' CH. MUHAMMAD ARIF, J.---The instant appeal by leave of this Court has arisen in the background of registration of case F.I.R. No,435 of 1989 under section 302/307/34, P.P.C. At Police Station Jarranwala concerning occurrence, dated 18-8-1989 at 1-30 p.m. At the shop of appellant Mushtaq Ahmad in the area of Chak No,100 G.B. At the instance of Mst. Hanifan (P.W.5) regarding the murder of her son Muhammad Ramzan by appellant Mushtaq Ahmed and his brother Muhammad Rafique, who were also accused of launching an assault on Mehmood Ahmed (P.W.7), a real brother of the deceased Muhammad Ramzan. The occurrence was reported to Muneer Ahmad S.I./P.,W.10 while he was present at Pull Sherrowana in the area of Chak No,26 G.B. At about 4.00 p.m. Formal F.I.R.
Was registered at the abovementioned police station at 4-15 p.m. On the day of the occurrence i.e, 18-8-1989.
2. The case of the prosecution, as culled out from F.I.R. Exh.PA/1, was that the first informant was a widow and had six sons putting up with her. Deceased Muhammad Ramzan was a mason and had lent an electric iron to appellant/Mushtaq Ahmed which had not been returned by him till the day of occurrence. On the morning of 18-8-1989 Muhammad Ramzan deceased had gone to the shop of the appellant to enquire about the electric iron and some hot words were exchanged between them whereafter Mushtaq Ahmed appellant promised to return the electric iron in the afternoon.
When the deceased went to the shop of appellant Mushtaq Ahmed, accompanied by his younger brother Mehmood Ahmed (P.W.7) aged about 10/11 years, at about 1.30 p.m., the appellant, who was armed with a pistol and his brother Rafique accused, who was armed with an iron rod, launched an assault on the deceased and Mehmood Ahmed (P.W.7). Mushtaq Ahmed, appellant had made as many as five shots with his pistol out of which four had hit Muhammad Ramzan deceased and the last, the head of Mehmood Ahmed (P.W.7). Meantime, Tufail (P.W.6) and Ghulam Hassan (given- up) also rushed to the spot and challenged the assailants who ran away from the place of occurrence. Muhammad Ramzan deceased had succumbed to the injuries at the spot. F.I.R.
Exh.P.A.1 was recorded by Muhammad Afzal/M.H.C. (P.W.2).
3. The Investigating Officer/P.W.10 proceeded to the spot and (1) prepared injury statement P.J., as also inquest report, Exh.P.K., (2) despatched the dead body for post mortem examination under the escort of Sher Muhammad Constable (P.W.11) to Civil Hospital, Jarranwala, (3) sent P.Ws. Asgher and Rashid to Civil Hospital for the purposes of identification of the dead body, (4) collected the blood-stained earth from the spot and (a) made it into a sealed parcel (b) prepared memo Exh.P.E.
Which was attested by P.Ws. Muhammad Tufail and Ghulam Hassan, (5) inspected the spot and got prepared the site plans Exh.P.B. And Exh.P.B./1 in duplicate from Aurang Zeb Draftsman (P.W.3),
(6) went to Tehsil Headquarter Hospital Jarranwala on 19-8-1989 and recorded the statement of Mahmood Ahmad injured P.W. Who also produced before him his own blood-stained clothes, i.e, shirt P.3 and bunian P.4 which were taken into possession vide memo. Exh.P.F. On 19-8-1989 Sher Muhammad Constable produced before the Investigating Officer the last worn clothes of the deceased i.e,, shirt P.5 and Shalwar P.6. He also produced before him a sealed phial P.7, containing bullets, which was handed over to him by the Medical Officer. All these articles were taken into possession vide memo Exh.P.L. Which was signed by Sher Muhammad Constable.
4. The appellant as well as his brother Muhammad Rafique were arrested in the case on 21-8-1989.
It was on 26-8-1989 that Musthaq Ahmad accused led to the recovery of revolver P.I. Which was made into a sealed parcel and was taken into possession vide memo Exh.P.C., attested by Munir Ahmed and Jan Muhammad P.Ws. Investigating Officer P.W.10 also prepared the plan of the place of recovery of revolver Exh.P.C./1. Similarly, Muhammad Rafique alias Pupa accused led to the recovery of Saria P.2 which was taken into possession vide memo Exh.PD, attested by Munir Ahmad and Jan Muhammad P.Ws. He prepared the plan of the place of recovery of Saria Exh.P.D./1 The sealed parcels were handed over by Investigating Officer to Muhammad Afzal Head Constable for safe custody in the Malkhana and further appropriate action in that regard. On 29-8-1989, on his query Exh.P.M., the doctor had opined that the injury on Mahmood was simple in nature. The Investigating Officer had also recorded the statements of the P.Ws. And got the accused challaned thereafter.
