SH. M. ZUBAIR, J.-- Sohail Ahmad (26), Muhammad Younas (33), Muhammad Ashraf (55), Muhammad Arshad (30), and Muhammad Riaz (35) were tried under Sections 302/307/34 P.P.C, for the murder of Aziz Ahmad and for launching murderous assault on Manzoor Hussain, Khalid Mehmud and Muhammad Yaqub, by the learned Addl. Sessions Judge, Gujrat who vide his judgment dated 28.5.1990 convicted Sohail Ahmad under Section 302 PPC and sentenced him to death plus a fine of Rs.10,000/-, in default of payment of fine to undergo further S.I for six months. It was ordered that the fine, if recovered, half of it would be paid to the legal heirs of Aziz Ahmad deceased. He was also convicted under Section 307/34 PPC and sentenced to undergo five years R.I. And a fine of Rs. 5,000/-, in default of payment of fine to suffer further S.I. For six months. The fine, if recovered was ordered to be paid to Manzoor Hussain P.W.8 under Section 544-A Cr.P.C. The benefit of Section 382-B Cr.P.C, was extended to him, whereas the other accused were acquitted of the charge. The convict has filed Criminal Appeal No.539/90 whereas the learned Addl. Sessions Judge, Gujrat has sent Murder Reference No.216/90 for confirmation of death sentence under See ion 374 Cr.P.C. The complainant has filed Crl. Revision No.47/92 against the acquittal of the respondents.
As these matters arise out of the same judgment we propose to dispose of the same by this judgment.
2. The occurrence took place on 7.5.1989 at 11.00 a.m. In the area of village Bagrianwala Police Station Dinga District Gujrat and the F.I.R. (Ex.PA/1) was recorded by Muhammad Zaman ASI (P.W.2) on the statement (Ex.PA) of Khalid Mahmood complainant (P.W.7) the same day.
3. As for the main occurrence, it is stated by the complainant in the F.I.R, that he had a grocery shop in village Bagrianwala. On the fateful day, early in the morning his father Manzoor Hussain (P.W.8) opened the shop whereas he along with his brothers namely Aziz Ahmad and Yaqoob (given up P.Ws) went to the shop at about 10 a.m. After Eid-ul-Fitr prayer. At about 11.00 a.m. His father Manzoor Hussain P.W. Along with Aziz Ahmad deceased and Muhammad Yaqoob went towards the shop of Mehdi Jatt in connection with their domestic task. Sohail and Inayat both armed with pistols, Muhammad Riaz, Ashraf and Arshad armed with 7 m.m. Rifles accused who had ambushed themselves, emerged in front of them. Younas accused raised lalkara that Aziz deceased and his father Manzoor the injured P.W. Had arrived, they would not be spared. On this Sohail accused rued with his pistol which hit Aziz Ahmad deceased on the right front side of his chest. Inayat accused fired with his pistol hitting Manzoor Hussain the injured P.W. On the front left side of his chest. Both of them fell on the ground. The complainant, his brother Muhammad Yaqoob (given up P.W.) witnessed the occurrence. Then all the accused while raising lalkaras ran away from the spot. The complainant along with his brother Yaqoob removed the injured to Civil Hospital. Gujrat but while they were on the way to Hospital, Aziz Ahmad succumbed to the injuries.
4. The motive as stated by the complainant in the F.I.R, was that one month prior to the instant occurrence Aziz Ahmad deceased and Sohail, Younas accused had quarrelled, A'ziz Ahmad slapped both-the accused. This incident culminated in the present occurrence.
5. The investigation in this case was conducted by Barkat Ali S.I (P.W.10). On the same day he inspected dead body of Aziz deceased at hospital, prepared injury statement Ex.PK. Then he went to the place of occurrence, inspected the spot and collected blood-stained earth from the place where Manzoor Hussain P.W. And Aziz deceased were injured and took into possession vide recovery memos Ex.P.F and Ex.PG. He recorded the statements of P.Ws under Section 161 Cr.P.C, and also prepared rough site plan (Ex.PL) of the place of occurrence Azmat Hussain Shah constable (P.W.3) produced before him last worn clothes of the deceased i.e. Shalwar PI, shirt P2 and vest P3.
He took the same into possession vide recovery memo Ex.PB/1. On 8.5.1989 Khalid Mahmood (P.W.7) produced before him blood-stained shirt P4 of Manzoor Hussain injured P.W., he took the same into possession vide recovery memo Ex.PH. On 14.5.1989 he arrested Sohail Ahmad, Muhammad Arshad and Muhammad Ashraf accused. On 19.5.1989 he arrested Riaz accused. On 22.5.1989 he arrested Muhammad Younas accused. On 24.5.1989 Sohail accused in police custody got recovered pistol P5 from an almirah of his baithak. He took the same into possession vide recovery memo Ex.PJ and also prepared its rough site plan Ex.PJ/1. After completing all the formalities, the challan was submitted in Court.
6. On 7.5.1989 at 1.25 p.m. Dr. Tahir Rasheed M.O (P.W.5) medically examined Manzoor Hussain the injured P.W. And found following injury on his person:-
1. Firearm wound of entry measuring 1 cm 1 cm x D.N.P on left side of front of chest. 9 cm medial and below to left nipple 6 cm lateral and above to xiphisternum. The margins were inverted and it was circular in shape. The hole in qameez corresponds with the wound. Qameez marked signed and handed over for evidence purpose. Injury was kept under observation and kind of weapon was firearm. Duration of injury was fresh.
