' ASIF SAEED KHAN KHOSA, J.--Bagh Ali appellant was convicted by the learned Sessions Judge, Lodhran vide judgment dated 21-8-1996 on two counts of an offence under section 302, P.P.C. And was sentenced to death on both the counts. However, through the same judgment the appellant's brother Niaz Ahmad alias Nazo was acquitted by the learned trial Court. Bagh Ali appellant has challenged his convictions and sentences before this Court through Criminal Appeal No,240 of 1996. Muhammad Hanif complainant has challenged the acquittal of Niaz Ahmad alias Nazo accused before this Court through Criminal Appeal No,293 of 1996. We have heard both appeals alongwith Murder Reference No,236 of 1996 seeking confirmation of the sentences of death passed against Bagh Ali appellant. We propose to decide all these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Muhammad i-Tanif complainant was an agriculturist by profession and a resident of Chah Shah Wala in Village Wahand Sarmani situated within the area of Police Station Sadar, Kehror Pacca, District Lodhran. Three years prior to the present occurrence the complainant's brother Khuda Bakhsh got married to Mst. Sayyan Bibi daughter of Fateh. Muhammad, resident of Tibba Sheraywala, Police Station Haroon Abad. In return, by way of Watta, the complainant's sister Mst. Faiz Ilahi was given in marriage to Niaz Ahmad alias Nazo son of Patch Muhammad. Both those ladies were settled in their homes with their respective husbands. On 31-12-1994 Fateh Muhammad came and left the complainant's sister Mst. Faiz Ilahi at the house of the complainant and took away his own daughter Mst. Sayyan Bibi with him. At about 4/5-00 p.m. On 1-1-1995 Niaz Ahmad alias Nazo accused and his brother Bagh Ali appellant came to the house of the complainant and sat there. After some time they left by saying that they would soon come back after attending to some work at Village Massa Kotha.
When the appellant and his co-accused reached the bank of the canal near Basti Pawliwali the complainant's brother Khuda Bakhsh came there from their front. The appellant and his co- accused then raised a Lalkara that they would teach a lesson to Khuda Bakhsh for unjustifiably beating their sister Mst. Sayyan Bibi. Upon hearing that noise the complainant, his father Muhammad Usmam, his mother Mst. Noor Begurn, Haji Muhammad Ramzan and Muhammad Tufail rushed to the place of occurrence. Then, within the view of those witnesses,' Bagh Ali took out a revolver from his Dub and fired a shot at Khuda Bakhsh hitting him on his left flank. Khuda Balchsh fell down upon receiving that injury. When the complainant, etc. Tried to go nearer they were warned by the appellant and his empty-handed co accused Niaz Ahmad alias Nazo. The complainant's father Muhammad Usman still went forward and tried to handle his injured son Khuda Bakhsh whereupon Bagh Ali appellant fired a shot at Muhammad Usman hitting him at his front chest. The appellant then injured Muhammad Usman's left hand with the barrel of his revolver causing him a fracture of his left middle finger and injury to left index finger. Upon the hue and cry raised by the complainant, etc. The appellant and his co-accused started leaving the place of occurrence when the complainant's minor son Mulazim Hussain, aged 6/7 years, came to the spot carrying Khuda Bakhsh's licensed double-barrel .12 bore gun. Both the assailants also snatched away that gun from that boy before leaving the place of occurrence. The complainant's brother Khuda Bakhsh and their father Muhammad Usman succumbed to their injuries at the spot. The motive set up in the F.I.R. Was that the appellant and his brother Niaz Ahmad alias. Nazo accused were aggrieved of the beating given by Khuda Bakhsh deceased to their sister Mst. Sayyan Bibi.
3. Leaving the dead bodies of Khuda Baldish and Muhammad Usman at the place of occurrence in the care of his companions the complainant proceeded to report the matter to the local police. He went to Police Station Saq,ar, Kehror Pacca, District Lodhran and lodgeeF.I.R. No, 3 which was recorded by Muhammad Tufail, S.I. (P.W.8) at 5-30 p.m. In the same evening for offences under section 302/379/34, P.P.C.
