' RAJA AFRASIAB KHAN, J.---The appellants, Muhammad Iqbal (21) son of Muhammad Hussain, Khan Muhammad (35) son of Atta Muhammad and Muhammad Hussain (55) son of Yar Muhammad were tried by the learned Additional Sessions Judge, Mianwali for the murder of Atta Muhammad (28/29). Muhammad Iqbal and Khan Muhammad were convicted under section 302/34, P.P.C. And sentenced to death plus a fine of Rs,10,000 (Rs, ten thousand) each or in default thereof to undergo six months R.I. By the learned Judge on 9-1-1991. Likewise, Muhammad Hussain was convicted under the aforesaid provisions of P.P.C. And sentenced Lo imprisonment for life plus a fine of Rs,10,000 (Rs, ten thousand) failing which he was ordered to undergo six months' R.I. Vide the same judgment. Benefit of section 382-B, Cr.P.C. Was extended to Muhammad Hussain. The convicts have challenged their conviction and sentence by filing Criminal Appeal No,42 of 1991 while the learned Judge has sent Reference No,46 of 1991 for confirmation of death sentence of Muhammad Hussain and Khan Muhammad. The complainant, Ghulam Muhammad has also instituted Criminal Revision No, 173 of 1991 for enhancement of sentence awarded to Muhammad Hussain. We shall decide the above matters together by this judgment.
2. The facts, in brief, are that Ghulam Muhammad (complainant) is a resident of Deh Talokaranwala Dakhli Khangah Sarajia and is a cultivator by profession. His son Atta Muhammad (deceased) had been working as a labourmate in Company No,127. On 15-5-1989 at about Shamwela, Atta Muhammad was coming home on his motor-cycle. When he came near Rajbah Kundian, from where a Katcha Road would lead to the Dera of the complainant, suddenly, Muhammad Hussain, Muhammad Iqbal, both armed with .12 bore guns while Khan Muhammad held a pistol, emerged from the nearby bushes. Khan Muhammad shouted at Atta Muhammad saying that he would not be allowed to go alive. He fired which hit on the right shoulder of Atta Muhammad. Muhammad Hussain and Muhammad Iqbal fired one shot each, which too injured his back. On receipt of the injuries, Atta Muhammad fell down from his motor-cycle. Muhammad Hayat, Sikandar and Fateh Sher, who were coming on the said Katcha Road, saw the occurrence.
The accused, thereafter, fled away with their weapons. The victim died of the injuries there and then.
3. The motive is that Khan Muhammad had a suspicion that the deceased had illicit liaison with Mst. Niaz Bibi, his real sister. She was also ' betrothed with Muhammad Iqbal. She is the niece of accused, Muhammad Hussain. On account of this motive, the three accused hatched a conspiracy and as a result thereof, Atta Muhammad was done to death by them.
4. Muhammad Manzoor S.I. (P.W.12) recorded the F.I.R. (Exh.P.N.) on the statement of Ghulam Muhammad P.W. He rushed to the spot. Injury statement Exh.P.O. And inquest report Exh.P.Q. Of the deceased were prepared by the Sub-Inspector. He collected blood-stained earth from the spot vide memo. Exh.P.G. Two crime empties, Exh.P4/1-2 were recovered by the investigator. He took them into possession vide memo. Exh.P.J. Muhammad Akram Constable produced Shirt P.1, Shalwar P.2 and a pair of Chappal P3/1-2 alongwith a sealed phial, which were taken into possession by the police officer vide memo. Exh.P.Q. On instructions of the Police Officer, Abdul Aziz Patwari (P.W.5) prepared site plan Exh.P.E. And its duplicate Exh.P.E/1 on 17-5-1989. Khan Muhammad and Iqbal were arrested by the police on 26-5-1989. Iqbal while in police custody led to the recovery of gun P.5 from a cluster of acacia trees which was taken into possession vide memo. Exh.PK/1. Khan Muhammad also led to the recovery of Pistol P6 and two live cartridges P7/1-2, which were taken into possession vide memo. Exh.P.L.
5. The report (Exh.P.M.) of the Chemical Examiner was that the earth was stained with blood. The Serologist opined vide Exh,P.S. That the item examined by him was stained with human blood. The Director, Forensic Science Laboratory, Punjab, gave his opinion vide Exh.P.T. That the crime empty marked C-1 was fired from shotgun of .12 bore allegedly recovered from Muhammad Iqbal.
Similarly, Crime-empty, marked C-2 was stated to have been fired from pistol of 12 bore which was stated to have been recovered from Khan Muhammad.
4. Dr. Abu Bakar Siddique, M.O., DHQ Hospital, Mianwali (P.W.6) conducted the post-mortem examination of dead body of Atta Muhammad at 7-00 a.m. On 16-5-1989 and found the following injuries on it:---
(1) An exit wound rounded in shape, 2 c.m. In diameter over the middle of the back of chest 10 c.m.
Below the 7th cervical vertebrae with equal distance from right and left scapula.
(2) An entry wound 3 c.m. In diameter over the left side of the back of the chest 4 c.m. To the left of injury No,1.
(3) An entry wound 3 c.m. In diameter over the back of left side of the chest 7 c.m. To the left of the midline 8 c.m. Below the injury No,2 and 12 c.m. From injury No,1.
(4) An entry wound 3/4 c.m. In diameter over the front of the right shoulder 7 c.m. From the right nipple and 9 c.m. From the top of the right shoulder.
(5) An entry wound 3/4 c.m. In diameter over the anterior aspect of the right upper arm 5 c.m. From injury No,4 and 12 c.m. From the top of shoulder.
