' M. JAVED BUTTAR, J.---The appellants, Muhammad Hussain (40) and Muhammad Mumtaz (20) were reported against for the murder of Noor Muhammad (25) and murderous assault upon Ahmad injured P.W.7. Learned Sessions Judge, Jhang vide his judgment, dated 10-7-1993 found both the appellants guilty on two counts each. Learned Trial Court while convicting Muhammad Hussain and Muhammad Mumtaz appellants under section 302/34, P.P.C. For the murder of Noor Muhammad deceased, sentenced them to death and imprisonment for life respectively with a fine of Rs,10,000 each or in default to two years' R.I. Each in addition to the payment of compensation to the tune of Rs,20,000 each to be paid to the legal heirs of the deceased or in default to undergo R.I.
For six months each. Both the appellants were further convicted and sentenced under section 324/34, P.P.C., for committing murderous assault upon Ahmad P.W.7, to imprisonment for five years'
R.I. Each with a fine of Rs,10,000 each or in default to serve two years' R.I. Each in addition to the payment of Rs,10,000 each as compensation to be paid to the injured P.W.7 or in default to undergo further R.I. For six months each.
2. The appellants have filed Criminal Appeal No,304 of 1995 challenging the legality of their conviction and sentences. Learned trial Court has sought confirmation of death sentence awarded to Muhammad Hussain appellant through Murder Reference No,277 of 1993. Both these matters are being disposed of through this judgment.
3. A case F.I.R. No,277 (Exh.P.B./1) was registered on 3-9-1992 at 1-15 a.m. On the statement (Exh.P.B.) of P.W.6 Ghulam, uncle of the deceased, recorded by Aman Ullah, S.-I. P.W.11 at 1-00 a.m. At Civil Hospital, Shorkot, District Jhang.
4. The prosecution case as narrated in the F.I.R. Is that the complainant was resident of Kot Lal and a cultivator by profession. On 2-9-1992, 'the complainant alongwith Noor Muhammad (deceased), Ahmad injured P.W.7 and Walidad (given up) was returning to their house during night after spraying the cotton crop of Sikandar son of Muhammad. At about 9-30 p.m. When they reached near the Bhaini of Ghtilam Gadhi, appellants Muhammad Hussain armed with .12 bore gun and Mumtaz Hussain equipped with Sota, who were sitting in ambush near the Khal, raised exhortation that they had already asked them many times not to pass from that side. In the meantime, Mumtaz Hussain appellant switched on the torch light and Muhammad Hussain fired two shots from his gun which landed on chest, abdomen and other parts of the body of Noor Muhammad (deceased) and Ahmad also sustained injuries on left arm and left hand. Both of them fell on the ground. Then Mumtaz Hussain appellant inflicted Sota blows on right cheek and nose of Ahmad P.W.7. The complainant had also switched on his torch and in the light he and Walidad witnessed the occurrence, but, due to fear, they raised hue and cry while standing at some distance. After the occurrence, the assailants raising Lalkaras decamped from the scene. While both the injured were being shifted to Civil Hospital, Shorkot for medical aid, Noor Muhammad succumbed to the injuries.
As to the motive, it was alleged that the accused suspected that Noor Muhammad was having illicit liaison with their sister and due to that grudge, both the appellants in the furtherance of their common intention, killed Noor Muhammad deceased and inflicted injuries to Ahmad. Leaving Walidad for the supervision of the dead body of deceased at Civil Hospital the complainant was going to Police Station, Shorkot when on the way he met Aman Ullah, Sub-Inspector. He, requested that action be taken.
5. Aman Ullah, S.-I. Police Post Waryam, after recording the complaint (Exh.P.B.) on the statement of Ghulam P.W.6 went to Civil Hospital, Shorkot; forwarded the complaint (Exh.P.B.) to the Police Station Shorkot for formal registration of F.I.R. Through Haseeb Ahmad; prepared injury statement Exh.P.K.
