' BASHIR A. MUJAHID, J.---This judgment will dispose of Murder Reference No, 202 of 1997, Criminal Appeal No, 273 of 1997 and Criminal Appeal No, 295 of 1997 as these are the outcome of one and the same judgment.
2. Appellants Ghulam Sarwar, Ghulam Farid and Bashir Ahmad were tried under section 302/324/148/149, P.P.C. For the commission of murder of Qadir Bakhsh and causing injuries on the person of P. Ws. Alongwith their co-accused and were convicted vide impugned judgment, dated 2-8-1997 and were sentenced as under:- ' Ghulam Sarwar accused/appellant.
' He was sentenced to death under section 302/149, P.P.C. He was also sentenced to 7 years' R.I.
Under section 324, P.P.C. He was also ordered to pay compensation in the sum of Rs,50,000 to the heirs of the deceased and in default to further unaergo R.I. For six months. The amount shall be recovered as arrears of land revenue.
' Ghulam Farid and Bashir accused/appellants.
' They were sentenced to 4 years' R.I. Under section 324/34, P.P.C.
' All the accused were ordered to pay Daman Rs,5,000 each and in default each accused shall suffer one month's R.I. And the amount shall be recovered from them as arrears of land revenue.
2. The brief facts as narrated in the F.I.R. Exh. PA are that on 25-4-1995 at 12-00 noon Muhammad Bakhsh complainant, his brother Qadir Bakhsh (deceased) his cousin Ahmad Yar injured P.W.2, his nephew and Umar Wada injured P.W.3 after cutting wheat crop were awaiting for their meal under a tree in their Haveli when all of a sudden a wagon came to stop about three acres away from their house, therefrom three brothers namely Ghulam Sarwar accused armed with gun, Atta Muhammad (absconder) armed with gun, Ranjha (absconder) armed with carbine and other co- accused Ghulam Farid armed with Sota and Bashir co-accused empty handed alighted. They broke into the complainant's Haveli. Ghulam Sarwar and Ranjha raised Lalkara that lesson would be tought for abduction of Mst. Kalsoom Mai daughter of Ranjha. The complainant and his companion raised noise to which Ashiq P.W. (given up) and Rafiq P.W. (given up) were attracted and in their view Ghulam Sarwar accused fired a shot on Qadir Bakhsh (since deceased) hitting him on his right ribs. Ranjha (absconder accused fired a shot hitting Ahmad Yar P.W.2 on his thigh.
Ata Muhammad accused fired a shot hitting Qadir Bakhsh on his head. Then the entire accused fired shots one after another. On coming of neighbours on the spot the accused made their escape good while firing. Qadir Bashsh, Ahmad Yar and Umer Wada the three injured were then carried to D.H.Q. Lodhran and therefrom after first aid, they were referred to B.V.H. Bahawalpur where Qadir Bakhsh succumbed to his injuries and his dead body was brought back to D.H.Q. Hospital, Lodhran for its post-mortem examination. The motive stated is the abduction of Mst. Kalsoom daughter of Ranjha, the first informant P.W.1 who later on married her. All the accused in furtherance of their common intention murdered Qadir Bakhsh and injured Ahmad Yar and Umer Wada to revenge the abduction and marriage of Mst. Kalsoom.
3. On 25-4-1995 at about 5 p.m. After registration of the case the Investigating Officer arrived at Civil Hospital, Lodhran and prepared inquest report Exh.PC and injury statement Exh.PC/I and sent the dead body of Qadir Bakhsh for post-mortem examination:
4. Dr. Abdul Rashid Faradi, S.M.O., D.H.Q. Lodhran conducted the post-mortem examination on the dead-body of Qadir Baldish and found the following injuries:---
(1) A fire-arm wound of enterence on the right tempre tendibular region 2 c.m. In front of right ear circular in shape 1 c.m. In diameter with lacerated and blackened margins going deep.
(2) A fire-arm wound of enterence in the right interior axillary fold around in shape 1 c.m. In diameter margin lacerated. Blackened going deep into the underline muscles.
(3) A fire-arm wound enterence on the right lower chest circular in shape 1 c.m. In diameter margins lacerated in black in colour. On dissection the subcutantus tissues, muscle perforated.
Liver was perforated. Abdomenal cavity containing blood. A bullet recovered from lower lobe on the left lungs which is injured. Blood also present in chest cavity.
(4) A fire-arm wound of enterence on the right side of the right buttock, circular in shape 1 c.m. In diameter going deep, holes are present on the corresponding on the Qamiz.
' In his opinion the death was caused due to haemorrhage and shock.
5. On the same day Dr. Nasir Javid P.W. 14, medically examined Ahmad Yar injured and he found the following injuries on his person:-
(1) A lacerated wound 0.75 c.m. x 0.75 c.m. On postero medial of middle of back of right leg.
(2) A lacerated wound of 1-1/2 c.m. x 1-1/2 c.m. Latero posterior of middle of right leg.
' Both the injuries were caused by fire-arm.
' On the same day the same doctor also medically examined Umer Wada and found the following injuries on his person:-
(1) A lacerated wound 0.75 c.m. x 0.75 c.m. On dorsem of left hand 2 c.m. Below knuckle of left little finger and was swollen and bleeding was there.
