ORDER JUDGMKNT I Fil KHAR HUSSAIN CHAUDHRY, .1. - Yaseen, Saleem, Mehboob and Anwar w'ere convicted for offence under Sections 302/149 PPC for causing death of Muhammad Saleem, and Yaseen appellant was awarded death sentence while Saleem, Mahboob and Anwar w'ere awarded imprisonment for life.
All the convicts were directed to pay a fine of Rs.2000 - each, In the event of default to undergo simple imprisonment for six months by judgment dated 20712.1992 passed by Additional Sessions Judge. Rajanpur in case F.I.R. No. 94, dated 11.5.1990 under Sections 302/307/109/148/149 PPC registered at Police Station Fa/.Ilpur, District Rajanpur. r2. Ghulam Na/ik complainant appeared as PW-9. He reaffirmed the narrative contained in the P.I.R.
The complainant was also injured during the incident-. Favyaz Hassan who had been injured in the incident had appeared as PW
10. He corroborated the deposition of Ghulam Nazik PW-9.
13. Ashiq Hussain S.I. Appeared as PW-11. He had partly investigated the case. He had testified about the arrest of accused. He had submitted incomplete challan in the Court.
14. Ghulam Shabhir appeared as PW-13. He supported the version advanced by Ghulam Nazik complainant PW-9 and Favyaz Hassan injured PW-10. He had also witnessed the .Recovery of blood stained earth secured by the police from the place of occurrence vide Memo Ex.PR, the recovery of crime empties P- 6/1-9 by the police from the place of occurrence vide Memo Ex.PR and blood stained Chaddar of Favyaz injured PW vide memo Ex.PT and blood stained Shalwar of Ghulam Nazik injured PW vide memo Ex.PV. The witness attested all the memos. Rest of the evidence was of formal nature.
15. In their examination under Section 342 Cr.P.C, all the accused professed their innocence and pleaded their false implication in the case due to enmity and old litigation pending adjudication between the parties.
16. Learned trial Court believed the prosecution case to the extent of Yaseen, Saleem. Mehboob and Anwar and convicted and sentenced them as noted above. Aman Ullah and Slier Muhammad were given benefit of doubt and acquitted from the case. The convicts find Criminal Appeal No. 335/1992 against the conviction and sentence awarded to them. Criminal Revision Petition No. 47/1993 was find against the acquittal of Aman Ullah and Slier Muhammad and for enhancement of sentence of life imprisonment awarded to Saleem, Mehboob and Anwar to the sentence of death and was directed to be heard alongwith Criminal appeal No. 335/1992. Learned trial Court had also referred the matter under Section 374 Cr.P.C, vide Murder Reference No. 5/1993 for confirmation or otherwise of sentence of death awarded to Yaseen appellant.
17. Learned counsel for the appellant contended that there was long standing enmity between the parties and involvement of appellants in the case was due to that history. It was submitted that occurrence took place during night and no body had seen as to who had assaulted the complainant party and appellants were implicated in the case due to suspicion alone. It was further argued that medical evidence did not support the prosecution case inasmuch as the distance between the points where the accused had find at the victim as given by witnesses was not substantiated by the medical evidence. It was further argued that the assailants were statingly present on the bund whereas injuries on the body and persons of the victim showed that both the parties were at the same level at the time of shooting. It was argued that six of the spent cartridges recovered from the spot matched with a gun recovered at the instance of Mehboob while three spent cartridges did not match with any weapon and there was no corroboration of the allegation levelled against Yaseen. It was argued that recoveries also showed that number of assailants much smaller but the complainant party had chosen to implicate a large number of persons in the criminal case. Benefit of doubt was claimed for the appellants. In the alternative it was prayed that since case against Yaseen was not supported by the evidence of recoveries, the maximum sentence awarded to him was unjustified. Learned counsel for the State assisted by learned counsel for the complainant argued that prosecution case against the appellants stood proved on the strength of evidence led at the trial and as such the appellants were rightly convicted in the case. It was submitted that it was a pre-planned murder and all the accused deserved the same treatment to be given to them.