4. After recording the statement of the complainant, Muhammad Tufail, S.I.(P.W.8) took up the investigation of this case, proceeded to the place of occurrence, collected blood-stained earth from the two places. Of murder, took into possession two crime-empties from the spot, prepared a rough site-plan of the place of occurrence, prepared injury statements and inquest reports regarding the two dead bodies and sent the dead bodies to the mortuary for autopsy.
5. Post-mortem examination of the dead body of Muhammad Usman was conducted by Dr. Muhammad Maqbool (P.W.4) on 2-1-1995. He had found three injuries on the dead body which were all ante-mortem and caused by fire-arm. The cause of death was haemorrhage and shock due to injury to major blood vessel, i,e, ascending aorta due to Injury No, 1 which was sufficient to cause death in the ordinary course of nature. Injuries Nos. 2 and 3 were found to be grievous in nature. In the opinion of the doctor the time elapsing between the injuries and death was immediate whereas the time elapsing between death and post-mortem examination was between 15 to 20 hours.
6. Post-mortem examination of the dead body of Khuda Bakhsh was conducted by the same doctor on the same day. He had found two injuries on the dead body which were all ante-mortem and catised by fire-arm. The cause of death was haemorrhage and shock due to injury to vital organ, i,e, lung and heart due to both the injuries which were sufficient to cause death in the ordinary course of nature. In the opinion of the doctor the time elapsing between the injuries and death was immediate whereas the time elapsing between death and post-mortem examination was between 18 to 22 hours.
7. After the post-mortem examination of the two deceased Muhammad Tufail, S.I.(P.W.8), the Investigating Officer, secured the last-worn clothes of the deceased. He arrested the appellant and his co-accused on 14-1-1995 and recovered a .30 bore pistol from the appellant and a .12 bore gun from Niaz Ahmad alias Nazo accused. He then got a formal site-plan of the place of occurrence prepared by a Patwari. Thereafter, he completed the other formalities, finalized his investigation and submitted a Challan in respect of this case.
8. At the commencement of the trial the learned trial Court framed a charge with two heads under sections 302/34 and 392, P.P.C. Against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.
9. During the trial the prosecution produced as many as eight witnesses in support of its case against the appellant and his co-accused. Muhammad Hanif complainant (P.W.1) and Muhammad Tufail (P.W.2) furnished the ocular account of the incident. The motive set up by the prosecution was also stated by Muhammad Hanif complainant (P.W.1). Dr. Muhammad Maqbool (P.W.4) provided the medical evidence. Muhammad Tufail (P.W.2) also deposed about the recoveries effected from the appellant and his co-accused. Muhammad Tufail, S.I. (P.W.8) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
10. In their statements recorded under section 342, Cr.P.C. Bagh Ali appellant and Niaz Ahmad alias Nazo accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They maintained that they had been falsely implicated in this case by the prosecution witnesses as they were closely related to the two deceased. The appellant and his co-accused neither made any statement on oath under section 340(2), Cr.P.C.
Nor produced any witness in their defence. They, however, tendered two documents in their defence.
11. At the conclusion of the trial the learned Sessions Judge, Lodhrar ronvict,;.d and sentenced Bagh Ali appellant as noticed and detailed above and acquitted Niaz Ahmad alias Nazo accused. Hence, the present appeals and the connected Murder Reference before this Court.
12. We have heard the learned counsel for the appellant and the learned counsel for the State and the complainant and have also gone through the record of this case with their assistance.
13. The learned counsel for Bagh All appellanl his half-heartedly argued that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. His alternative, and in fact the main, argument has been that on account of the fact that the prosecution had failed to prove the alleged pre-existing motive set up by it against the appellant and also due to the fact that the immediate cause of the occurrence had remained shrouded in mystery the appellant deserved concession in the matter of sentence. As against that the learned counsel for the Sate and the complainant have argued that the prosecution had successfully proved the guilt of the appellant to the hilt and that no mitigating factor existed on the record so as to reduce the appellant's sentence. The learned counsel for the complainant has also maintained that the learned trial Court was not justified in recording the acquittal of Niaz Ahmad alias Nazo accused.
