' KHALIL-UR-REHMAN RAMDAY, J.--- Mushtaq Ahmad, his brother Altaf Ahmad, their Mamoon Zaad Khurshid, a son of Khurshid, namely, Sajid and a Mamoon of Khurshid, namely, Ameer, had been tried by a learned Additional Sessions Judge of Mianwali for the murder of Hidayatullah.
2. Through a judgment dated 25-2-1990 of the said learned Court, Khurshid, Ameer and Sajid were acquitted of the charge whereas Mushtaq and Altaf were found guilty of the same and having been convicted under section 302/34, P.P.C., Mushtaq was punished with death while Altaf was sentenced to imprisonment for life. Each one of them was further directed to pay a fine of Rs,5,000 or to suffer two years' R.I. In default of payment of the same. Half of the amount of fine was ordered to be paid to the heirs of the deceased.
3. Murder Reference No,88 of 1990 seeks confirmation of the said sentence of death. Criminal Appeal No,191 of 1990 has been filed by Mushtaq and Altaf convicts to impugn the above-noticed convictions and sentences. Criminal Revision No,272 of 1990 has been filed by the complainant to call in question the acquittal of Khurshid, Ameer and Sajid accused. All these matters are being disposed of together through this single judgment.
4. The occurrence in question had taken place on 19-4-1987 at about 2-00 p.m. In the fields of Khaliq Dad complainant in village Muddat Wala, 12 miles from Police Station Moch of District Mianwali. The same had been reported to Habibullah A.S.I. (P.W.13) at Pai Khel Police Picket by Khaliq Dad complainant at about 9-00 p.m.
5. The complainant had informed the said police officer that he was a resident of Muddat Wala; that in the morning of the day of occurrence he went to his lands alongwith Hidayatullah deceased and Ziaullah, who is a brother of the said deceased, on their tractor, in order to prepare the said land for cultivation; that after reaching the said land they were joined by Alam Khan P.W. Who was a paternal-uncle of Hidayatullah deceased; that all of them started working in the said land and at about 2-00 p.m. Hidayatullah deceased went and sat under a tree; that in the meantime, Mushtaq and Altaf appellants armed with rifles and Sajid accused armed with a .12 bore gun emerged there; that Mushtaq appellant then fired a shot with his rifle hitting the deceased on the back of his right chest; that Altaf appellant followed suite whose fire hit the left knee of the deceased; that Sajid then fired a shot with his gun and that thereafter all the three left the place of occurrence.
6. The complainant had further reported that it was Ameer Khan and Khurshid Khan accused who had conspired the murder in question and at whose instance the same had been committed.
7. He had further disclosed that the complainant party were involved in a long-standing land dispute with Mushtaq appellant and others. He had added that on account of this very dispute the father of Hidayatullah deceased had earlier injured Khurshid accused and that it was on account of this grievance that the assailants had done the deceased to death.
8. Mushtaq appellant had been arrested on 12-6-1987 whereafter he had led to the recovery of his rifle P.4 vide memo. Exh.P.F. The remaining accused persons including Altaf appellant had been arrested on 266-1987 but no recovery of any weapon of offence had been effected from any of these accused persons.
9. When confronted with the prosecution case under section 342, Cr.P.C., the appellants and their co-accused had denied their participation in the occurrence in question and had attributed their involvement to enmity and suspicion. They did not elect to make statements on oath but produced Muhammad Nawaz Khan, D.S.P. As D.W.1 to state that according to his investigation, Altaf Khan was not present at the place of occurrence at the relevant time and further that Sajid accused, though present at the place of occurrence at the said time, had not fired any shot from his gun.
10. Canvassing acquittal for the two appellants, their learned counsel argued that there was a delay of about seven hours in the lodging of the F.I.R.; that the prosecution had failed to prove the alleged motive as being the cause of the occurrence in question; that all the three witnesses were closely related to the deceased and were inimical towards the appellant party; that in any case the medical evidence ruled out the possibility of a fire-arm injury at the hands of Altaf appellant and that, in the circumstances, the two appellants were entitled to an acquittal or at least the participation of Altaf appellant in the occurrence in question was not free from doubt.
