' This judgment will dispose of Criminal Appeal No,139 of 1997 filed by Alam Khan and Muhammad Akram Khan who were convicted and sentenced on 15-3-1997 by the learned Additional Sessions Judge, Sargodha for the murder of Ahmad Nawaz and Muhammad Ramzan. Muhammad Akram Khan appellant was awarded life imprisonment under section 302-B, P.P.C. For causing the death of Muhammad Ramzan with a fine of Rs, one lac and in default to undergo 4 years' R.I. And in case of realization of fine, it was ordered to be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. Was also granted. Alam Khan appellant was convicted under section 302(c), P.P.C.
And sentenced to 10 years' R.I. With a fine of Rs,50,000 as compensation as required under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased Ahmad Nawaz. Ghulam Rasool, complainant, has also filed Criminal Appeal No,203 of 1997 against" the acquittal of Baz Gul, Muzaffar Khan, Muhammad Saeed and Barohi Khan. There is also a Criminal Revision No,120 of 1997 filed by Ghulam Rasool for enhancement of sentences awarded to Muhammad Akram Khan and Alam Khan, appellants in Criminal Appeal No,139 of 1997.
2. Briefly stated facts of the prosecution case were that Ghulam Rasool, complainant, resident of Chak No,65/NB got recorded F.I.R. Exh.P.F. At 4-45 p.m. In Police Station Jhal Chakkian, District Sargodha about an occurrence which took place on the same day at 3-23 p.m. Stating therein that on the same day at 3-23 p.m., he alongwith his brother Muhammad Ramzan got canal water from Nukka situated in Square No,17, Killa No,21, Muhammad Ramzan was standing near the Nukka while Ghulam Rasool, complainant was going to have a round at the Khaal Nasrullah (not produced) son of Muzaffar Khan came there and informed the complainant that his father Muzaffar Khan had asked his co-accused Tawakli Khan, Alam Khan, Barohi Khan, Muhammad Akram and Muhammad Saeed that the sons of Manzoor Khan should not be allowed to get the canal water and if they resist, they should be murdered, Ahmad Nawaz, deceased, had also come near the complainant when Nasrullah injured (not produced) was passing on the information to Ghulam Rasool, complainant, in the meanwhile Muhammad Akram Khan, accused armed with rifle and Alam Khan, accused armed with rifle came from the southern side, Tawakli Khan accused (since dead) and Barohi Khan, accused armed with .12 bore guns came there from the opposite side, Barohi Khan, accused raised Lalkara to the effect that they had come to teach them lesson for causing firing at him and for getting the turn of water allocated in their names, thereafter Muhammad Akram Khan accused fired with his rifle which hit Muhammad Ramzan at the back side of his chest and he fell down, then Alam Khan accused fired which hit Ahmad Nawaz deceased at his back and he fell down, Barohi Khan accused fired which hit Nasrullah at his left buttock and he also fell down, the accused persons thereafter started indiscriminate firing from both the sides, Tawakli Khan also received injuries at the hands of the accused persons and that accused persons lifted Tawakli Khan in an injured condition. The accused persons ran away from the spot. Both the injured Muhammad Ramzan and Ahmad Nawaz died there and then. The motive behind the occurrence was dispute over canal water.
3. After registration of the formal F.I.R., Exh.P.F. Lodged by Ghulam Rasool, complainant, (P.W.7)
Iftikhar Ahmad, S.-I./S.H.O. (P.W.9) went to the spot, collected blood-stained earth from near the dead bodies of Muhammad Ramzan and Ahmad Nawaz which were taken into possession vide memo. Exhs.P.H. And P.J. Respectively. It may be mentioned here that no crime-empty was recovered from the spot. Both the appellants were arrested on 18-11-1993. Alam Khan accused got recovered his .7 mm licensed rifle P.6 which was taken into possession vide memo. Exh.P.J. On 1-12- 1993. Muhammad Akram Khan appellant got recovered .7 mm rifle, P.9 which was taken into possession vide memo. Exh.P.L. On 2-12-1993. Three eye-witness were mentioned in the F.I.R.
Including the complainant but only two were produced, namely, Ghulam Rasool (complainant)
P.W.7 and Gul Sher (P.W.8). Allah Bukhsh another eyewitness was given up as being unnecessary.
4. It may be mentioned here that Muhammad Ramzan deceased was son-in-law of Alam Khan, appellant while Ahmad Nawaz deceased was maternal-nephew of Alam Khan appellant.
