahmad had witnessed the recovery of guns at the instance of Talib Hussain and Ayyub accused. He attested both the recovery memos. The doctor who had conducted the post-mortem examination has already been discussed. Ocular account was furnished by Allah Ditta and Mst, Fateh Bibi, P.Ws.6 and 7, respectively. The case was investigated by Amanullah Khan, S.I., ' On the conclusion of prosecution evidence, the appellants were examined without oath . Talib Hussain, appellant in answer to a question stated that on the fateful day, the deceased tried to outrage the modesty of his sister Mst. Amina Bibi, therefore, he in self-defence of his sister as well as under grave and sudden provocation fired at the deceased. Munir appellant, however, refuted the prosecution allegations and pleaded innocence. Both the accused did not choose to appear in their defence on oath or produced any defence evidence. Co-accused of the appellants, however, produced Safdar Ali, A.S.I., as D.W.1 who proved that an application for transfer of the investigation was received on 24-4-1988 which was marked to the D.S.P., Nankana Sahib.
4. It was contended by learned counsel for the appellants that the motive in the instant case was not proved at all. Submitted that the motive, if at all, was directed against Zulfiqar to which the deceased had nothing to do. Submitted that admittedly the earlier occurrence took place more than four years ago and during this period no unpleasant incident ever took place, therefore, the present occurrence could not be the result of a incident which took place 4-1/2 years earlier, and that also not directed against the deceased. Argued that in any case, father of Ayyub, co-accused was murdered earlier, which became motive for the present occurrence, but the accused was acquitted by the trial Court, therefore, the case against the appellants also became doubtful because of enmity. Submitted that both the eye-witnesses are interested and inimical, therefore, no reliance on their statements can be placed without corroboration which is not available. The contentions were opposed by learned counsel for the State as well as for the complainant. They stated that the prosecution had been successful in proving its case beyond doubt. It was argued that the eye-witness account was consistent and confidence inspiring which could safely be relied upon.
5. We have heard the learned counsel and gone through the evidence with his assistance.
Prosecution has mainly relied upon the statements of Allah Ditta and Mst. Fateh Bibi, P.Ws.6 and 7, respectively, in whose presence occurrence took place. Both of them gave detailed account of occurrence. They were subjected to lengthy cross-examination but nothing could be brought on record to show that they were false witnesses. As a matter of fact presence of Mst. Fateh Bibi is established from the defence version as well, wherein her presence is not challenged. Even otherwise, we have not been able to find any reason or motive for the false involvement of the appellants. Even otherwise, place of occurrence, manner of occurrence and time of occurrence are not disputed by the defence. The only point on which prosecution version is challenged, is to the effect that Talib appellant had acted under grave and sudden provocation in the defence of his sister. This suggestion was put to Mst. Fateh Bibi, P.W., as well, who replied in the negative by stating that Mst. Amina Bibi, sister of Talib, accused, had given birth to twins two days before the occurrence, and, in such circumstances, she could not have been present at the Mela. The defence has not produced any evidence to substantiate the version of grave and sudden provocation. Allah Ditta, P.W., has given convincing reasons for his presence at the spot, to which no exception can be taken. His mere relationship with the deceased cannot dub him as liar. The eye-witness account is fully corroborated by the medical evidence, according to which the deceased was done to death with fire-arms.
' The contention of the learned counsel for the appellants with regard to the quantum of sentence requires serious consideration. We have noticed that the motive was directed against the deceased. At the time of earlier murder, which took place 4-1/2 years before the present occurrence, the deceased was 12/13 years of age. It was also in evidence that both the sides lived in the village yet no unpleasant incident ever took place. It was established that Zulfiqar, against whom motive was directed, was available, yet no harm was done to him. In these circumstances, we hold that the prosecution has not been able to prove motive beyond doubt.
' For what has been discussed above, we hold that the prosecution has been able to prove its case against the appellants beyond reasonable doubt. The eye-witnesses are truthful and confidence inspiring, therefore, can safely be relied upon. In these circumstances, the appeal is dismissed. The The sentence of death of both the appellants is, however, converted into imprisonment for life for the reasons discussed above. The sentence of fine of both the appellants, or in default thereof, as well as compensation, or the sentence of imprisonment in default of payment of the same, is, however, maintained. The appellants are also given the benefit of section 382-B, Cr.P.C.
As far as the revision of the complainant challenging the acquittal of the respondents is concerned, we do not find any force in it. After going through the judgment of the learned trial Court, we find cogent reasons have been given for their acquittal, to which no exception can be taken. The case of the acquitted accused is certainly not free from doubt, therefore, the revision fails, which is, accordingly, dismissed. Death sentence is not confirmed.