5. During trial, P.Ws. Asgher Ali and Ghulam Muhammad were given up as unnecessary. On 4-3- 1991, the learned Deputy District Attorney tendered in evidence the Report of Chemical Examiner, Exh.P.N., report of Serologist Exh.P.O. And Report of Examiner of Fire Arms Exh.P.Q. And closed the case for the prosecution.
6. The statements of accused Mushtaq Ahmad and Muhammad Rafique alias Pupa under section 342, Cr.P.C. Were recorded in which, inter alia, they respectively denied the recovery of revolver P.1 and saria P.2. However, both the accused opted not to appear on oath to disprove the allegations against them.
7. Vide judgment, dated 5-3-1991, the learned Additional Sessions Judge opined that (i) prosecution has established its case against accused Mushtaq Ahmad (ii) ocular account furnished by Mst. Hanifan Bibi P.W.5, Muhammad Tufail P.W.6 and Mahmood Ahmed P.W.7 is believable, (iii) motive part of the story inspires confidence, (iv) statements of the P.Ws. Stand corroborated by medical and recovery evidence and (v) prosecution has succeeded in establishing its case against the accused. Put differently, the trial Court did not see eye to eye with the defence that (1) the version in the F.I.R. Is shaky, (2) ocular account furnished by the eye- witnesses is not reliable, (3) motive is not so strong as to lead to the commission of murder, (4), the statements of recovery witnesses are not believable, (5), medical evidence in the case is in conflict with the ocular-account, (6)"there is lack of corroboration, (7) prosecution evidence is imperfect and (8) Mst. Hanifan Bibi had made improvements in her statement in Court with the result that the prosecution appears to have failed to establish the case against the accused beyond a reasonable doubt. Paras. 25, 26 and 27 of judgment, dated 5-3-1991 read thus:- "(25)The learned defence counsel has pointed out that Munir Ahmad, S.I. P.W.10, has committed certain irregularities while preparing inquest report Exh.P.K. The alleged irregularities pointed out by learned defence counsel are not of substantial nature which may have any effect on the merits of the case.
"(26)After surveying the whole evidence produced by the prosecution in this case and going through the statements of the accused recorded under section 342, Cr.P.C. Anu minutely attending the arguments of learned counsel for the parties I arrive at irresistible conclusion that prosecution has failed to establish guilt against Muhammad Rafique alias Pupa accused beyond any reasonable shadow of doubt. Consequently, no charge against him is proved under section 307/34, P.P.C., as such he is acquitted from the charges/allegations levelled against him by giving him benefit of doubt. Muhammad Rafique alias Pupa accused is present in Court on bail. His bail bonds are discharged and sureties are released.
"(27)So far as Mushtaq Ahmad accused involvement in the present case is concerned, the prosecution through ocular and medical evidence established the guilt against him to the hilt. He had callously fired four shots at Muhammad Ramzan alias Jana deceased with his revolver, as a result of which he succumbed to his injures and consequently he is held guilty for the commission of murder of Muhammad Ramzan alias Jana deceased. Accordingly Mushtaq Ahmad accused is convicted under section 302, P.P.C. And punished to death and a fine of Rs,5,000. He be hanged by the neck till he is dead. In addition to above fine, Mushtaq Ahmad accused is directed to pay compensation of a sum of Rs,20,000 as required under section 344-A, Cr.P.C. To the legal heirs of the deceased. Compensation shall be recoverable as arrears of land revenue. Failing to pay compensation, Mushtaq Ahmad accused shall suffer six months S.I. Death sentence awarded to Mushtaq Ahmad accused is subject to the confirmation by the Hon'ble High Court, Lahore.
Proceedings shall be submitted to the Hon'ble High Court, Lahore and the sentence shall not be executed, unless it is confirmed by the Hon'ble High Court. Musthaq Ahmad accused is present in Court in police custody. He is informed to file the appeal against this judgment within seven days' time. He is further informed that he will be furnished copy of this judgment free of cost on his application. Mushtaq Ahmed accused is remanded to jail under the warrant of conviction for undergoing the sentence awarded to him. Weapon of offence, i.e, revolver P.1. Be returned to its original owner, Sarria P.2 and last worn clothes of the deceased be destroyed after the expiry of period of appeal or revision, if any."