5. Mr. M. Asghar Khan Rokhari, learned counsel for Muhammad Akram Khan and Alam. Khan, accused-appellants have read before me the prosecution evidence and the statements of the accused. He submits that in fact Killa No,17, Square No,21 was in possession of Alam Khan, appellant where the occurrence took place, therefore, the deceased party was the aggressor, that according to F.I.R. Alam Khan was armed with rifle .7 mm but after post-mortem examination as pellets were recovered from the dead body, the complainant made a supplementary statement and even improved his statement before the trial Court that Alam Khan was armed with a gun in order to make in line his statement with the post-mortem report to which he was duly confronted and that the motive also was with the complainant party as the stay order was issued in favour of the appellants on 13-9-1993. Also submits that Tawakli deceased was father of Muhammad Akram Khan, accused and real brother of Alam Khan, accused and that Nasrullah an injured witness was never produced and the presumption would be that had he been produced he would not have supported the prosecution case. Learned counsel further submits that recovery of fire-arms is of no corroborative value as no crime-empty was recovered from the spot. He also refers to Exh.D.E.
(Warabandi), Exh.D.F., the application for getting certified copy of the stay order, dated 13-9-1993 and Exh.D.C. Counter-F.I.R. Which is cross-version of the appellants. Learned counsd lastly submits that no case whatsoever is made out against the appell
6. On the other hand, learned counsel for the State assisted by learned counsel for the complainant who has also filed appeal against acquittal of the acquitted accused and a revision for enhancement of the sentences submits that the prosecution has proved its case beyond any shadow of doubt. Further submits that it was the turn of water of the complainant while the appellants armed with fire-arms committed the murder of both the deceased and that the appellants had committed a broad daylight murder in a very cruel manner, the matter was reported promptly without any deliberations and consultation, the ocular account is corroborated by medical evidence, the parties are very closely related and that there is no question of false implication.
7. I have heard learned counsel for the parties and have gone through the evidence recorded by the learned trial Court. In the instant case, Alam Khan appellant who is aged 85 years and was father-in-law of Muhammad Ramzan deceased was stated to be armed with .7 mm rifle and caused a single injury at the back of Ahmad Nawaz deceased but according to the post-mortem report, pellets were recovered from his abdomen and were handed over to the police by the doctor who was examined as P.W.6. Moreover, this fact had been admitted by Iftikhar Ahmad, Investigating Officer (P.W.9) Ghulam Rasool, complainant, while appearing as P.W.7 stated that Alam Khan was armed with a gun and was confronted with Exh.P.F. Where it was not so recorded.
He had improved his statement to make in line with the post-mortem report. No case whatsoever is made out against Alam Khan appellant as there is clear conflict between the ocular account and the medical evidence. He is given the benefit of doubt and is acquitted of the charge. Alam Khan, appellant shall be released forthwith, if not required to be detained in any other case.
8. Muhammad Akram Khan, appellant was armed with a rifle. He had caused fire-arm injury at the back of Muhammad. Ramzan which proved fatal. Both the eye-witnesses produced by the prosecution have implicated him. One person from the side of the appellant namely Tawakli Khan who was father of Muhammad Akram Khan also lost his life. It seems to be a case of free fight when both the parties while armed with fire-arms in order to show their strength attacked on each other. Already a lenient view had been taken by the learned trial Court for the reason that there was no previous enmity between the parties and the fire was not repeated. He is responsible for the death of Muhammad Ramzan. The conviction and sentences of Muhammad Akram Khan, appellant is maintained and his appeal is dismissed, but the benefit of section 382-B, Cr.P.C. Is granted to him.
9. Criminal Appeal No,203. Of 1997 filed against acquittal of the accused persons, namely, Baz Gul, Muzaffar Khan, Muhammad Saeed, and Barohi Khan is dismissed for the reasons recorded above.
Out of the acquitted accused, two are accused of abetment while Barohi Khan caused injury to Nasrullah P.W. Who was not produced by the prosecution.
10. Criminal Revision No,120 of 1997 filed by the complainant for enhancement of sentences of Alam Khan and Muhammad Akram Khan, appellants is also dismissed for the reasons mentioned above.
As no fine under section 302, P.P.C. Can be imposed, the amount of fine imposed on Alam Khan is converted into compensation as required under section 544-A, Cr.P.C. Which shall be paid to the legal heirs of the deceased and in case of default the appellant will undergo S.I. For six months.