And inquest report Exh.P.L. Of the dead body of the deceased; despatched the dead body to mortuary for autopsy under the escort of Muhammad Bashir Constable, who later on produced before him last-worn blood-stained clothes of the deceased shirt P.1, Shalwar P.2 and a sealed phial containing pellets which were secured vide memo. Exh.P.A. Then he visited the place of occurrence; inspected the spot and prepared site inspection note; deputed Muhammad Ameer Head Constable to keep a guard at the place of occurrence; secured the blood-stained earth from the place where Noor Muhammad was murdered and made the same into a sealed parcel vide memo. Exh.P.C., he also secured the blood-stained earth from the place where Ahmad P.W. Was injured and made the same into a sealed parcel vide memo. Exh.P.D.; Ghulam complainant P.W.6 produced .Before him torch P.3 at the place of occurrence which was secured vide memo. Exh.P.E.; handed over the parcels and torch to Moharrir; on the same day i,e, 3-9-1992, he returned to T.H.Q.
Hospital, Shorkot where Ahmad was lying injured; recorded his statement under section 161, Cr.P.C.
Who also produced before him copy of the M.L.R. Exh.P.N., on 10-9-1992, arrested both the appellants, recovered Sota P.7 and torch P.8 at the pointation of Muhammad Mumtaz appellant from his residential house vide memo. Exh.P.G. On the same day, at the pointation of Muhammad Hussain appellant, recovered a shot gun P.4 alongwith two empties of .12 bore gun P.5/1-2 and two live cartridges P.6/1-2 from his Dhari vide memo. Exh.P.F.; recorded the statements of the recovery witnesses and prepared site plan Exh.P.O. With regard to both the recoveries; handed over all the parcels and other articles to the Moharrir; got prepared site plan Exh.P.M. And its duplicate Exh.P.M./1 by Sher Zainan Patwari P.W.9 and challaned both the accused.
6. Dr. Muhammad Riaz, Medical Officer, T.H.Q. Hospital, Shorkot (P.W.8) conducted the post-mortem examination on the dead body of Noor Muhammad deceased on 3-9-1992 at 8-30 a.m. And found the following: "(1) A fire-arm wound .4 c.m. x .4 c.m. x skin deep on front of left chest at lower part. No blackening was present.
(2) Multiple fire-arm entrance wounds in an area of 30 c.m. x 20 c.m. On front of abdomen, penis, scrotum and upper part of thighs. The wound started from epigastrium area and extended downward onboth sides of abdomen up to penis, scrotum and upper part of thighs. The abdominal wounds passed into abdominal cavity with no blackening or the margins.
(3) Multiple fire-arm entrance wound on back of left hand and finger in an area of 12 c.m..x 10 c.m.
With no blackening."
' The doctor found the abdominal arota punctured at many places, peritonium was ruptured under the abdominal injuries, stomach was ruptured and contained about 5 CC blood, small and large intestines were found punctured at many places, spleen was shrunken, bladder was ruptured and contained about 50 CC blood and 4 pellets, the abdomen was full of blood, arota ruptured at many places, 18 pellets were recovered from abdominal cavity and four from urinary bladder, all other organs of the body were healthy, all the injuries were ante-mortem and were caused with fire-arm.
In his opinion, death occurred due to shock and haemorrhage resulting from injury No,2 which was sufficient to cause death in the ordinary course of nature. The duration between the injuries and death was within one hour whereas the same between death and post-mortem was within 12 hours.
7. The charge was framed by the trial Court against both the appellants under section 302/324/34, P.P.C., to which they pleaded not guilty and claimed to be tried.
8. The prosecution in order to prove its case produced 11 witnesses, tendered in evidence positive reports of Ghemical Examiner (Exh.P.Q.) and of Serologist (Exh.P.R.) and closed its case.
