JUDGMENT SAJJAD AHMED SIPRA, J.- The present criminal appeal has been directed against the Judgment dated 20.6.1989, whereby the learned Additional Sessions Judge, Faisalabad, while acquitting their co-accused had convicted the appellants under Section 302 PPC and sentenced each of them to life imprisonment with a fine of Rs.5000/- or in default thereof to further undergo R.I. For one year. Each of them was also directed to pay a compensation of Rs. 5000/- to be paid to the legal heirs of Sarwar and Mahand Khan deceased or in default thereof to further undergo R.I for three months.
2. The brief facts leading to the present criminal appeal are that on 9.6.1986 at 1.15 p.m. The complainant Muhammad Hanif PW.7 had lodged the FIR Exh.PH at Police Station Khurrianwala, District Faisalabad, alleging therein that on the same day at about 12.30 p.m. When he, along with Muhammad Aslam, Muhammad Sarwar sons of Hussain Bukhsh, Mahand Khan, his father, and Muhammad Sharif son of Allah Ditta, was going to his house in order to take meals on the day of Eid, from the house of Muhammad Sharif Bawa, and reached near the shop of Abdul Ghafoor, they stunned on seeing Javed son of Ilyas, Khalid Mahmood son of Muhammad Yousaf, Muhammad Nisar son of Muhammad Sharif, Pervez son of Muhammad Ilyas, Muhammad Arif son of Muhammad Yousaf, Muhammad Ali son of Khan Muhammad, Abdul Ghani son of Khan Muhammad, Sarfraz son of Safdar, Abdul Ghani son of Mahand Khan, all armed with guns, and Umar Hayat alias Kala son of Abdul Ghani, armed with 7 M.M. Rifle, present in front of the house of Khalid son of Muhammad YouSaf Rajput. At the same time, Muhammad Ali accused addressed his companions and raised lalkara that chance should not be missed and none out of Mahand Khan and others should be spared, upon which Javed fired at Mahand Khan, father of the complainant, hitting on his head, who fell down. Khalid Mehmood fired at Muhammad Sarwar, hitting on his right shoulder and he also fell down. Afterwards, all the accused started firing. The complainant along with his companions took shelter in the house of Abdul Ghafoor. Both the injured expired at the spot in few minutes.
The motive for the occurrence as stated by the complainant was that his father had enmity with Muhammad Ali accused and different cases of murderous assault were pending between the parties in different Courts. Muhammad Sarwar deceased used to help the complainant party.
Security proceedings were also taken against them but the accused persons did not brother. It was due to that grudge that the accused persons had murdered his father Mahand Khan and Muhammad Sarwar deceased in the prosecution of their unlawful object. The complainant, leaving Ali Abbas son of Muhammad Tufail and Muhammad Sharif son of Sikandar, had reached the police station and reported the matter.
3. On the above report of the complainant, a case under Sections 148 and 302/149 PPC was registered against all the accused, all of them were arrested and after the investigation of the case challan against them was submitted. The learned trial Court charge-sheeted all the accused under Sections 148 and 302 read with Section 149 PPC, to which they did not plead utility and claimed to be tried.
4. At the trial, the prosecution had examined as many as ten witnesses, to prove its case. PW.1 Muhammad Sharif Constable had escorted the dead bodies of Muhammad Sarwar and Mahand Khan deceased to the mortuary on 9.6.1986. After the post mortem examination on 10.6.1986, he obtained the last worn blood stained clothes of Sarwar deceased from the doctor, i.e. Shirt P.1, Shalwar P.2 and a piece of doth (parna) P.3, along with a sealed phial, and produced before the Investigating Officer, which were taken into possession vide memo Exh.PA attested by him. He had also obtained the last worn blood stained clothes of Mahand Khan deceased, shirt P.5, chadar p.6, and a piece of cloth (parna) P.7, along with a sealed phial P.8, from the doctor and produced before the Investigating Officer, which were taken into possession vide memo Exh.PB attested by him. He had also obtained the post mortem reports of both the deceased from the doctor and handed over the same to the Investigating Officer. PW.2 Aurangzeb Draftsman on 11.6.86 had visited the place of occurrence and on 14.6.1986 had prepared the site plan Exh. PC and its duplicate copy Exh.PC/1 and had deposed to that effect.