14. After hearing the learned counsel for the parties and going through the record we have found that the learned counsel for the appellant is quite justified- in not wholeheartedly challenging the finding of guilt recorded by the learned trial Court against the appellant. The prosecution had indeed succeeded in proving the guilt of Bagh Ali appellant beyond reasonable doubt. Muhammad Hanif complainant (P.W.1) and Muhammad Tufail (P.W.2) were natural witnesses of the occurrence as they liVed at a stone's throw from the place of occurrence and could easily have been attracted to the place of occurrence immediately upon hearing the noise emanating therefrom. It was a 'daylight occurrence and the appellant was %.,quite well-known to them being their very close relative. Thus, there was no chance of lack of identification on their part or of a mistaken identity of the actual culprit. They had made consistent statements regarding the main occurrence. The father and a brother of the complainant and the father-in-law and a brother-in-law of the other eye-witness had been murdered within their view and, therefore, it was not conceivable for the said witnesses to substitute the appellant for the actual murderer.
15. The F.I.R. In this case had been lodged quite prothptly with all the necessary details. This has been taken by us as a circumstance corroborating the eye-witnesses and their account of the incident in question.
16. Recovery of a pistol from the appellant during the investigation of this case and its subsequent matching with the crime-empties recovered from the place of accurrence had also provided strong corroboration to_the ocular account. We have noticed it with care that the crime-empties had in fact been dispatched to Forensic Science Laboratory much before the recovery of pistol from the appellant. Reference to a revolver in the F.I.R. And subsequent recovery of a pistol during the investigation has failed to impress us as a great contradiction in the prosecution's case because we are conscious of the fact that ordinary people cannot readily make out a distinction between the two, and that too at a time when firing is actually going on during an occurrence of murder. The focus of attention at such an upsetting time is the weapon being used but the da: age causing! We have also attended to the argument of the learned counsel for the appellant that the some of the witnesses had admitted of putting their thumb-impressions on blank papers and of preparation of the recovery memos. At the police station and not at the spot. This argument has overlooked the fact that the said witnesses had made such statements regarding recoveries from the place of occurrence and not about recovery of weapon from the appellant. Any inefficiency or lethargy shown by the Investigating Officer at the place of occurrence cannot ipso facto reflect on the genuineness of the recovery of weapon subsequently effected from the accused person.
17. Apart from a minor contradiction over the injuries on the fingers of Muhammad Usman deceased's left hand the medical evidence had furnished ample support to the statements of these eye-witnesses in all the relevant details about the time of occurrence, the weapon used and the seats of injuries.
18. For the reasons discussed above the eye-witnesses have succeeded in inspiring our confidence and we have found no serious or cogent reason to doubt the prosecution's veracity. Thus, we have no hesitation in concluding that Bagh Ali appellant had indeed committed the murders of Khuda Bakhsh and Muhammad Usman deceased and he was rightly convicted on both the counts of an offence under section 302, P.P.C.
19. In the absence of any confession of guilt made by the appellant or the prosecution witnesses having been subjected to Tazkiyatul-Shuhood so as to attract a sentence of Qisas under section 302(a), P.P.C. We have decided to treat the appellant's case to be one attracting the sentence of Ta'zir under section 302(b), P.P.C.
20. We have also considered the question of quantum of sentence vis-a-vis Bagh Ali appellant with all seriousness. We are conscious of the fact that it was a case of double murder. But at the same time we have found that the prosecution had failed to prove the motive set up by it against the appellant It was only Muhammad Hanif complain (P.W.1) who had stated about the motive. No other independent evidence had been produced by the prosecution to show that the relations between the parties had become strained over their Watta marriages. Even the complainant had himself stated before the learned trial Court that the relations between Khuda Bakhsh deceased and his wife Ms Sayyan Bibi were normal and also that he never seen them quarrel with each other had also gone on to state before the learn trial Court that no altercation had ever take place between the accused party and the complainant party before the press occurrence. Apart from that no in depend proof was available on the record to suppuly the prosecution's stand that the father of appellant had left the complainant's sister the complainant's house and had taken a his own daughter with him from the house the complainant one day prior to the Ares: occurrence. In the absence of any convince proof of that fact the motive set up by prosecution could not be conclusive established at all. Even otherwise prosecution's story that the appellant and brother Niaz Ahmad alias Nazo accused come and sat with the complainant's family the house of the complainant and had left said house stating to come back attending to some work just before occurrence in question was sun incompatible with the alleged breakdown the Watta marriages between the parties juries day earlier. Such a normal and cord conduct was least expected of the parties the alleged return of Watta spouses had indeed taken place only one day earlier! We have, thus, not felt convinced of the motive set up by the prosecution.