8. Appellant Mushtaq Ahmed challenged his conviction and sentence, dated 5-3-1991 through Criminal Appeal No,238 of 1991. Appellant's Criminal Appeal as well as Murder Reference No,125 of 1991 were taken up alongside Mst. Hanifan's Criminal Revision No,263 of 1991 calling in question the acquittal of Muhammad Rafique accused and disposed of by a learned Division Bench of the Lahore High Court, Lahore vide the judgment in appeal, dated 10-7-1994 holding, among others, that (1) Muhammad Tufail P.W. Is: (a) neither related or connected with the complainant party in any manner nor he had any or animosity towards the appellant, (b) he is not only an independent witness but also a witness from the vicinity of the place of occurrence and (c) no reason whatsoever has been offered by the defence as to why he should have falsely implicated the appellant, (2) Mehmood Ahmed P.W. (a) was about twelve years of age when he entered the witness-box, (b) is a brother of the deceased, (c) it was disclosed in the F.I.R. That he had received an injury during the occurrence, (d) injury on his person had not at all been challenged by the defence, (e) not a single question had been put to Doctor Shahid Jamil (P.W.9) who had medically examined the said P.W., about this injury (1) being not there or (2) being self-suffered or (3) suffered by a friendly hand, (f) Mehmood Ahmed P.W. Himself entered the witness-box, and therefore, the mere fact that he has been medically examined after about 48 hours of the occurrence, would be of no avail to the defence. It was also observed by the learned Division Bench of the High Court that "As has been mentioned above, Mehmood P.W. Had been specifically mentioned as being an injured person of the occurrence in question and if the Investigating Officer had neglected to have him examined immediately by a medical officer or to record his statement under section 161, Cr.P.C., then the same cannot adversely reflect upon the veracity of this P.W.'s testimony. Needless to mention here that there was no background of any or enmity between the two parties and in the circumstances, no reason exists to hold that Mehmood P.W. Would have falsely burdened the appellant with the murder of his brother. Mehmood P.W. Had specifically stated about his deceased brother and himself having gone to the shop of the appellant to collect the electric iron which had been given to the appellant for repairs, and in the circumstances it would not be said that the reason offered by the prosecution/complainant for the occurrence in question did not stand proved. It may also be added here that this part of Mehmood P.W's. Statement had not been questioned by the defence during the course of his cross-examination. It had been argued that Mehmood P.W. Should not be believed because the complainant who is his mother had stated through the F.I.R. That the injury received by him in his head was a firearm injury whereas, the same had been found to be a blunt weapon injury. Mehmood P.W. Cannot be condemned on account of whatever had been stated by her mother. He had declared through his statement in Court that the injury on his person was a blunt weapon injury caused by Rafique accused and the defence could not bring it on record that he had also stated through his statement under section 161, Cr.P.C. That the injury received by him was a firearm injury. Therefore, so far as Mehmood P.W. Was concerned, he was consistent about the injury received by him and, therefore, no adverse inference could be drawn about the veracity of his testimony."
(underling is for emphasis).
9. Leave Grand Order, dated 21-3-1995 reads thus:-- "On 18th of August, 1989, a case under section 302/307/34, P.P.C. Was registered against Mushtaq Ahmad and Muhammad Rafiq sons of Abdul Hameed with Police Station Jaranwala, District Faisalabad on the statement of Mst. Hanifan. The complainant, Mst. Hanifan had six sons. Her eldest son works in a local mill while younger one namely Muhammad Ramzan earns his livelihood by working as mason. Before Eid, Muhammad Ramzan gave his electric iron to Mushtaq Ahmad to get it repaired. The appliance was not returned to Muhammad Ramzan as promised.