11. Khaliq Dad complainant is Chachazad of the deceased while Ziaullah (P.W.10) is a brother of the deceased and Alam Khan (P.W.11) is his paternal-uncle. This close relationship of the three eye- witnesses with the deceased is not denied and stands accepted and proved on record. However, the claim that they are inimical witnesses is not borne out from the evidence. It is true that the appellants party and the complainant party were co-sharers in a piece of land which was jointly owned by them and it has also come on record that a dispute did exist between these parties but the same was only with regard to the partitioning of the said land. It is, however, noticeable that there was no claim from either side that there was any dispute about the possession of the land in question on the part of any sharer of the said land. It is also evident from the evidence that even on the day of occurrence no quarrel had taken place between the parties regarding the possession of the said land and there is no allegation from either side that one party had tried to take forcible possession of the same and the other party had tried to resist such an attempt. No litigation was ever commenced and thus never existed between the parties in respect of the ownership of the land or the possession thereof. It stands proved on record, as an admitted fact that though two incidents had taken place between the parties in the past about the land in question but both these criminal cases had ultimately ended in a compromise, in pursuance of which compromise, inter-marriages had taken place between the parties. No fight or any such incident ever took place between the parties after these compromises and after the marriages in pursuance of these compromises. It is in fact on record that the parties were on visiting terms with each other prior to the occurrence.
12. In the circumstances, it cannot be said that any enmity of the kind existed between the parties which could have led the complainant party to maliciously implicate the appellants in the occurrence in question or to falsely substitute them for the actual offenders. Needless to mention here that the occurrence in question was an occurrence which had taken place in a broad daylight and which could not have gone unwitnessed and the culprits whereof could not have escaped unidentified. It is true that the places of residence of the three eye-witnesses are located at an appreciable distance from the place of occurrence but it is not denied that all three of them were co-sharers of the land where the occurrence in question had taken place and their presence at the place of occurrence thus is not open to any serious exception.
13. We are thus of the view that the ocular testimony offered by the prosecution is independent and reliable.
14. The F.I.R. Had been recorded after about seven hours of the occurrence in question but this delay stands sufficiently explained on record when it was claimed that the police station is across the Indus River from the place of occurrence and it was on account of the river being in spate that the complainant had to take a longish detour to reach the police station to inform them of the said occurrence.
15. The learned counsel for the appellants took exception to the injury caused around the left knee of the deceased and relying upon it being exit wound, submitted that the wound of exit was 1/2 c.m. x 1/2 c.m. Which was much less than the wound of entry which was 3/4 c.m. x 3/4 c.m. And was thus an injury which was of a doubtful character. He had further submitted that this injury did not appear to be a fire-arm injury as no bone etc. Had been damaged on account of this wound.
16. We have examined the original record. The dimensions of wound No,4 as appearing in the statement of Dr. Aaal-e-Rasool (P.W.4) are in fact 1-1/2 c.m. x 1-1/2 c.m. And not 1/2 c.m. x 1/2 c.m. As printed in the paper book. This is a typographical mistake. Thus in view of the dimension of the said injury as appearing in the original record, the submission of the learned counsel above-noticed loses its significance. It is not a rule that every fire-arm injury must damage the bones around the place of injury. The possibility of the projectile entering the fleshy part of the area and exiting from the fleshy part on the other side cannot be ruled out and, therefore, the above objection of the learned counsel to this effect is not relevant.
17. Having thus examined the entire evidence available on record we are of the opinion that no exception can be taken to the conviction of the two appellants as recorded by the learned trial Court and we hold accordingly.
18. However, the conviction and the sentence of death awarded to Mushtaq appellant has engaged our attention.
19. As has been noticed above, the reason offered by the complainant party as the motive for the occurrence in question is not a kind of justification which could have led to the murder of the deceased. Something more must have transpired which had resulted in the killing of Hidayatullah deceased which, however, is shrouded in mystery.
20. We, therefore, do not feel persuaded to confirm the said sentence of death. Consequently, the sentence of death imposed on Mushtaq appellant is NOT CONFIRMED and he is instead directed to suffer imprisonment for life under section 302/34, P.P.C. It is further directed that both the convicts shall be allowed the benefit of the provisions of section 382-B, Cr.P.C. And the entire amount of fine, if realised from the convicts, shall be paid to the heirs of the deceased.
21. Subject to this modification in the quantum of sentence deserved by Mushtaq appellant and our direction regarding the payment of the amount of fine, Criminal Appeal No,191 of 1990 is dismissed and in the same terms is answered Murder Reference No,88 of 1990.
22. We have not been impressed with the veracity of the evidence offered by the prosecution to prove the conspiracy on the part of Khurshid and Ameer appellants. Similar is the value of the prosecution case against Sajid accused who was alleged to have fired a shot at the deceased but no injury was found on the person of the deceased which could be connected to the said fire.
23. Therefore, we refuse to interfere with the acquittal of the said three accused persons, namely, Khurshid, Ameer Khan and Sajidullah as recorded by the learned trial Court. Criminal Revision No,272 of 1990 is dismissed.
24. It may be mentioned here that despite his name having appeared in the cause list, the learned counsel for the complainant/ revision petitioner did not enter appearance. We have decided the Criminal Revision in the absence of the learned counsel after having ourselves examined the matter and having satisfied ourselves with the correctness of the finding of the learned trial Court regarding the acquittal of the three accused persons in question.
DEATH SENTENCE NOT CONFIRMED.