' RAJA AFRASIAB KHAN, J.--- Nazar Hussain alias Najja (28) and his brother Maqbool Hussain (40) sons of Suba were convicted under section 302/34, P.P.0 by the learned Additional Sessions Judge, Sheikhupura, on 20-6-1988 Nazar Hussain was sentenced to death and a fine of Rs,10,000 or in default thereof to undergo one year's rigorous imprisonment. It was directed that in case of recovery of fine, it shall be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
' Maqbool Hussain was sentenced to imprisonment for life plus a fine of Rs,5,000 or in default thereof to suffer further R.I. For one year. In case of recovery of fine, it was ordered to be paid to the legal heirs of the deceased as compensation. The learned trial Judge, however, acquitted Arif Hussain (22), and Riaz Hussain alias Kaka (22) vide the same judgment. The convict-appellants have filed Criminal Appeal No,677 of 1988 jointly against their conviction and sentence while Criminal Revision No,581 of 1988 was filed by the complainant for enhancement of the sentence of Maqbool Hussain and also against the acquittal of Riaz Hussain and Arif Hussain, co-accused.
Reference No,172 of 1988 has been sent by the learned trial Judge to this Court for confirmation of the death sentence of Nazar Hussain. We propose to dispose of all these matters together as they arise out of the same judgment.
2. Shortly narrated, the facts are that Shaukat Ali (30/32) son of Raheem-ud-Din is an agriculturist.
He purchased a piece of agricultural land from Latif Rajput and Mehr Gujjar about 2-1/2/3 years ago for valuable consideration. Noor Muhammad, his brother, had died. Shaukat Ali and his brother Ilam-ud-Din (deceased) had installed a tube-well for the irrigation of the aforesaid land. Shaftal fodder was sown by the complainant in about two killas of his land. Nazar Hussain, Maqbool Hussain, Arif Hussain and Riaz Hussain alias Kaka sons of Suba had kept a mare which used to damage the fodder crop of the complainant. Nazar Hussain was asked on number of occasions to keep away his mare so that it might not damage their crop. He, however, did not care to act upon the advice of the complainant. About a week ago, mare of Nazar Hussain again went to the fields of complainant party and damaged their crop. The animal was made to run away by Ilam-ud-Din (deceased) from the fields by throwing stones at it. On this, Nazar Hussain abused Ilam-ud-Din.
They also exchanged fist blows with each other. On hearing the noise, Sadiq son of Hakim Ali Gujjar reached the spot and was able to separate them. Nazar Hussain while leaving the spot issued serious threats that he would take revenge of his insult and that nobody should dare to disturb his mare from grazing in the fields. On 6-6-1987 at about noon time, Shaukat Ali, Ilam-ud-Din, Younis and Musa were present at their tube-well and were smoking Huqqa. The mare of the appellants again came to the Shaftal field of the complainant party. Ilam-ud-Din (deceased) was asked to expel the animal. Accordingly, he went and started throwing pebbles at the animal for warding it off. In the meantime, Nazar Hussain armed with .12 bore gun, Maqbool Hussain armed with .7 mm Rifle, Arif and Riaz alias Kaka holding Sotas, reached the spote while hurling abuses upon the complainant party. On hearing the noise, Younis and Musa became attentive towards them.
Maqbool Hussain fired with his .7 mm Rifle at Ilam-ud-Din which did not hit him. Riaz alias Kaka shouted by saying that Ilam-ud-Din had escaped and that he had to be killed. Thereupon Nazar Hussain fired from his .12 bore gun which hit the right thigh of Ilam-ud-Din. Ilam-ud-Din fell down in the Shaftal crop. The accused ran away while shouting with their weapons. Ilam-ud-Din died on the spot. Younis and Musa were left behind to guard the dead body. The complainant Shaukat Ali alongwith Sadiq went to the Police Station for lodging the F.I.R.
' On the statement of Shaukat Ali, Muhammad Nasim Khan S.I. Recorded the F.I.R. (Exh.P.E.) at the police station.
3. After recording the F.I.R., Muhammad Naseem Khan S.I. Alongwith Irshad Baig A.S.I., Faqir Hussain, Muhammad Yousaf, Lal Din and Muhammad Jamil Constables reached the place of occurrence.
Inquest Report (Exh.P.J.) and Injury Statement (Exh.P.L.) of the dead body were prepared by him. The dead body was sent to mortuary for conducting post-mortem examination on it through Jamil and Faqir Hussain Constables. Blood-stained earth was collected and sealed into a parcel vide memo.