21. Apart from that we have also noticed hat as to what transpired between Khuda Bakhsh deceased and the appellant immediately preceding the occurrence had also remained shrouded in mystery. In this context we have noticed that just before the currency the appellant was peacefully Ming and chatting with the complainant and is family inside the complainant's Haveli. At Haveli admittedly had four walls around and the outside surroundings were not risible from inside that Haveli. Again, the appellant had left the complainant and his Family from inside that Haveli when the broaching. Khuda Bakhsh deceased was not risible to the appellant or the complainant arty. Thus, the appellant had not left the haveli upon seeing Khuda Bakhsh deceased approaching the said Haveli and with an intention to carry out his design of killing Khuda Bakhsh. It has been significantly noticed by us that the complainant had stated for the learned trial Court that some altercation had taken place between Khuda Bakhsh deceased and the appellant at the lace of occurrence before the appellant had taken out his pistol and fired at Khuda Bakhsh ceased. In the absence of proof of the existing motive set up by the prosecution the subject and the nature of that altercation making place immediately before the occurrence had assumed great importance but, fortunately, the prosecution had remained completely silent about the subject and the nature of that altercation. Thus, it could not known as to what had transpired between e deceased and the appellant immediately before the occurrence propelling the appellant to aggression not only against Khuda Bakhsh deceased but also against his intervening father ,Muhammad Usman deceased.
22. In this state of the evidence, i,e, absence of convincing proof of the existing motive and immediate cause of the occurrence remaining shrouded in mystery, we have felt it to be unsafe to uphold the sentences of death passed against the appellant by the learned trial Court. Therefore, in the exercise of our discretion in the matter of sentence we set aside the sentences of death passed against the appellant by the learned trial Court on both the counts of section 302(b), P.P.C.
And substitute the same with imprisonment for life on both the counts. The appellant shall also be entitled to.The benefit under section 382-B, Cr.P.C. Both the sentences of imprisonment shall run concurrently. After noticing that the learned trial Court had failed to order payment of compensation by the appellant to the heirs of Khuda Bakhsh and Muhammad Usman deceased under section 544-C, Cr.P.C. We issued notice in that regard to the appellant during the hearing of this appeal and the said notice was accepted on behalf of the appellant by his learned counsel. It is hereby ordered that on both the counts the appellant shall pay a sum of Rs,50,000 to the heirs of each deceased by way of compensation under section 544-A, Cr.P.C. Failing which he shall suffer simple imprisonment for six months on both the counts.
23. As far as Muhammad Hanif complainant's appeal against the acquittal of Niaz Ahmad alias Nazo accused is concerned we have found that he was admittedly empty-handed during the main occurrence and had not caused any injury to anybody during the same. We have already observed above that the prosecution had failed to establish the motive set up by it and the immediate cause of the occurrence had also remained shrouded' in mystery. It was also not established on the record that Niaz Ahmad alias Nazo accused knew that his co-accused Bagh Ali was carrying a pistol in his Dub: Thus, it could not be said with any amount of certainty whether Niaz Ahmad alias Nazo accused shared common intention with his co-accused Bagh Ali in respect of commission of murder. Apart from that we have found that the reasons advanced by the learned trial Court for recording his acquittal are not averse to the settled principles governing safe dispensation of criminal justice. No misreading or non-reading of the relevant record has been pointed out by the learned counsel for the complainant in this regard. The conclusions arrived at by the learned trial Court qua him are such that any reasonable Court could have arrived at the same upon a fair appraisal and assessment of the evidence on record. Thus, we have not felt persuaded to interfere with the judgment of his acquittal.
24. The upshot of the above discussion is that Bagh Ali appellant's appeal is dismissed to the extent of his convictions but partly allowed to the extent of his sentences in the terms recorded in paragraph No, 22 above. Muhammad Hanif complainant's appeal against the acquittal of Niaz Ahmad alias Nazo accused is dismissed.
25. As the sentences of death passed by the learned trial Court against Bagh Ali appellant have been set aside by us, therefore, Murder Reference No,236 of 1996 is hereby answered in the.
Negative.
Death sentences are not confirmed.