18. The complainant party arc Baluch while the accused are Pathans. Trib. Find had been going on between the parties for quite some time and the occurrence out of which the present matter arises appears to be one of the series of assaults and counter assaults. The motive namely the enmity between the parties as such is hardly a pointer towards guilt of the appellants-accused in the case.
19. According to complainant he alongwith witnesses had gone to attend circumcision ceremony of son of one Ghafoor Gopang and were returning to their vullage Qaziwala and when they reached near the river spur, the accused armed with Titles started shooting at them after Yaseen had shouted that they would not be left alive. The circumsion ceremony where people from other villages were also invited would have taken place in the after-noon as is customary in the villages because the people after taking of food etc. Are to return to their homes before darkness of the night. The stand of the prosecution that the complainant and others were returning to their village at about Deegar Wela. Therefore, appears to be reasonable. No circumstance to show the contrary was highlighted during the trial and, therefore, the time of occurrence as given by the prosecution is considered to be the time at which the incident had taken place. The complainant and witnesses knew all. The accused since they belonged to the same locality and question of not identifying any of the assailants in the circumstance and particularly keeping in view the time at which the assault was launched, would not arise in the case. The prosecution case was. Proved inter alia by two eye- witnesses namely Ghulam Nazik PW-9 and Fayyaz Hassan PW-10, both were injured during the incident and the injuries to their persons were supported by the medical evidence as well. The presence of witnesses at the spot obviously stood established beyond any reasonable doubt. The defence was unable to elicit anything from the mouth of the prosecution witnesses, which favoured them qua their non-involvement in the case. Having considered the eyewitness account in proper perspective we are of the view that the case against the appellants stood fully established. The argument of learned counsel qua contradiction in the medical evidence and the ocular is quite tenuous. The perusal of the site plan reveals that the complainant and witnesses were present in a find near the river spur and the assailants had also travelled down the spur and at the time of shooting both the parties virtually stood at the same level. There is apparently no contradiction in the medical and ocular account. The medical account supports the prosecution case.
20. Allegation against the accused that they had find at the complainant and witnesses with rifles.
Nine spent casings of .303-bore were recovered from the spot, six of which matched with gun recovered from the possession or disclosure of Mehboob accused. Three spent cartridges did not match with any gun. Recovery of spent cartridges from the spot shows that a large number of weapons were used in the incident. That evidence also does not aversely effect the prosecution case in any manner.
21. After having considered all the facts and circumstances of the prosecution case we are of the view that prosecution had succeeded in proving its case against all the for appellants.
Consequently their conviction under Sections 302/34 PPC is maintained. Yaseen was awarded death penalty. As observed above none of the spent bullet casings recovered from the spot matched with the gun recovered at the instance of Yaseen. The role ascribed to Yaseen thus was not additionally supported by the recoveries, It appears that all the accused had launched attack on the complainant party when both accosted each other and the accused party started shooting at the complainant party as a result of which Muhammad Saleem was hit and later lost his life. The complainant Ghulam Nazik and Fayyaz Hassan PW-10 were also injured in the process. Since it is not possible to determine with any measure of certainty, on account of absence of additional corroborative circumstance, as to which particular accused had fatally shot to death Saleem we consider that sentence of death awarded to Yaseen was unwarranted. His choice as being the main accused apparently was subjective. Keeping in view the background of enmity between the parties, we consider that the sentence of life imprisonment would be appropriate sentence to be awarded to all the convicts. - 22. For the foregoing reasons we maintain the conviction of the convicts under Sections 302/34 PPC. However, sentence of death awarded to Yaseen is converted into imprisonment for life. Sentence of fine imposed on the convicts by the trial Court is al ( maintained.
Benefit of prosecutions of Section 382-B Cr.P.C, shall be extended to the convicts.
23. With the above modification in sentence imposed on Yaseen criminal appeal is dismissed. We have not finding any merit in revision petition, and the same is dismissed.
24. Murder reference is answered in the negative.