9. The complainant Ohulam P.W.6 while reiterating the prosecution story as narrated by him in his complaint (Exh.P.13.) also explained that they had reached the land of Sikandar at about 3-00 p.m.; they completed the spraying of fields at about 8.00 p.m.; it was a dark night because the moon had already set; they had been spraying the field in the torch light; Sikandar had asked them' for the spray of the field a day earlier; the accused had never asked Noor deceased earlier in his presence not to pass from near their Dora; the accused were suspecting illicit relations between the deceased Noor end their sister for a period of six months prior to the occurrence; when the complaint Exh,P.B, was recorded, he knew the name of the sister of the accused who was known as Bashi the accused had fired from a distance of four Karams; they were at a distance of about 12 Karams from the place from where the accused fired; they had taken Noor and Ahmed in injured condition in a wagon to the hospital; he had brought the wagon from village Kot Lal which was at a distance of less than one square of land; Police Post Waryam was at a distance of 1-1/2 squares of land from the place of occurrence; while going to Civil Hospital, Shorkot one had to pass from Police Post Waryam; Police Station Shorkot City was at a distance of about one square from Civil Hospital; he stayed at the hospital for about 10/15 minutes and when started for the police station; there was no other enmity between the accused and the deceased except the abovesaid suspicion; he denied the suggestions that Noor deceased was sitting with the sister of the accused while Ahmad was keeping a guard and Muhammad Hussain accused had seen them in that condition, and, that in these circumstances Muhammad Hussain had fired with the shot gun as a result of which Noor and Ahmad were injured.
10. Ahmad p.W.10 corroborating the statement of the complaints on all material particulars, stated that Ghulam took them to the hospital where he was admitted in the hospital and was medically examined; after about 12/13 days, he produced his blood-stained clothes shirt P.9 and loin cloth P.10 which were secured vide memo. Exh.P.H.; his house was at a distance of about ten Killas from the house of Ghulam P.W.6; the lands of Sikandar were at a distance of two miles from the house of Ghulam; the occurrence took place at a distance .Of one Killa from the Dera of the accused and that the police had also reached the hospital immediately after they reached.
11. The Investigating Officer Aman Ullah, S.-I. P.W.11 conducted the investigation, details of which have been narrated above. In cross-examination, he denied the suggestions that during the investigation it was established that none except Ahmad P.W. Was present at the time of occurrence, and that it had come to his notice that on the night of occurrence, Noor Muhammad deceased accompanied by Ahmad P.W. Had gone to have a meeting with abovesaid Parveen alias Roshi. The Investigating Officer, however, explained that it was brought to his notice that Noor Muhammad deceased had developed illicit relations with Parveen alias Roshi daughter of Ghulam Khan.
12. P.W.10 Muhammad Arif Dispenser, T.H.Q. Hospital, Shorkot stated that he had been working with Dr. Muhammad Anwar as a Dispenser at the said hospital and was well-versed with the handwriting and signatures of Dr. Muhammad Anwar. Dr. Muhammad Anwar was on four months' leave and had gone with a Tableeghi Jamat to some unknown place. Exh.P.N. Was the carbon copy of the M.L.R. Which was in the hands of Dr. Muhammad Anwar and signed by him.
13. P.W.5 Falak Sher deposed to the recovery of blood-stained earth from the places where Noor Muhammad was murdered and where Ahmad was injured. Blood-stained earth was secured vide memo. Exhs.P.C. And P.D. Respectively. Similarly, torch P.3 was produced by Ghulam P.W.6 which was secured vide memo. Exh.P.E. And was also attested by P.W.5 Falak Sher.
14. P.W.1 Bashir Constable, P.W.2 Sajjad Hussain, P.W.3 Muneer Ahmad A.S.-I., P.W.4 Sultan and P.W.9 Shabbar Zaman supported the formal aspect of the prosecution case.
15. The statements of the appellants were recorded under section 342, Cr.P.C. They denied the prosecution allegations and opted not to make statements within the contemplation of section 340(2), Cr.P.C. Muhammad Hussain appellant in answer to question No,8 stated as under:--- "On the night of occurrence I was returning from my lands carrying shot gun belonging to my brother. When I reached near the place of occurrence I saw my sister Mst. Roshi and Noor Muhammad deceased sitting in the growth of trees in an objectionable manner. Ahmad P.W. Was sitting at a short distance. Seeing the deceased sitting with my sister in an objectionable manner I could not control my feeling and fired with the shot gun twice at the deceased Noor Muhammad on account of sudden and grave provocation due to Ghairat, as a. Result of which Noor Muhammad deceased and Ahmad P.W. Had suffered injuries. After the occurrence I sent my brother Muhammad Mumtaz accused to inform the police. The police took the deceased and the injured P.W. To the hospital and thereafter, summoned the complainant Ghulam from his house and concocted a false story as contained in the complaint EXh.P.B. My co-accused Muhammad Mumtaz was not present in the occurrence. The P.Ws. Are related to each other and have made false statement."