6. The Investigating Officer also took into possession the blood-stained clothes of the deceased. He took into possession phial containing pellets vide memo. Exh. PH. He recorded the statements of the P.Ws. And then proceeded to the place of occurrence. He inspected the site and collected 8 empties cartridges of 12 bore gun P5/1 to P8 and empty cartridges of Pistol P6 and took them into possession after making them into a sealed parcel vide memo. Exh. PI. He also took into possession blood-stained earth vide memo. Exh. PJ. Then the investigation was entrusted to Nazir Hussain Shah, S.I. Who arrested the accused/appellants.
7. On 4-6-1994 Ghulam Sarwar appellant while in police custody led to the recovery of gun .12 bore which was taken into possession vide memo, Exh.PD. He also obtained the warrants of arrest of Ranjha and Atta Muhammad accused but they were not traceable and were got declared proclaimed offenders. He completed the investigation and the appellants were challaned. He also placed on record the report of Chemical Examiner Exh. PM, of Serologist Exh. PN and that of Forensic Science Laboratory Exh. PO.
8. The accused/appellants denied the allegations and claimed trial.
9. During the trial the prosecution examined as many as 13 witnesses. P.W.1 Muhammad Bakhsh is the complainant and eye-witness of the occurrence. He has supported the F.I.R. And proved the motive. P.W.2 Ahmad Yar appeared as an injured eye-witness. He also supported the prosecutions version as an eye-witness. P.W.7 Nazir Hussain and Fazal Hussain P.W.13 investigated the case. The rest of the witnesses were of formal nature.
10. The accused-appellants were examined under section 342, Cr.P.C. They denied the charge. In response to a question that why this case against him, Ghulam Sarwar appellant made the following reply.
' The P.Ws. Have deposed against them falsely. They are innocent.
' The same was the reply of Ghulam Farid and Bashir Ahmad accused/appellants.
11. After conclusion of the trial the appellants were adjudged guilty and were convicted and sentenced as stated above.
12. Learned counsel for the appellants has raised the following contentions in support of the appeal:--
(1) On behalf of Bashir Ahmad and Ghulam Farid, both of them were declared innocent during the investigation and nothing was recovered from them.
(2) Bashir Ahmad appellant was admittedly empty-handed and had not played and any active role in the occurrence.
(3) Ghulam Farid appellant in F.I.R. Is stated to be armed with rifle but the alleged eye-witnesses in their statement stated that he was armed with pistol and they were duly confronted for their dishonest improvement. The alleged weapon of offence was not recovered at his instance.
(4) The parties are related to each other and the motive is based on family honour. Ghulam Sarwar appellant is entitled for lesser penalty because the alleged occurrence took place due to family honour. Even in the F.I.R. It is admitted that Mst. Kalsoom daughter of Ranjha co-accused the real niece of Ghulam Sarwar was abducted by Fayyaz Hussain the younger brother of the complainant.
10. The learned State counsel assisted by the learned counsel for the complainant has opposed the acceptance of appeal stating that F.I.R. Was prompt, active role has been attributed to all the three appellants. All the accused arrived at the place of occurrence with common intention and committed' the murder of Ghulam Qadir, while Bashir Ahmad and Ghulam Farid are vicariously liable for the commission of murder.
11. We have considered the arguments of the learned counsel for the parties and have perused the record.
12. Ghulam Sarwar appellant caused injuries while armed with .12 bore gun to Qadir Baldish deceased. The gun was recovered at his instance. The Report of Chemical Examiner, Serologist and that of Forensic Science Laboratory are in positive. The ocular account has been supported by the medical evidence. The F.I.R. Was prompt. The ocular account was also supported by the complainant and Ahmad Yar injured P.W. Therefore, conviction of Ghulam Sarwar is maintained.
However, the alleged occurrence took place due to family honour as Mst. Kalsoom real niece of Ghulam Sarwar was abducted by Fayyaz Hussain real brother of the complainant. This is a case of family honour, therefore, he deserves leniency and his sentence is converted from death to imprisonment for life. He is also allowed the benefit of section 382-B, Cr.P.C.
13. The case of Ghulam Farid and Bashir Ahmad appellants is distinguishable. Ghulam Farid although was allegedly armed with rifle as per F.I.R. But as per statements of eye-witnesses while they were examined during the trial they stated that he was armed with pistol but the same was not recovered at his instance. He is not alleged to have caused any injury to the deceased or the injured P. Ws. Bashir Ahmad appellant was empty-handed and he has not actively participated in the occurrence. They were declared innocent in the investigation. Their involvement in the case is doubtful and the benefit of doubt is extended to them. They are acquitted of the charge. Criminal Appeal No,273 of .1997 is allowed. They shall be released forthwith if not required in any other case.
14. Criminal Appeal No,295 of 1997 filed on behalf of Ghulam Sarwar is dismissed with the above modification.
15. The Murder Reference is answered in negative.
16. Any observation made in this judgment will not affect the case of Ranjha and Atta Muhammad accused during the trial.