(6) An abrasion of 3 c.m. x 1 c.m. Over the front of the left side of the chest 4 c.m. Below the nipple and 8 c.m. From the midline.
(7) An abrasion of 1 c.m. In diameter over the right side of the forehead 1 c.m. To the right of the midline and 2 c.m. Above the right eye-brow.
(8) An irregular shaped abrasion 2 c.m. x 1 c.m. Over bridge of the nose 4 c.m. Above the tip of the nose.
' The doctor opined that death occurred due to haemorrhage and shock as a result of injuries Nos.1 to 3 collectively. According to him, the injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature.
7. Eye-witness account was furnished by Fateh Sher P.W.10 and Muhammad Hayat P.W.11. The appellant Muhammad Iqbal denied the allegations while making his statement under section 342, Cr.P.C. He pleaded his innocence stating that he had been implicated falsely on account of enmity.
Muhammad Hussain also denied the allegations. He deposed that deceased was a vagabond and that he was involved in the abduction case of Mst. Ghulam Sehra wife of Amir. According to the said appellant, he was also challaned in that case. After his acquittal in the abduction case, Atta Muhammad (deceased) and his parents had demanded from him the payment of money which they had spent in the prosecution of the case. On refusal, enmity developed between the parties.
He, therefore, stated that he had been implicated due to abovesaid enmity. To the same effect was the statement of the third appellant, Khan Muhammad. He had also claimed his false implication on account of enmity.
8. Learned trial Judge while believing the prosecution version, convicted and sentenced the appellants in the manner as already mentioned above.
9. It is contended by the learned counsel that there is no evidence to connect the appellants with the commission of the crime. According to him, eye-witness account is belied by the medical evidence. He argues that injuries Nos.2 and 3 may be the result of one shot. Alternatively, it is contended that this is not a fit case for awarding capital punishment. About Muhammad Hussain, appellant, it is submitted that he was found innocent by the S.H.O. And the D.S.P. In their separate investigations. Learned State counsel has, however, defended the impugned judgment of conviction and sentence.
10. We have heard the learned counsel for the parties at some length and have also gone through the whole record with their assistance. Ghulam 'Muhammad (P.W.9) is the first informant. He conveyed the information to the Police Officer after receiving it from Fateh Sher (P.W.10). On the basis of his information, F.I.R. Exh.P.N. Was registered against the accused as detailed above. Fateh Sher deposed that his grandmother was the paternal-aunt of Muhammad Hussain accused and wife of Atta Muhammad (deceased) was his real sister. According to the story, Fateh Sher and Sikandar were going towards their wheat-thrasher while Muhammad Hayat (P.W.11) was going ahead of them. Atta Muhammad (deceased) was returning home on his motor-cycle. The witness testified that Khan Muhammad while holding .12 bore pistol shouted at Atta Muhammad and fired which injured his right shoulder. Muhammad Hussain and Iqbal also came out from behind the bushes and fired one shot each which hit the back of the victim. The victim fell down from his motor-cycle. Falak Sher P.W. Was materially corroborated by Muhammad Hayat P.W.11. The evidence of these witnesses, undoubtedly, inspires confidence and as such we are inclined to rely on it. This evidence has also been found in line with the evidence of Dr. Abu Bakar Siddique P.W.6.
The report of the Director, Forensic Science Laboratory, proves that the two crime empties recovered from the spot marked Cl and C2 matched with the .12 bore shotgun and .12 bore pistol proved to have been recovered at the instance of Muhammad Iqbal and Khan Muhammad, appellants. In this view of the matter, the testimony of Fateh Sher and Muhammad Hayat P.Ws. Was further corroborated by the recovery of said weapons and the report of Director, Forensic Science Laboratory. The charge of murder against Muhammad Iqbal and Khan Muhammad is, therefore, proved beyond any shadow of doubt on the basis of abovesaid overwhelming evidence. The conviction already recorded against them is, thus, maintained. However, on the question of quantum of sentence, we hold that this may not be a fit case for capital punishment because Khan Muhammad, convict suspected that his, sister Mst. Niaz Bibi had developed illicit liaison with Attaa Muhammad deceased. The girl was, also engaged with Muhammad Iqbal. It is, therefore, evident that, due to family honour, Atta Muhammad was done to death by the accused-appellants. In the peculiar circumstances, the death sentence of Khan Muhammad and Muhammad Iqbal is altered to imprisonment for life. The sentence of fine shall be maintained.
' The case of Muhammad Hussain, nonetheless, stands on a different footing because he was found innocent by the S.H.O. And the D.S.P. In their intensive investigations. It was mentioned by Muhammad Manzoor S.H.O. P.W.12 that as many as 57 people of the village appeared before him to testify that he was innocent and that he was not present during the incident. The nature and dimension of injuries Nos.2 and 3 would demonstrate that they were the result of one fire which was proved to have been attributed to Muhammad Iqbal. As already mentioned, only two crime empties were recovered which as per report of the expert matched with the weapons having been recovered from Muhammad Iqbal and Khan Muhammad, appellants. Accordingly, there is not an iota of evidence to connect Muhammad Hussain with the murder of Atta Muhammad. The medical evidence and that of the Fire-arm Expert did not provide corroboration to connect him with other appellants to murder Atta Muhammad. This being so, it is, undoubtedly, a case of grave doubt. By giving the benefit of doubt, Muhammad Hussain, appellant is hereby acquitted of the charge of murder. He shall be released forthwith provided of course, he is not needed in some other criminal case. The appeal to the extent of Muhammad Hussain is hereby accepted. In view of the above, the criminal revision is dismissed.