5. PW.3 Dr. Muhammad Anwar, had conducted the post mortem examination on the dead body of Mahand Khan son of Lal Khan on 10.6.1986 at 7.00 a.m. Which was brought to him by Muhammad Sharif and Jahangir constables and was identified by Ali Abbas and Muhammad Shafi. According to him it was the dead body of a middle aged healthy person aged about 50 years, wearing motia coloured shirt, Shalwar with a white bunyan and a parna. Right eye was closed, left eye and mouth semi closed, post mortem staining was present at dependant parts of the body. Rigor mortis was present all over the body.
1. Fire arm lacerated wound 3/4 cm x 3/4 cm x D.N.P. Right temple and right side fore-head, right cheek and left side neck.
2. Abrasion 2 cm x 3/4 cm right leg front.
3. Abrasion 2 cm x 3/4 cm on the left ankle joint inner side.
4. Abrasion 2 cm x 3/4 cm left leg front.
According to him, there was injury to skull, scalp, membranes and brain as mentioned under injury No. 1. Pellet pierced right temple, right side skull, crossed the brain matter and recovered from inner surface of left side skull. On opening the thorax, every thing was found normal, left side of the heart empty while right chamber contained blood. Stomach contained about 8 ounces of semi-digested food and was normal. Large intestine contained faecal matter. Urinary bladder was full of urine. He had deposed that injury No.1 was sufficient to cause death due to shock and haemorrhage in an ordinary course of nature, caused by fire arm. All the other injuries were caused by blunt weapon.
Time elapsed between the injuries and death was instantaneous and between death and post mortem about 18 to 20 hours. Exh.PD was the correct carbon copy of his post mortem report while Exh.PD/1 was the sketch of injuries.
6. On the same day, PW.3 had conducted the post mortem examination on the dead body of Sarwar deceased at 8.00 a in. Which was also brought to him by Muhammad Sharif and Jahangir constables. It was t he dead body of a healthy young man aged about 35/36 years, wearing shirt, Shalwar, bunyan and a parna.
Mouth and eyes were semi closed. Rigor mortis was present. Post mortem staining at dependant parts of the body was present. He found the following injuries on the dead body:-
1. Fire arm lacerated wound 3/4 cm x 3/4 cm x D.N.P. Front right shoulder injuring upper part of right lung thoracic aorta and the pellet recovered from inner side of left thoracic wall.
In his opinion injury No. 1 was sufficient to cause death due to shock and haemorrhage in an ordinary course of nature. Injury was anti mortem and was caused by fire arm. The time elapsed between injury and death was instantaneous and between death and post mortem about 18 to 20 hours. Exh.PE was the correct carbon copy of the post mortem report and Exh.PE/1 was the sketch of injury. The inquest report of Mahand Khan Exh.PF and the inquest report Exh.PG were also signed by this witness.
7. PW.4 Jahangir Khan constable, on 14.7.1986 after receiving the sealed parcels containing blood stained earth from the Moharrir had deposited the same to the office of Chemical Examiner on the same day. PW.5 Akbar Ali ASI had arrested Abdul Ghani and Parvez Ahmad accused on 21.10.1986.
PW.6 Muhammad Faruq, being Moharrir of the police station concerned had kept the sealed parcels containing blood stained earth in the safe custody of police malikana, and on 14.7.1986 had handed over the said parcels intact to Jahangir Khan constable for onward transmission to the office of Chemical Examiner, Lahore.
8. PW.7 Muhammad Hanif, being the complainant, had reiterated the contents of the FIR. PW.8 Muhammad Aslam, being an eye witness of the occurrence had corroborated the statement of PW.7 in all respects.
9. PW.9 Muhammad Shaft had identified the dead bodies of Mahand' Khan and Muhammad Sarwar deceased at the time of post mortem examination before the Medical Officer. He was also the recovery witness of 12 bore guns P.9, P.10 and P.11, which were recovered from Muhammad Arif, Khalid and Javed accused and were taken into possession vide memo Exh.PK, Exh.PL and Exh.PM respectively, duly attested by him.