On the same day at 6.00 p.m. Dr. Munawar Ahmad M.O (P.W.11) conducted post-mortem examination on the dead body of Aziz Ahmad and he found following injuries on his person:-
1. A firearm wound of entry " cm x " 'cm on the lower side of the chest about 11 cm below obliquely from right nipple.
2. A firearm wound of exit about 2 cm x 2 cm on back of chest on right side laterally to mid line.
In the opinion of doctor all the injuries were ante-mortem and caused by firearm. Death was due to shock and haemorrhage. Injury No.1\ was sufficient to cause death in ordinary course of nature.
Probable time between injuries and death was two to three hours and between death and post- mortem was six to seven hours.
7. The appellant when examined under Section 342 Cr.P.C, denied the prosecution allegations levelled against him and he made following statement:- "I am innocent. The real facts have been distorted by police, and a fake story has been cooked up by the complainant in connivance with the police. The true version of the occurrence is that the deceased, who was a habitual drunkard and a gambler used to extort Jugga Tax from various person. On the day of occurrence Aziz and Yaqoob had both drunk and both of them were armed with 30 bore pistol and they were causing affray and firing in the air with their respective pistols.
Manzoor P.W. After having learnt about the same was coming to the place of occurrence to ask his sons to refrain from their actions Inayat accused who is an army employee also happened to come there and he too, asked the deceased and Yaqoob P.W. Not to indulge in such activities on Eid-ul-Fitr day but Yaqoob P.W. And deceased started abusing him and also started firing at him.
Inayat accused succeeded in snatching away pistol from Yaqoob P.W. But as the deceased had continued firing at Inayat accused who took up the position and he in self-defence of his person fired at both of them resulting in an injury to the deceased. As the firing continued from both the sides, so as a result thereof, Manzoor P.W. Suffered an injury, but from whose firing he was injured is not ascertainable. Khalid P.W. Was not present at the time of occurrence. I and other accused were also not present at the time of occurrence and have been falsely roped in the case."
8. Believing the ocular version furnished by Khalid Mahmood P.W.7 and Manzoor Hussain injured P.W.8 the learned trial Judge convicted the appellant and awarded him the sentence indicated above.
9. In appeal, the learned counsel for the appellant raised the following contentions:-
(i) The eye-witnesses are close relatives of the deceased as one is father, the other is brother of the deceased and testimony of these interested witnesses cannot be accepted unless it stands corroborated in material respects but no corroborative evidence is available on the record. Even the prosecution failed to produce any independent recovery witness in this case because Ghalib Hussain P.W.9, the recovery witness of pistol P5 at the pointation of the appellant is the son of real brother of Manzoor Hussain P.W.8. The motive though alleged yet not proved, which adversely reflects upon the credibility of the prosecution evidence.
(ii) The ocular testimony of the highly interested witnesses also stands contradicted by the medical evidence.
(iii) That F.I.R, was recorded after preliminary investigation, hence no reliance can be placed upon the evidence so collected. The investigation was not carried out honestly and fairly.
(iv) That the prosecution had thrown its net too wide and the learned trial Judge acquitted four co- accused of the appellant on the same evidence thus without any independent corroborative evidence against the appellant, his conviction is bad in law, because possibility cannot be ruled out that he might have been involved in this case without any justification like his acquitted co- accused.
(v) That it is case of two versions, one version has been given by the prosecution and the other version has been advanced by the defence. The learned trial Judge has erred in law by discarding the defence version which is getting ample support from the direct or circumstantial evidence.
10. The learned counsel for tl\e State supported the impugned judgment on the same grounds which prevailed with the learned trial Court while recording the conviction of the appellant.
11. The learned counsel for the complainant who had filed criminal revision against the acquittal of the co-accused did not appear in the Court though his name was duly published in the cause-list.
12. We have gone through the entire record carefully and have also examined critically the respective submissions of the parties.
13. The occurrence took place in the broad day light, the accused being the residents of the locality were known to the eye-witnesses which eliminate the chances of mistaken identification and false implication. Manzoor Hussain is the injured P.W. Whose presence at the spot is even admitted by the defence, hence reliance can safely be placed upon his evidence which gets sufficient corroboration from independent source so far as the part attributed to the appellant is concerned.
The medical evidence corroborates the ocular version. The presence of the complainant at the spot is established, as he lodged the F.I.R, without any loss of lime. There is no background of acrimony except the motive which too was not believed by the learned trial Court. The defence version on the face of it seems to be after-thought, ludicrous and fantastic. Over and above this, it does not get any support from any direct or circumstantial evidence, hence this appeal fails on merit. There is no force in the revision petition which is also dismissed.
14. We have given our anxious thought to this aspect of the case, whether in the present case the extreme penalty of death awarded to the appellant needs any reconsideration especially when the prosecution has though alleged the motive yet failed to prove it. As in the present case immediate cause of death is shrouded in mystery, hence the case for reduction of sentence is made out, so while maintaining the conviction of the appellant under Section 302 PPC we reduce his sentence from death to imprisonment for life but enhance the sentence of fine from Rs. 10,000/-. To Rs.
25,000/-, or in default thereof one year R.I. The sentence of death is not confirmed. The fine, if recovered, shall be paid to the legal heirs of Aziz Ahmad deceased. The sentence recorded against him under Section 307/34 PPC is also maintained. The benefit of Section 382-B Cr.P.C, is extended to him.