' Muhammad Mumtaz, appellant, also took similar stance in reply to question No,8. However, both the appellants did not produce any defence evidence.
16. Learned Trial Court has pronounced the abovementioned verdict, legality whereof has been assailed by the learned counsel for the appellants.
17. It is contended by the learned counsel for the appellants that as admitted by Ghulam complainant P.W.6, no previous enmity existed between the parties; that the presence of Ghulam complainant at the spot is doubtful while Ahmad injured P.W.7 has twisted the facts; that the defence version is reasonably probable as the appellant Muhammad Hussain had acted under grave and sudden provocation; alternatively it is submitted that it is not a case of capital punishment as the appellant acted due to family honour; that Mumtaz Hussain appellant is to be acquitted as he has been implicated falsely and that section 34, P.P.C. May be deleted as Mumtaz Hussain appellant has not been attributed any injury to the deceased.
18. Learned counsel for the State has supported the impugned conviction and sentences as recorded by the trial Court.
19. After having gone through the record and after having heard the arguments of the learned counsel for the parties, we are of the view that Mumtaz Hussain appellant, against whom no direct motive has been alleged, seems to have been roped in, widening the net, the seat and nature of injuries Nos.1 to 4 on the person of Ahmed P.W.7 as contained in Ex.P.N. Reflect that those were the result of fall on the ground after sustaining pellets injuries at the hands of Muhammad Hussain appellant. Sifting of chaff from the grain being the time honoured phenomenology, we hold that the prosecution case to the extent of Mumtaz Hussain appellant is not proved, thus, by way of abundant caution and for safe administration of justice, he is entitled to the conferment of benefit of doubt.
20. As regards the case against Muhammad Hussain appellant, we have noticed that the prosecution has fully proved its case against him through ocular account, motive, medical evidence and the recoveries. The presence of eyewitnesses at the spot cannot be doubted as they are residents of the same area and have fully explained their presence at the time and venue of the occurrence. The pellets injuries on the person of Ahmad P.W.7 leave no room to deny his availability at the venue of incident. The recoveries have been proved and the reports of the Chemical Examiner and of Serologist are also positive. The defence version put forward by Muhammad Hussain appellant is not plausible because it remains unexplained as to why Mst.
Roshi, sister of the appellants, was left unhurt if Muhammad Hussain appellant had seen her in an objectionable position with the deceased. However, we are of the opinion that the case against the appellant Muhammad Hussain is not that of capital punishment because as per complainant's own statement as P.W.6, the accused were suspecting illicit relations between the deceased Noor Muhammad and their sister for a period of six months prior to the occurrence. Therefore, the possibility cannot be ruled out that Muhammad Hussain appellant had acted due to family honour and that being the extenuating circumstance, capital punishment for the murder of Noor Muhammad deceased is not warranted.
21. Resultantly, the appeal qua Mumtaz Hussain appellant is accepted, his conviction and sentences as recorded by the Trial Court under section 302/324/ 34, P,P.C are set aside. He shall be released forthwith if not required to be detained in any other case.
22. The appeal to the extent of Muhammad Hussain appellant is partly allowed, his conviction is maintained, the death sentence is converted to imprisonment for life and is not confirmed, The remaining part of the sentences under section 302/324, P,P.C as recorded by the Trial Court is maintained with the only modification that in the event of default in payment of compensation on both counts, the appellant Muhammad Hussain shall suffer B.I. Instead of R.I. He shall be entitled to the benefit of section 382,B, Cr.P,C. The whole of the fine, if realised, shall be paid to the legal heirs of Noor Muhammad deceased and injured P.W.7 Ahmad respectively. The Murder Reference is answered in the negative.