IFTIRHAR HUSSAIN CHAUDHRY, J.- Noor' Elahi and Amir Hussain were convicted for offence under Section 302/34. PPC and Noor Elahi was awarded death sentence while Amir Hussain was awarded imprisonment for life. The convicts were ordered to pay a fine of Rs.5000/- each, ln default in payment of fine to undergo for two years' R.I. Each as compensation to die legal heirs of the deceased by judgment dated 6.11.1993 passed by Sessions Judge, .Mianwali in case FIR No. 69, dated 26.6.1992 under Sections 302/148/149/34, PPC registered at Police Station Kundian District Mianwali.
2. The prosecution case as unveiled by Muhammad Sultan complainant PW7 was to the effect that on the day of occurrence at about 5.30 p.m. The complainant alongwith his brother Muhammad Amir and-Muhammad Ramzan were returning to his house from the Dera of his maternal uncle-Ali Muhammad. Muhammad Amir was a little ahead of them! When they reached the metalled road, Muhammad Zaman son of Sultan Ahmad who was driving tractor, trolley, tried to run over Muhammad Amir. Muhammad Amir in order to save himself, came on the side of the road, ln the meantime Noor Elahi. Amir Hussain armed with 12 bore pistol, Ahmad Hassan carrying a hatchet.
Sultan Ahmad. Raza Muhammad and Dost Muhammad son of Noor Elahi carrying clubs while raising lalkara emerged there and attacked them. Noor Elahi fired a shot, which hit on the abdomen of Muhammad Amir who fell down. Aniir Hussain fired a shot with 12-bore pistol, which hit on the right arm of Muhammad Amir. Shot fired by Noor Elahi hit on the right side of abdomen of the deceased. Later die accused while firing in the air went to their house in their tractor trolley.
Motive behind the occurrence was that the complainant party injured Amir Hassan, etc. And the accused in order to take avenge murdered Muhammad Amir in furtherance of their common intention.
3. The accused were found guilty and were sent up to fact trial in the- Court of Sessions Judge, Mianwali. The prosecution examined as many as 10 witnesses to prove its. Case.
4. Dr. Munawar Hussain Tabassum, PW9 on 28.6.1992 at 8.15 p.m. Had medically examined Muhammad Amir son of Muhammad Hussain and found the following injuries on his person.
(1) Three entry wounds on the flexure aspect of right fore-arm, each ((Fraction)) cm bone deep.
Those were in a straight line. Proximal to rightwrist, and the distance between each was 2 to 3 cm and 11 cm from the wrist joint.
(2) Two exist wounds, each 3/4 cm. 3 4 on the external aspect of right fore-arm separated by 5 cm.
8 cm proximal to wrist.
(3) A wound of entry on the left side of abdomen. 4.Cms I cm, 8 cm on the suprolatro. To umbilicus.
3 cm from the tnid line which was muscle deep.
(4) A lacerated oval wound on the left abdomen 4 cm x 1 cm, 3 cm from the suprolatro to the umbilicus, which was muscle deep.
(5) A fire-arm muscle deep lacerated oval wound on the right abdomen, 4- cm. V2 cm, 5-cm suprolatro to the umbilicus.
(6) An oval wound of entry on the right abdomen cm in thesuprolatro to umbilicus at a distance of 2 cm from injury No. 5. It was muscle deep and 4 cm from the mid line.
(7) A wound of entry on the right lateral abdomen cm, X : cm. 9 cm suprolatero to right anterior superior iliac spine. It was muscle deep.
(8) A fire-arms oval deep muscle deep 2-cm 'A cm, 4 cm below injury No.7.
5. Dr. Naimat Ullah Khan PW-6 on 14.7.1992 at 12.45 p.m. Conducted post-mortem examination on the dead-body of Muhammad Amir and noted the following injuries:.
(1) A pursed abdomen wound 8x4. Cm in the mid line with 0.1 cm within periphery over the front of the abdomen, five stitches were present in the wound. Large intestine were coming out of the wound.
(2) A fire-arm wound 2 cm x I V2 cm over the front of left upper abdomen, 4 cm from the mid line and 5 cm below left subcostal margin.
(3) A fire-arm wound of entrance I /: cm x I cm on the right side of abdomen, 4 cm from the mid line and 5 cm from the anterior superior iliac crest.
(4) Fire-arm grazing wound w'itli stabbing on the front of right abdomen, 4 cm below the subcostal margin.Cr.C. 161
(5) A fire-arm wound 3 cm x '/: cm over the front' of left abdomen. 4 cm from the interior medial to injury No. 2.