Exh.P.F. Which was attested by Muhammad Younis and Musa P.Ws. An empty-cartridge P.5 was taken into possession vide memo. Exh.P.G. This recovery was also attested by the above- mentioned two witnesses. Rough site plan was prepared by the Police Officer vide Exh.P.L. He recorded the statements of the witnesses under section 161, Cr.P.C. On 7-6-1987 last-worn clothes of the deceased Qameez P.1, Chaddar P.2 were produced by Jamil Ahmad Constable and were taken into possession vide memo. Exh.P.B. Nazar Hussain was arrested by the investigator on 15-6- 1987. Similarly, Maqbool Hussain was arrested by him on 16-6-1987. Nazar Hussain while in police custody led to the recovery of .12 bore gun P.3 from his Dera which was kept by him in a heap of chaff. The weapon was taken into possession vide memo. Exh.P.C. The recovery was attested by Qaim Din and Abdul Sattar P.Ws. Likewise, Maqbool Hussain while in police custody got recovered .7 mm rifle P.4, which was concealed by him in a Paiti in his house. It was taken into possession vide memo. Exh.P.D. This recovery was also attested by the same set of witnesses. Site plan Exh.PA. And its duplicate Exh.PA./1 were got prepared by the investigator from Mumtaz Hussain Patwari (P.W.2).
' Report of the Chemical Examiner Exh.P.M. Dated 15-6-1987 on earth and that of Serologist Exh.P.N.
Dated 7-10-1987 regarding the said articles were positive inasmuch as it was opined by the expert that the earth was stained with human blood.
' Report of the Director Forensic Science Laboratory Exh.P.O. Dated 13-9-1987 disclosed as follows:-- "The crime-empty of .12 bore marked as was examined and compared with the test empties prepared from the SBBL shotgun of .12 bore (No,7043) butt signed and it was found that the crime empty of .12 bore marked as C was fired from the SBBL shotgun of .12 bore in question."
' Similarly, the report of the Director Forensic Science Laboratory Exh.P.P. Dated 21-10-1987 on another weapon was to the following effect:- ' The rifle .7 mm bore (No,5150) butt signed is in working order in its present condition.
(2) No foulings were recovered from the barrel of the rifle of .7 mm bore (No,5150) butt signed, hence nothing can be said as to when it was last fired."
4. Dr. Khalid Yazdani, C.M.O., District Headquarters Hospital, Sheikhupura P.W.12 conducted the post- mortem examination upon Ilam-udDin on 7-6-1987 at 9 a.m. And found the following injury:- "8 fire-arm entrance wounds in an area of 8 c.m. x 6 c.m. Each wound 0.5 x 0.5 c.m. x deep to thigh on the inner and front of upper part of right thigh making the 8 exit wounds in an area 10 c.m. x 8 c.m. On the back of right thigh. Each wound was 0.5 c.m. x 0.5 c.m. Tatooing were present on the entrance wounds."
' The injury was opined to be ante-mortem. It was caused by a fire-arm. According to the Doctor, the death occurred due to severe shock and haemorrhage. The injury was sufficient to cause death in the ordinary course of nature.. Probable time between injury and death was within few minutes. The time between death and post-mortem examination was between 20 and 21 hours.
5. Eye-witness account was furnished by Shaukat Ali P.W.7 and Muhammad Younis P.W.8. Nazar Hussain appellant while making a statement under section 342, Cr.P.C. Denied the allegations levelled against him. He stated that he was innocent. Similar statement was made by Maqbool Hussain the second appellant. However, no evidence was produced by the appellants in their defence.
6. Learned counsel contends with vehemence that the prosecution has failed to prove its case beyond reasonable doubt against the appellants inasmuch as the facts and circumstances of the case demonstrate that it was an unwitnessed occurrence. Learned counsel argues that there is no material available on record to show that the appellants intended to make a short work of Ilam- ud-Din. He urges that the first appellant did not hit at the vital part of the deceased. According to the learned counsel, death of Ilam-ud-Din occurred on account of excessive bleeding and lack of effective treatment having been given to him immediately after the incident. The learned counsel heavily relies upon the medical evidence in support of his plea. Learned counsel maintains that there was no evidence to prove the motive as alleged in the F.I.R. Recovery of the crime-empties and the weapons was also challenged by the learned counsel. The learned State counsel and the learned counsel for the complainant supported the conviction and sentence of the appellants by adopting the reasons given by the learned trial Judge in his judgment.