Early in the morning, on 18th of August, 1989, Muhammad Ramzan son of the complainant went to Mushtaq Ahmad in order to take back his electric iron. Hot words plus threats were exchanged by the parties because the petitioner was not prepared to do the needful. At about 1-30 p.m., on the same day, Musthaq Ahamd and Muhammad Rafique alias Pupa were present in their house in the village. Musthaq Ahmad was armed with a pistol while his co-accused Muhammad Rafique alias Pupa was holding an iron rod. Muhammad Rafiq raised Lalkara whereupon Mushtaq 'Ahmed fired which hit Muhammad Ramzan. On receipt of injury, the victim fell down. On alarm, Muhammad Tufail and Ghulam Hassan reached the spot to witness the occurrence. The learned Additional Sessions Judge, Faisalabad vide his judgment, dated 5th of March, 1991 convicted and sentenced Mushtaq Ahmed to death. Muhammad Rafique, his co-accused was acquitted by giving him the benefit of doubt. A Division Bench of the Lahore High Court confirmed the death sentence of the petitioner and rejected his appeal on 10-7-1994. The petitioner has challenged his conviction and sentence by filing this petition for leave to appeal. It is contended that Mst. Hanifan Bibi, P.W.5, Muhammad Tufail, P.W.6 and Mahmood Ahmad, P.W.7 are interested witnesses and as such cannot be relied upon to uphold the conviction of the petitioner. Mst. Hanifan is the mother of Muhammad Ramzan (deceased) while P.W.7, Mahmood Ahmad is his minor brother. The witnesses being interested required corroboration by some independent evidence. The requisite corroboration is being sought from the evidence of Muhammad Tufail, P.W.6 but he is a chance witness inasmuch as he had no business to be present at the spot at the time of occurrence as submitted by the learned counsel for the petitioner. This aspect of the A petitioner's case needs further consideration.
This being so, leave is granted to the petitioner for the safe administration of criminal justice in this case."
10. Mr. Sardar Muhammad Latif Khan Khosa, learned Advocate Supreme Court appearing in support of this appeal has confined his arguments to the question of sentence alone. He was of the view that even if the occurrence had taken place in the way in which it was alleged by the prosecution, it was not the result of any deep rooted enmity between the parties. According to him, he is not pressing the question of sentence on the basis of triviality of motive at all. Such a situation, it is admitted by the learned counsel for the appellant, cannot stand in the way of exacting death penalty from persons found guilty of murder. Here, the immediate cause of friction remains shrouded in mystery. Except for Mahmood Ahmed P.W. None of the other witnesses was present at the spot when the occurrence took place. The evidence of the first informant/mother of the deceased (as also mother of P.W. Muhammad Ahmed) regarding hot words having been exchanged between the appellant and the deceased in the morning of 18th August, 1989 also pales out into insignificance for the simple reason that the appellant had promised to return the electric iron at 1.30 p.m. The same day. Mahmood Ahmed P.W. Is also silent on the question as to what preceded the commission of crime by the appellant.
11. Mr. Dil Muhammad Tarar, learned Advocate Supreme Court appearing on behalf of the State was not in a position to controvert the stand taken by Mr. Khosa that neither there was any background of enmity nor even the families of the parties were living in a charged atmosphere during the relevant time/period and that the immediate cause for the murder remains shrouded in mystery.
12. We find that the evidence against the appellant exclusively consists of the exchange of hot words between the deceased and the appellant on account of the former remaining unsuccessful in obtaining the electric iron from the latter in the morning of the date of occurrence i.e,, 18-8-1989.
The promise of the appellant to return the electric iron to the deceased at 1.30 p.m. Did not materialize as, it is the case of the prosecution itself, the deceased and his brother were attacked by the appellant and his brother in front of the shop of the appellant at 1-30 p.m. On 18-8-1989. The details of the occurrence supplied by P.W .7/Mahmood Ahmed and P.W.6/Muhammad Tufail, when considered alongside the fact that (deceased) Muhammad Ramzan breathed his last immediately after the receipt of fire arms injuries at the hands of the appellant, lead to the irresistible conclusion that there is force in the contention on behalf of the appellant that the immediate cause of the occurrence remains shrouded in mystery. The appellant has made out a case for reduction of sentence from death to imprisonment for life with the consequential increase in the amount of fine as also in the amount of compensation to be paid to the legal heirs of the deceased and for the benefit of section 382, Cr.P.C.
12. The above are our reasons for the short order of even date which reads thus:- "For reasons to be recorded later on, the appeal is allowed to the text that death sentence is converted into life imprisonment. The amount of compensation is increased from Rs,20,000 to Rs,40,000 which is to be paid to the legal heirs of the deceased. In default of payment the appellant will undergo six months' S.I. The fine amount is increased from Rs,5,000 to Rs,10,000, in default of payment the appellant will undergo one year's R.I. The appellant will also be entitled to the benefit of section 382-B, Cr.P.C.