' This judgment will dispose of Criminal Appeal No,840 of 1992 filed by Ahmad Subhan alias Bana and Muhammad Arshad and Criminal Appeal No,727 of 1992 filed by Maqsood Ahmad alias Muhammad Abdullah, directed against the judgment, dated 17-9-1992, passed by the learned Additional Sessions Judge, Lahore, whereby he convicted them under section 302/34, P.P.C. And sentenced them to undergo life imprisonment each with fine of Rs,10,000 each, or in default to undergo further one year's R.I. They were also ordered to pay Rs,10,000 each as compensation under section 544-A, Cr.P.C. To the heirs of the deceased or in default to undergo further R.I. For one year. Benefit of section 382-B, Cr.P.C. Was also granted to them.
2. The brief facts as narrated by the complainant, Fazal Elahi P.W.8 are that on 26-10-1987 at about 12-30 p.m. He alongwith his brothers was passing nearby the milk and curd shop of Abdullah alias Dulla accused. Per chance, a chair lying outside the shop tumbled down by striking with hand of Allauddin on which Abdullah accused several abused and reprimanded Allauddin. The matter was patched up for the time being. Later on the complainant and his companions went to the tea shop of Riaz in Chowk Shalimar and sat there. Abdullah alias Dullah armed with revolver, Muhammad Arshad, Ahmad Subhan, Muhammad Ishfaq alias Nanna all armed with daggers, came there and Abdullah fired through his revolver on Allauddin but ineffectively. The accused, however, exhorted, raising Lalkara that Allauddin should be taught a lesson for disgracing him. Thereon accused Muhammad Ishfaq gave a dagger blow on the left hand of Allauddin. The blood therefrom started oozing, thereafter Muhammad Arshad and Bhana accused caused one after the other injuries to Allauddin on his middle and upper parts of left thigh. Allauddin fell down after receiving injuries.
3. The motive behind this occurrence was that just before the occurrence a quarrel between the accused party and the complainant party on touching the chair with the hand of Allauddin deceased had taken place.
4. The matter was reported to police. Muhammad Nawaz, S.-I. (P.W.11) recorded the report Exh.P.H.
Of the complainant on 26-10-1987 at 2-40 p.m. Whereupon formal F.I.R. Exh.P.H./1 was lodged on the same day at 2-45 p.m. The S.-I. After completing all necessary formalities went to the spot, where he prepared the rough sketch Exh.P.J., secured blood-stained earth vide memo. Exh.P.F. And recorded the statements of the P.Ws. Under section 161, Cr.P.C. He also took into possession the clothes of the injured through memo. Exh.P.A. He also added section 302, P.P.C. After his death in the hospital and prepared injury statement Exh.P.L., inquest report Exh.P.M. He arrested Maqsood Ahmad on 8-11-1987 and got recovered from him revolver Exh.P.4 with two live bullers Exhs.P.6-6 vide memo. Exh.P.G. Abdul Haq P.W.14 arrested Ahmad Subhan accused and at his instance got recovered dagger P.7 vide memo. Exh.P.N. He also arrested Ishfaq accused on 27-3-1988 and got recovered a dagger at his instance Exh.P.8 vide memo. Exh.P.P. Muhammad Arshad accused was arrested on 18-8-1990.
5.. Prosecution in order to prove its case has produced as many as 16 Witnesses and closed his case after tendering Chemical Examiner's Report in regard to blood-stained earth, report in regard to Shalwar of deceased Exh.P.R. In respect of daggers of accused Muhammad Ishfaq and Subhan, Exh.P.S. Of the Serologist, in regard to the blood-stained earth and Shalwar of Allauddin Exh.P.T. And report in respect of daggers of accused Muhammad I,shfaq and Subhan Exh.P.U.
6. It is important to mention here that Muhammad Ashfaque alias Nanna, who was murdered before the announcement of judgment by the learned trial Court, is not the appellant here.
7. Learned counsel for the appellant Maqsood Ahmad submits that he was not named and in fact one Abdullah was named in the F.I.R. He further submits that only ineffective firing is attributed to him and not a single empty was recovered from the spot. He adds that occurrence, if any, had taken place at the spur of the moment and there was no previous background of enmity between the parties. He further submits that recovery of revolver has been planted on the appellant Maqsood Ahmad and the same has also been disbelieved by the learned trial Court.