7. We have heard the learned counsel for the parties at considerable length and have also gone through the entire record carefully. In our view, the prosecution succeeded to prove its case beyond reasonable doubt to the extent of appellant Nazar Hussain. Shaukat Ali has fully supported the prosecution version. He is also a witness of motive. He disclosed that the mare of the accused damaged the fodder crop of the complainant party on the day of occurrence. Ilam-ud-Din (deceased) went to the spot to ward off the mare. Nazar Hussain appellant quarrelled with him and there was an exchange of abuses between them. However, the parties were separated and the matter was patched up temporarily. According to the witness, on the day of occurrence, he was sitting at the tube-well and was enjoying Huqqa alongwith Ilam-ud-Din and Younis. The witness continued to depose that the mare of the appellant once again damaged the crop whereupon there was a quarrel having taken place between Ilam-ud-Din and Nazar Hussain on the spot. In the meantime, Maqbool Hussain fired from his 7 mm Rifle aiming at Ilam-ud-Din but the shot missed the target. Thereafter, the acquitted accused Riaz and Arif exhorted Nazar Hussain to fire at Ilam-ud-Din to kill him. On this, Nazar Hussain fired from a very close range which hit Ilam- ud-Din. On receipt of the injury, he died on the spot. This deposition of Shaukat All P.W.7 was materially supported by,Muhammad Younis P.W.B. The villagers do work in their fields during day time. The presence of eye-witnesses at the spot, therefore, was nothing but natural. On the basis of overwhelming evidence, we have been persuaded to believe that the witnesses were present at the spot and witnessed the occurrence. The occurrence was immediately reported to the police.
The medical evidence also lends considerable corroboration to the ocular account inasmuch as it disclosed that the thigh part of the body of Ilam-ud-Din (deceased) was injured. The crime empty P.5 was also found wedded with the .12 bore gun having been recovered at the instance of the appellant Nazar Hussain. The matching of crime-empty with the gun of Nazar Hussain, appellant, would further corroborate the prosecution case. We do not find any force in the argument of the learned counsel that the witnesses were not present and as such we repeal it. The witnesses were subjected to the test of cross-examination. However, they remained consistent and unshaken throughout. In this view of the matter, we uphold the conviction of Nazar Hussain appellant under section 302, P.P.C. We are, however, not prepared to confirm his death sentence because in our view, probably the occurrence had e taken place at the spur of moment on the damage done to the crop by the mare of the appellant. There is also no evidence to show that there existed previous enmity between the parties. This is also not the case of the prosecution that it was the complainant himself who filed the suit for pre-emption against the accused. Their case was that they instigated the plaintiff to file the pre-emption suit against the appellants about the land in question. This is a case of single shot having been fired upon the non-vital part of the deceased from a very close range. The fire was not repeated and no attempt was made to reload the gun. All these facts and circumstances taken together would persuade us not to award capital punishment to Nazar Hussain, appellant. In this view of the matter, the death sentence of the appellant, Nazar Hussain alias Najja is not confirmed. His sentence is altered from death to imprisonment for life. However, in our view the amount of fine was grossly inadequate. Accordingly, we increase the amount of fine from Rs,10,000 to Rs,1,00,000. In case of default in payment thereof, he shall undergo a further term of imprisonment for two years. In case, the fine amount is recovered, the whole of it shall be paid as compensation to the legal heirs of the deceased Ilam-ud-Din.
8. The case of Maqbool Hussain appellant, however, stands on a different footing. Shaukat All P.W.7 and Muhammad Younis P.W.8 deposed that he fired at Ilam-ud-Din which did not hit him.
According to the report Exh.P.H of the Director, Forensic Science Laboratory, no foulings were found from the barrel of the Rifle and as such no opinion could be given by him as to E when it was last fired. The case of the prosecution was that Ilam-ud-Din died on account of single fire having been made by Nazar Hussain The medical evidence also showed that there was only one fire-arm injury on person of Ilam-ud-Din (deceased). The case against Maqbool Hussain, appellant, is thus not free from doubt. Arif and Riaz were acquitted by the trial Court giving them the benefit of doubt on the basis of same evidence. In our opinion he is also entitled to the benefit of doubt. Accordingly, we acquit him. His conviction and sentence is set aside. With the above modification in the sentence of Nazar Hussain, appellant, Criminal Appeal No,677 of 1988 is partly allowed. The Murder Reference No,172 of 1988 is answered in the negative. There is no substance in Criminal Revision No,581 of 1988 which is dismissed for the aforesaid reasons.