(6) Two fire-arm wounds 1 x I V: cm in average over the side-of* right abdomen, 3 cm apart to each other, l2 cm from axilla.
(7) A big wound 4-cm x 2 cm over the front of right lower forearm with muscles visible and lacerated,
6. The injuries were ante-mortem and caused by fire-arm. Probable time between injuries and death was about I6 days and betwccivdeath and post-mortem was 8 to 10 hours.
7. Ehsan Ullah Khan. F.C, PW1, Muhammad Amir, Constable PW2, Hafeez Ullah, H.C. PW3, Wazir Khan, H.C. PW4, Mahammad Ramzan, Patwari PW5. Muhammad Sultan complainant PW7, Muhammad Ramzan PW8 and Muhammad Saeed, Additional SHO/Investigating Officer appeared as PW10.
8. Hafeez Ullah, H.C. PW3 witnessed the recovery of gun PI, hatchet P2, and clubs P3 and P4 which were recovered at the instance "of Noor Elahi, Ahmad Hassan and Dost Muhammad accused respectively vide memos. Ex.PB. Ex.PC and Ex.PD. The witness attested all the memos. Muhammad Ramzan Patwari prepared site plan Ex.PG and Ex:PG/l.
9. The ocular account was furnished by Muhammad Ramzan complainant PW7 and Muhammad Ramzan, the eye-witness PWS.
10. Muhammad Saeed, Additional SHO/Investigating Officer PW10 testified about the various steps taken by him during investigation.
11. The accused when examined under Section 342, Cr.P.C, denied the prosecution case against them in totality and claimed that they were involved in the case due to enmity. Noor Elahi accused took the following stand: "The witnesses have deposed against me due to enmity. After the registration of the case against Habib Ullah, etc. Under Section 307, PPC two criminal cases were registered against us for causing injuries to Arrain Ullah son of Ali Muhammad, etc. And the two cases were fixed on the day of occurrence. My sister Mst Mehrai was married to the deceased and deceased's sister is ray wife.
We had no enmity with the deceased. Qn the day of occurrence. 1 and ray other family members had. Come to Mianwali to attend the Courts and it! Jhe evening when we returned home, Raza Muhammad my son told me that aim Maghrib prayer he was bringing tractor trolley loaded with Kundar from Chashtna Barrage to a brick kiln alongwith some labourers when Ali Muhamtnad, Habib Ullah, Ramzan and deceased launched attack and started firing at the trolley and their shots hit the trolley. The aggression was retaliated by exercising the right of private defence, which result into the injuries of the deceased. I never participated in the occurrence." The remaining accused adopted the statement of Noor Elahi accused.K). Learned trial Court believed the prosecution case to the extent of Noor Elahi and Amir Hussain and convicted and sentenced them as noted above.
Ahmad Hassan. Raza, Muhammad, Dost Muhammad and Muhammad Zaman were given benefit of doubt and acquitted from the case. Judgment dated 6.11.1993 of Sessions Judge. Mianwali appealed against through Criminal Appeal No. 709/1993. Criminal Revision No. 560/1993 was filed by the complainant against acquittal of Ahmad Hassan, Raza Muhammad, Dost Muhammad and Muhammad Zamatv and was directed to be heard alpngwith Criminal Appeal No. 709/1998.
Learned trial Court had also referred the matter under Section 374, Cr.P.C, vide Murder Reference No. 313/1993 for confirmation or otherwise of sentence of death awarded to Noor Elahi.
11. Learned counsel for the appellants contended that injuries on the body of the deceased were result of a single shot and the injuries were not result of three separate fires and complainant chest to implicate a large number of accused- by assigning artificial roles to them, lt was submilted that truthfulness of the witnesses was demolished by the fact that they were disbelieved to-the extent of majority of the accused and there was no guarantee in these circumstances that they were narrators of the correct facts, lt was submitted that the witnesses statingly were present with the deceased and if they were fired at by two of the appellants; the complainant and other eye- witnesses in all likelihood would have been also injured alongwith the deceased. It was submitted that hostility between the parties existed and complainant could implicate the present appellants falsely and no implicit reliance could be placed on the testimony of such witnesses. It was also argued that pellets marks were found on the trolley being pulled by the tractor being driven by Raza Muhammad and no explanation was furnished-by the prosecution as to- how these marks were caused which meant that correct version- of the incident, was not brought forth and incident as a matter of fact took place in dite manner as datmed by Raza Muhammad. Leamed counsel for State on the other hand submitted that it was a pre-planned murder, the accused tried in the first instance to run over the deceased and later upon firing on then fatally hitting Muhammad Amir,, it was submitted that it was a daytime occurrence having taken place before sunset in the month of June and the entire village must have witnessed the occurrence, lt was submitted that both the accused had fired effectively at the deceased and, therefore, they were rightly convicted by the trial Court, lt was also argued that Amir Hassan real brother of Noor Elahi had also fired at deceased. He deserved the same treatment to be given and sentence awarded to him ought to be enhanced.