8. Learned counsel appearing on behalf of Ahmad Subhan and Muhammad Arshad appellants submits that only one related witness namely Fazal Elahi, who is the first informant in this case and also a chance witness in this case, has supported the prosecution case. Learned counsel further submits that one P.W.9 Asad Mehmood and P.W.8 Fazal Elahi complainant did not name any of the appellant, although P.W.8 was declared hostile. Learned counsel further submits that Muhammad Ali who was the real brother of the deceased was given up and he was a bad character of the area and was arrayed as accused in many criminal cases of different type. Learned counsel further submits that the occurrence took place in front df Riaz Hotel owned by Muhammad Riaz who was a natural witness who was not cited as prosecution witness but he was produced as D.W.1 from defence side and he has not supported the prosecution case and stated that in fact it was one kbdullah who was servant of Allauddin deceased who had attacked and caused injuries with Chhuri to the deceased. Learned counsel further submits that recoveries got effected from both the appellants have been disbelieved by the learned trial Court. He lastly submits that the occurrence if any, had taken place at the spur of the moment and the case if any, would fall under section 304, Part II, P.P.C. That both the injuries attributed to the present appellants according to Dr. Shehzad Leghari P.W.5, who had conducted the post-mortem examination on the dead body of the deceased, were found to be simple in nature and were on non-vital parts of the deceased. Learned counsel for the appellants submits that the appellants have already undergone 7 years of sentence.
9. On the other hand learned State Counsel while supporting the prosecution case and rebutting the submissions made by the learned counsel for the appellants submits that appellants are named in the F.I.R. They have been named by Fazal Elahi P.W.8 complainant, who has no previous background of enmity with the appellants, that it was a broad daylight occurrence and the Court has to see the quality of evidence and not the quantity of evidence. He supports the judgment of the learned trial Court.
10. I have heard the learned counsel for the parties and have also gone through the record. In the instant case there were three injuries on the person of the deceased, according to the medico- legal report conducted during his lifetime and post-mortem examination conducted after his death fatal injury was attributed to one Muhammad Ishfaque alias Nanna who was murdered before the announcement of the judgment in the instant case by the learned trial Court.
11. Now I left with the case of three appellants who are before me. As far as Maqsood Ahmad appellant is concerned, he is not named in the F.I.R. Even no injury is attributed to him. He was alleged to have fired two shots but that is not proved from the record as no crime-empty was recovered from the spot. The recovery of crime weapon made on the pointation of the appellant Maqsood Ahmad was disbelieved by the trial Court. There is no corroborative piece of evidence against him. As far as his case is concerned while extending benefit of doubt I, accept appeal to his extent and acquit him from the charge. He is on bail, he shall be discharged from his bail bonds.
12. As far as Ahmad Subhan and Muhammad Arshad appellants are concerned, they were attributed specific injuries each on the non-vital parts of the deceased. Fazal Elahi complainant P.W.8 has named them with specific roles in the F.I.R. Fazal Elahi complainant has also admitted in his statement before the learned trial Court that there was no previous background of enmity between him and the appellants. I have gone through the record particularly, statement of Fazal Elahi P.W.8, it seems that the occurrence had taken place at the spur of the moment and it comes within the ambit of section 304, P.P.C. As this case was registered in 1987 before the enforcement of Qisas and Diyat Ordinance, 1991, so in my considered view the occurrence had taken place at the spur of the moment and the appellants caused injuries on the different parts of the body of the deceased and doctor declared injuries Nos.2 and 3 landed on the non-vital parts of the deceased, simple in nature. According to the record and as per submissions made by the learned counsel for the appellants both the appellants have already undergone about 6-1/2 years of sentence. As far as this case is concerned, it relates to year 1987 and it would not be proper to send them now in jail.
Keeping in view all the circumstances of the case and submission made by the learned counsel for the appellants I am of the considered view that as the occurrence in this case was taken place at the spur of the moment, this case falls under section 304, P.P.C., Part II, and the sentence which the appellants has already undergone is treated to be sufficient to meet the ends of justice. Sentence of fine and compensation is also set aside. With this modification in the conviction and sentence this appeal is disposed of. Appellants are on bail, and are discharged from their bail bonds.