KHALIL-UR-REHMAN RAMDAY, J.- One Arzam Gul had been tried by the learned Sessions Judge of Mianwali for the murders of Naib Khan and Naeem Khan; for having murderously assaulted one Rajan Shah and for having caused the death of a cow and two calves. Through his judgment dated 1.3.1993 the said learned trial Judge found the said Arzam Gul guilty of all the said charges; convicted him under Section 302 P.P.C, and punished him with death and a fine of Rs. 10,000/- or two years R.I. With a further direction to him to pay Rs.20,000/- as compensation to the heirs of the deceased persons, on two counts; convicted him under Section 324 P.P.C, for causing injuries to Rajan Shah P.W. And sentenced him to suffer five years R.I. And a fine of Rs.5000/- or to suffer two years, R.I. In default thereof and finally convicted Arzam Gul under Section 429 P.P.C, and ordered him to suffer three years R.I, therefor.
2. Murder Reference No.67 of 1993 seeks confirmation of the said sentences of death on two counts awarded to Arzam Gul who is before this Court through Crl. Appeal No.186 of 1993, to impugn the above-noticed conviction and punishments recorded against him. Both these matters are being disposed of together through this single judgment.
3. The occurrence in question had taken place on 12.7.1991 at about 5.15 ?. m. Near the house of Arzam Gul in the area of Wandah Katki Thai about 14 kilometers from Police Station Qamar Masani of Distt. Mianwali and the said occurrence had been reported at the said Police Station by Gul Shah Jan at about 05 a.m. The same day.
4. Narrating the occurrence and the background leading thereto Gul Shah Jan complainant had mentioned that his brother Naib Khan was running a shop in Qamar Masani where he used to sell steel and T. Iron etc.; that on the day of occurrence he and his said brother Naib Khan left home for Qamar Masani at about 5.15 a.m. that When they had gone a little ahead of the house of their brother, the late Gul Muhammad, they suddenly saw Arzam Gul sitting in a Morcha of his Baithak after arming himself with a rifle and a . 12 bore gun; that the said Arzam Gul raised a Lalkara that the complainant and his deceased brother used to help Naeem Khan and find a rifle shot which landed at the nose of Naib Khan who fell down and died; that on hearing th report of fire arm, Rajan Shah and Naeem Khan who were present in the house of the said Naeem Khan also rushed to the place of occurrence and admonished Arzam Gul Khan but the said accused find. Shots at Rajan Shah and Naeem Khan also causing injuries on their persons and which also injured a cow and two calves tethered in the house of Naeem Khan and that in the meantime quite a large number of co- villagers also reached the place of occurrence.
5. Disclosing the reason for this occurrence, the complainant had mentioned that about 12/13 years prior to the occurrence the revenue authorities had carried out consolidation proceedings in their village and a piece of land measuring I6 kanals belonging to Arzam Gul Khan had fallen to the share of one Zarghoon Shah which land was purchased by the above-mentioned Naeem Khan but Arzam Gul continued in possession of the said land and did not vacate despite various efforts made by Naeem Khan. The complainant had further disclosed that in the evening prior to the day of occurrence also Arzam Gul accused had demanded that this piece of I6 kanals of land should be mutated back in his name but the above-mentioned Naeem Khan and his brother had refused to oblige. The complainant had added that since they used to help Naeem Khan in this matter, therefore, Arzam Gul accused had mounted the above-described assault killing Naib Khan and injuring Rajan Shah and Naeem Khan.
6. It may be mentioned here that because of the fire arm injury received by Naeem Khan in his front chest he had finally died on 19.11.1991.
7. Khan Muhammad Inspector/S.H.O. (P.W.13) visited the place of occurrence from where he collected blood stained earth from the spot where Naib Khan had been injured and from the spot where Naeem Khan had been injured which blood stained earth he took into possession vide memos Exs.. PK. And PL., respectively. He also found an injured cow and two injured calves at the place of occurrence which also he took into possession vide memos Exs. PM. PN. And PO., respectively.
8. The said Khan Muhammad Inspector S.H.O, arrested Arzam Gul 0n 24.7.1991. He took into possession a .12 bore gun (P.8), for live cartridges (P.9/1-4) and a license (P.10) which-were lying on a cot where Arzam Khan was sitting at the time of his arrest and these articles were seized by the said I.O. Vide memo Ex. P.F. On personal search of the said accused a dagger (P. 11) was found on his person which was also taken into possession vide memo Ex. P.G. On the same day, as a result of the interrogation, Arzam Gul led to the recovery of a rifle (P.12) and 31 live bullets (P. 13/1-31) which were in a bag (P.14) and all these articles were seized by the I.O. prememoda Ex. P.H. As a result of further interrogation the said accused further led the I.O. To (fie recovery of a pistol (P.15) which was also taken into possession ride memo Ex.PJ.