12. Parties are related to one another. Sister.Of Noor Elahi was married to deceased while sister of deceased was wife of Noor Elahi but hostility did exist between the parties as is evidenced by registration of cross cases between the parties previously. The evidence of motive thus, in the present case is not of much significance.
13. Muhammad Sultan PW7 and Muhammad Ramzan PWS in this case furnish the ocular account.
According to them the accused who came after them in a tractor-trolley tried to over run them and then all six of the accused launched an attack on them. Noor Elahi fired at the deceased twice while Amir Hassan alleged fired at the deceased with a 12-bore pistol. Deceased was fired at from a distance of three karams or about 5/6 yards. A single shot fired from fight side of the deceased could have caused all the injuries on the body of the deceased. The' spread of pellets, the nature of wounds all lead to this conclusion. According to Dr., Munawar Hussain PW9 who had medically examined Muhammad Amir on28.6.1992 at 8.15 p.m. Later deceased, was having two injuries on right fore-arm. Injury No. 1 was found to be the entry wound while injury No. 2 consisted of two exit wounds. These existing pellets further caused injury No. 3, as both these injuries are located in the same line and are almost proximate to one another. Role ascribed to Amir Hassan appellant is thus behed by the medical evidence. If the accused had: fired three shot's at the deceased as alleged, with soft bore weapons using l2 bore cartridges, the number of injuries on the body of the deceased would have been much larger. The number of injuries, the locale and the spread of charge/pellets all show that not more than one shot was fired at the deceased. The prosecution case that a larger number of shots were fired at the deceased is untenable, un-corroborated and we, therefore, do not accept it as true.
14. The occurrence in this case took place before sunset and Muhammad Amir in injured condition was examined at hospital at 8.15 p.m. The time of incident which practically has been admitted by the defence as well such that the occurrence could not have gone unwitnessed. Even the defence had admitted that incident did take place though a different version has been advanced. We have scrutinized both the versions with care and found that stand of both the parties did not consist of the whole truth. Both the parties minimized their own roles in the incident and. Brought forward a story which most suited them. Prosecution claims that as may as six accused assaulted them and in case the complainant party was unarmed and wer^ at the mercy of assailants, the complainant and witnesses too would have received if not fire-arm injuries at least blunt weapon injuries would have been there. The complainant and witnesses never stated that they took shelter when the accused opened attack on them. On the other hand Raza Muhammad claimed that he was transporting a load of reeds (Kundar) when the accused attacked hint and fired at him. Raza Muhammad was perched a-top a tractor and would have been a sitting duck for the assailants and in all likelihood the assailants would have found the target. Tractor itself would have been hit by the shot fired but in this case pellets marks were located on the back side of the trolley which was loaded with reeds meaning thereby that some body had fired at Raza Muhammad from the side or from behind. The defence version does not fit into picture either.
12. Having examined the record with care we are of the view that Noor Elahi. And the complainant party accosted each other while on their way to village. There was an exchange of firing between them. Muhammad Amir was hit at the hands of Noor Elahi and the complainant party also fired at the accused resulting into creating marks on the trolley in which the accused were going to their village. Noor Elahi is closely rehated to the complainant party. He was brother-in-law of the deceased while deceased was also brother-in-law of Noor Elahi, therefore, he could not have substituted for the real assailants. Prosecution case against Noor Elahi to the extent that he had fired at and had injured Muhammad Amir is believable and to the extent of his involvement there is no doubt in the prosecution version.
13. For the foregoing reasons we maintain the conviction of Noor Elahi lor offence under. 'Section 302(b) PPC for causing the death of Muhammad Amir deceased. As observed above there was exchange of firing between the parties, and in case the complainant parly had initiated (he occurrence, which possibility could exist, awarding of maximum sentence of death would be unwarranted. The sentence of death imposed on Noor Elahi for that reason, is converted into imprisonment for life. He shall pay a sum of Rs. One Lac to the legal heirs of the deceased as compensation under Section 544-A, Cr.P.C. The amount of compensation to be recovered from Noor Elahi as-arrears of land revenue. Noor Elahi convict shall be given benefit of provisions of Section 382-B, Cr.P.C.
14. Involvement of Amir Hassan in the case is not free from doubt. Appeal, to his extent is allowed and he is acquitted from the case.
15. Criminal revision petition is dismissed.16. Murder reference is answered in the negative.