10. PW.10 Javed Ali Inspector had recorded the FIR Exh.PH on the dictation of Muhammad Hanif complainant and had conducted the investigation of the instant case.
11. The prosecution had given up Muhammad Sharif alias Bawa and Abdul Ghafoor PWs as having as having been won over and Ali Abbas PW as being unnecessary, and after tendering in evidence the reports of the Chemical Examiner as Exh.PP and Exh.PQ and those of the Serologist as Exh.PR and Exh.PS had closed its case.
12. In their statements recorded under the provisions of Section 342 Cr.P.C, the appellants and their acquitted co-accused had denied the allegations levelled against them pleaded their innocence and contended that they had been falsely implicated in the case due to previous enmity. Khalid Mehmood appellant had further contended that the actual position was that Hanif complainant and his brother Habib started firing first at Muhammad Sharif and his sons who were accused in cross-case registered under Sections 307/148/149 PPC and that both the deceased persons had come within the range of their firing and got hurt and ultimately died. Javed appellant and Muhammad Arif acquitted co-accused had also taken up the same plea. All the other acquitted co-accused had contended that they were not present at the spot and had been falsely implicated due to enmity. They had also deposed that they had been found innocent by the Investigating Officer during the investigation. None of the accused including the appellant, had made statement on Oath. They also did not produce any evidence in their defence.
13. The learned trial Court after taking into consideration all the facts and circumstances of the case and having gone through the evidence on the record, had convicted and sentenced the appellants, while acquitting their co- accused, as stated above, but-refrained from awarding the death sentence on the ground that the motive was not proved.
14. The learned counsel for the appellants and the State were heard at length and the record of the case perused with their assistance.
15. Admittedly it is the case of the prosecution itself that the complainant party was aggressor and had caused injuries to Muhammad Yousaf and Tariq, who are father and brother of Khalid Mahmood appellant respectively. In this respect, it may be pointed out that Muhammad Aslam Pw.8 brother of Sarwar deceased had conceded to that effect during his testimony before the learned trial Court by stating that a cross-case under Sections 307/148/149 PPC had been registered against the given up PW Sharif Bawa and his sons Asghar and Afzal (given up PW) and Akbar and Ghafoor (given up PW). Similarly, it has further come on the record through the testimony of PW.10 Javed Inspector of police that the investigation of the police had come to the conclusion that the firing had been started by the complainant party at first. Therefore, the arguments of the learned counsel for the appellants to the effect that the complainant party being aggressor as established by the evidence on the record prevails and it is hereby held that the case of the appellants is duly covered by Exception 4 to Section 300 PPC, consequently, it is further held that the case of the appellants is duly covered by the provisions of Part 1 of Section 304 PPC and resultantly the change of murder of Sarwar deceased against appellant No. 1 Khalid Mehmood and charge of murder of Mahand Khan deceased against appellant No. 2 Muhammad Javed are hereby converted to culpable homicide not amounting to murder. In this respect, further notice is taken of the fact that according to the prosecution evidence itself, the occurrence had taken place all of a sudden and resulted in free fight, in which both the parties had used fire arms, and the complainant party, being first to do so, was aggressor as noted above. In this respect, the learned counsel further pointed out that the learned trial Court had come to the same conclusion:-that the complainant party was first to open firing as a result of which Muhammad Yousaf and Tariq of the accused party were injured, which had become the immediate cause of occurrence, that had led to the free fight between the parties", as stated above. The learned counsel for the appellants further pointed out that the State had not challenged the said findings of the learned trial Court in any manner whatsoever.
16 Therefore, pursuant to the above discussion, the present criminal appeal is partly allowed and the conviction of the appellants is hereby converted to one under the provisions of Section 304 Part 1 PPC and the sentences awarded to the two appellants are hereby reduced to the period already undergone by them as the appellants have already suffered substantive imprisonment of over 7 years, 8 months and 26 days. The appellants shall be released forthwith, if not required to be detained in any other case.