9. When confronted with the prosecution case under Section 342 Cr.P.C. Arzam Gul appellant submitted that he and his brothers had instituted a declaratory suit against Naeem Khan deceased and other members of his family which was decided on 18.7.1990 as a result of the compromise between the parties and further that Naib Khan deceased never helped or was never a party to the said litigation and the appellant had thus no grudge against him.
10. The appellant had further pleaded that Rajan Shah P.W. Was a close relative of Naeem Khan deceased; that a brother of the appellant, namely, Aman Ullah had abducted a sister of the said Rajan Shah P.W. Namely, Mst. Anwar Begum who had even got pregnant; that the members of the local brotherhood decided that the appellant's said brother should never visit their village, namely, Wandah Katki Thai; that in the evening preceding the day of occurrence the said Aman Ullah and his wife came to the house of the appellant; that Rajan Shah P.W. And others came to know of this and surrounded the house of the appellant; that taking benefit of the darkness of the night, appellant's said brother, namely, Aman Ullah and his wife managed to slip away; that Rajan Shah P.W. And Naeem Khan deceased and others wanted to mount an attack on the house of the appellant as they wanted to kidnap the wife of the appellant and his daughter; that at early morning prayer time there was cross firing between the appellant and the said Naeem Khan and others; that the appellant subsequently Came to know that Naib Khan who had also rushed in after arming himself with a rifle to help Naeem Khan and others had received a stray pellet injury during the course of firing; that the appellant had used his . 12 bore licensed gun to defend himself and to ward of the attack mounted on him and his house; that some of the villagers informed the Police who reached the spot and managed cessation of firing by the two sides and further that the Police arrested the appellant from his house and took him to the Police Station alongwith his licensed gun. The appellant had further Claimed that he had a surgery of his eye before the present occurrence and that the prosecution had fabricated a false case because of Naib Khan deceased who was a big businessm an of Kamar Mashani.
11. What emerges thus from the appellant's above-noticed plea is that he admits the place of occurrence. He also admits the time of occurrence to be around the morning prayer i.e. Around sun-rise time. He further admits-the presence of Naib Khan deceased and Rajan Shah P.W. At the place of occurrence and the receipt of fire arm injuries by Naeem Khan in the occurrence in question. Therefore, what really requires determination in the present case is whether the complainant party had encircled the appellant's house and whether there was any cross-firing between the parties at the time of occurrence or whether the occurrence had taken place in the manner alleged by the prosecution.
12. Khan Muhammad Inspector/S.H.O. (P.W.13) denied the appellant having ever taken the plea that the complainant party had encircled his house or that the complainant party attacked him or his house or that the appellant had retaliated in self-defence. The I.O. Categorically denied having found any marks of bullets or pellets on any wall or at any place of the house of the appellant. He also did not find any crime empty at, near or around the place of occurrence. These facts negate any possibility of any exchange of firing between the two parties or the possibility of the complainant party having mounted any attack on the appellant or on his house. It is also not believable that having encircled the house of the appellant with preparation to mount an assault, the complainant party would return home with two dead and one injured and also with fire arm injuries to their cattle and without even a scratch on the person of the appellant who was all alone and without any marks on any part of the appellant's house or Morcha. This defence plea is, therefore, not plausible and is consequently rejected.
13. Gul Shah Jari complainant (P.W.11) is a brother of Naseeb Khan deceased.-Rajan Shah (P.W.12) is a first cousin of Gul Shah Jan complainant and Naib deceased. He is also a first cousin of Naeem Khan deceased. A sister of Naib Khan deceased and Gul Shah Jan complainant is married to Rajan Shah P.W. Whose daughter is the wife of one Asmat Khan who is a brother of the said Naib deceased and Gul Shah Jan complainant. Rajan Shah is an injured eye-witness of the occurrence.
The house of Naeem deceased is about 32 Karams from the house of the appellant and the house of *Rajan Shah P.W. Was at a distance of about 80 KARAMS from the house of the appellant and Naeem deceased. The house of Naib Khan deceased and Gul Shah Jan complainant was also in the same vicinity as their house was visible from the place of occurrence. As has been mentioned above, the occurrence had taken place around 'the time of sup-rise when sufficient day light is available to witness an occurrence. The appellant; Ifad admitted that he was the one who was sitting in the Morcha and had taken part in the occurrence and this was exactly the prosecution case also. The eye-witnesses never made any attempt to widen the net and despite a substantial loss caused on their side their case from the very beginning was that it was only the appellant, aided by none else who had done this entire damage.
14. The above-noticed facts and circumstances lead us to hold that it was Arzam Gul appellant who was responsible for the death of Naib Khan and Naeem Khan deceased; for causing fire arm injuries on the person of Rajan Shah P.W. And for causing injuries on the bodies of the three animals in the house of Naeem deceased and further that there had been no exchange of firing between the parties at the time of occurrence and that no attack had in fact been launched on the house of the appellant or his person.
15. This then brings us to the question as to what were the offences committed by the appellant and what were the punishments deserved by him in the circumstances of the present case.
16. It was the prosecution's own case that Arzam Gul appellant had mounted into a Morcha of his house and was sitting there after arming himself with lire arms before and around Fajar prayer time. Rajan Shah P.W. Admitted that he had gone to the house of Naeem deceased about 30 minutes prior to the occurrence. The question is as to why should Rajan have gone to the house of Naeem deceased at an early time of the morning and why had the appellant posted himself in a Morcha Quipped with fire arms. The complainant claimed that he and Naib deceased had left home at around 5 1/4 a.m. To reach the shop of Naib Khan deceased in Kamar Mashani which was about 14 kilometers away from their house. It was admitted by the complainant that the deceased used to go to Kamar Mashani in a wagon which would not take him more than half an hour to reach his shop. Naib deceased was empty stomach at the time of his death. It is not reasonably believable that he would leave home to go to his shop without eating or drinking anything and it is also not unknown that the shops, selling steel and TItorn do not open at Fajar prayer time. The obvious inference is that Naib Khan deceased and Gul Shah complainant were not passing from near the house of the appellant to go to their shop at Kamar Mashani. It was claimed by the appellant that his brother had abducted a sister of Rajan Shah P.W. And the said brother and his wife had come to the house of the appellant on the night preceding the morning of occurrence.
The eye-witnesses admitted this claim to the extent that a sister of Rajan Shah P.W. Was the wife of the said brother of the appellant but pleaded that this was an arranged marriage. This claim of the complainant regarding this marriage being an arranged marriage, does not inspire confidence.
17. What appears from all these facts and circumstances is that the appellant apprehended some threat, tengible or otherwise, from the complainant party which could well have been on account of the presence of his brother Aman Ullah in his house that night. This inference is strengthened by the fact that Rajan Shah P.W. Went to the house of Naeem Khan deceased at dawn and further that Naib deceased and Gul Shah Jan complainant were also present and available near and around the house of the appellant and Naeem deceased.
18. Naib deceased was shot at when he was about 96 Karams from the Morcha of the appellant while Naeem deceased and Rajan Shah P.W. Had been find at when they were at least 32 Karams away from the appellant. If the appellant had any pre-meditated design to kill Naib deceased as claimed, then the appellant would not have find at him from such a long distance and similar is the position of the appellant's attach at Naeem deceased and Rajan Shah P.W. The prosecution accusation that the occurrence had got initiated because the appellant wanted to kill Naib deceased because of the alleged assistance which he used to render to Naeem deceased is not believable because if the appellant had to eliminate some one on account of his alleged dispute of land with Naeem deceased then he would eliminate the cause which was Naeem and not do Naib to death keeping the cause intact. Thus our conclusion is that while the complainant party had not mounted any assault on the appellant or on his house, the fact remained that there was something brewing in the camp of the complainant party and the immediate cause which could have caused some message of apprehension and threat to the appellant who consequently took a position in his Morcha and find shots is not clearly and specifically ascertainable.
19. Resultantly, while we hold the appellant guilty of Qatal-e-amid we find that it was not a case of wanton and callous crime committed by him. We are thus of the opinion that imposition of penalty of death was not warranted in the circumstances of the present case.
20. The result is that the sentences of death awarded to Arzam Gul appellant for the murders of Naib Khan and Naeem Khan are not confirmed. He is instead ordered to suffer imprisonment for life under Section 302(b) P.P.C, on two counts for the said two murders. The provisions of Section 302 P.P.C, as they presently stand do not envisage the imposition of any sentence of fine. Therefore, the punishment of fine awarded to the appellant is set aside.
21. We have found any reason to interfere with the conviction and punishments awarded to the appellant under Section 324 P.P.C, and 429P.P.C. Consequently, the punishments and sentences awarded to him on the said two charges are maintained. However, the sentences of imprisonment for life to be suffered by the appellant on two counts under Section 302 (b) P.P.C, and the sentences of imprisonment awarded to him under Sections 324 P.PX. And 429 P.P.C, shall run concurrently and he shall be allowed the benefit of the provisions of Section 382-B Cr.P.C.
22. Considering that the amount of comperation directed to be paid by the appellant under Section 544-A Cr.P.C, for the Qatal-e-amd of Naib Khan and Naeem Khan were not adequate, we issued notice to the appellant for the enhancement of the amount of compensation which notice was accepted by his learned counsel. Having heard the parties we enhance the amount of compensation from Rs.20,000/- to Rs.1,00,000/- with respect to the charge under Section 302 P.P.C, on each count and we further direct that in case of default of payment of this amount of compensation, he shall suffer six months S.I. On each count. We further command that the amount of compensation above-mentioned shall be recoverable as arrears of land revenue.
23. Murder Reference No.67 of 1993 and Crl. Appeal No.186 of 1993 are disposed of in the above terms.