' ASIF SAEED KHAN KHOSA, J.--- Muhammad Iqbal appellant was convicted by the learned Additional Sessions Judge, Khanewal vide judgment, dated 25-6-1996 for an offence under section 302(b), P.P.C. And was sentenced to death. He was also directed to pay a sum of Rs,20,000 as compensation to the heirs of Muhammad Anwar deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to under R.I. For six months. Muhammad lqbal appellant was also convicted for an offence under section 324, P.P.C. And was sentenced to R.I. For five years and a fine of Rs,5,000 or in default of payment thereof to undergo R.I. For three months.
However, through the same judgment Muhammad-Iqbal appellant's co-accused Muhammad Nazir was acquitted by the learned trial Court by extending the benefit of doubt to him.
Muhammad Iqbal convict has challenged his convictions and sentences before this Court through Criminal Appeal No,194 of 1996. Muhammad Umar complainant has challenged the acquittal of Muhammad Nazir accused before this Court through Criminal Appeal No,230 of 1996 and has also sought enhancement of the sentences of Muhammad Iqbal convict through Criminal Revision No,103 of 1996. We have heard all these matters alongwith Murder Reference No,222 of 1996 seeking confirmation of the sentence of death passed against Muhammad Iqbal. We propose to decide all these matters together through the present consolidated judgment.
2. The prosecution story narrated in the F.I.R. Was that Muhammad Umar complainant was an agriculturist by profession and was a resident, of Chak No,53/10-R situated within the area of Police Station Jahanian, District Khanewal. At about 1-30 p.m. On 3-3-1995 the complainant and his brothers Umar Farooq and Faqir Khan were standing in front of the shop of one Nasim Gul in their village and some children were playing the game of Lottery near them in the street. Muhammad Anwar, another brother of the complainant who had recently come to the village on leave from the Army, was also standing near the children at that time. At about 1-30 p.m. Muhammad Iqbal appellant came there on a car and put a lot of money on bet in that Lottery. Muhammad Anwar deceased advised the appellant not to bet so much money on a mere lottery of children. Upon that an altercation started between the appellant and the deceased. Then within the view of the complainant and others Muhammad Nazir accused, who was standing close to the appellant, lent the appellant his pistol after some consultation between them. Thereafter, Muhammad Iqbal appellant fired a shot at the left thigh of Muhammad Anwar deceased which went through and through the deceased's thigh and bit a four years old boy named Anees-ur Rehman on his left ankle. Muhammad Anwar deceased then turned to pick up Annees-ur-Rehman when Muhammad Iqbal appellant fired at him for the second time hitting him at the back of his left shoulder.
Muhammad Anwar fell down upon receipt of those injuries and died at the spot. The complainant and others tried to apprehend Muhammad Iqbal and Muhammad Nazir accused but they succeeded to run away from the place of occurrence. The motive set up in the F.I.R. Was that Muhammad Anwar deceased had advised Muhammad lqbal appellant not to put a lot of money on bet in the lottery which had led to an altercation between them. Muhammad lqbal appellant had felt offended due to that insult and he had avenged the same by killing Muhammad Anwar and injuring Anees-ur-Rehman with the abetment of Muhammad Nazir accused.
3. Leaving, the dead body of Muhammad Anwar at the place of occurrence in the care of his brothers Umar Farooq and Faqir Khan the complainant proceeded to report the matter to the local police. He went to Police Station Jahanian, District Khanewal and lodged F.I.R. No,63 which was recorded by Muhammad Mansha, S.-I. (P.W.8) at"2-50 p.m. On the same day for offences under section 302/324/34, P.P.C.
4. After recording the statement of the complainant Muhammad Mansha, S.-L (P.W.8) took up the investigation of this case, proceeded to the place of occurrence, inspected the same, prepared a rough site plan thereof, prepared the injury statement and inquest report qua the dead body, of Muhammad Anwar deceased and sent the dead body to the mortuary for autopsy. He also took into possession blood-stained earth, two crime empties and a motor car from the place of occurrence and recorded the statements of witnesses.
5. Medico-legal examination of the injured Anees-ur-Rehman was conducted by Dr. Muhammad Hanif. Bhatti (P.W.4) at 5-00 p.m. On 3-3-1995 who found two injuries on his person which had been caused by fire-arm within a duration of 4 to 6 hours. Both the injuries were collectively declared to be grievous.
6. Post-mortem examination of the dead body of Muhammad Anwar was conducted by Dr. Muhammad Hanif Bhatti (P.W.4) at 9-00 a.m. On 4-3-1995. He had found three injuries on the dead body which were all ante-mortem and caused by fire-arm. The cause of death was given by him as severe haemorrhage and shock and brain death due to injury No,1 which was sufficient to cause death in the ordinary course of nature. In the opinion of the doctor the time elapsing between injuries and death waas immediate whereas the time elapsing between the death and post- mortem examination was within 19 to 30 hours.
7. After the post-mortem examination of the deceased Muhammad Mansha, S.-I. (P.W.8), the Investigating Officer, secured the last-worn clothes of the deceased. He then got a formal site plan of the place of occurrence prepared by a draftsman. He arrested Muhammad Iqbal appellant on 12-3-1995 and on 14-3-1995 he recovered a pistol from him. Muhammad Nazir accused was arrested by him on 22-3-1995. Thereafter, he completed the other formalities, finalized his investigation and submitted a challan in respect of this case.
8. At the commencement of the trial the learned trial Court framed a Charge with two heads under sections 302/334 and 324/34, P.P.C. Against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.
9. During the trial the prosecution produced as many as eight witnesses in support of its case against the appellant and his co-accused. Muhammad Umar complainant (P.W.6) and Umar Farooq (P.W.7) furnished the ocular account of the incident. The motive set up by the prosecution was also stated by the same witnesses. Dr. Muhammad Hand Bhatti (P.W.4) provided the medical evidence. Shaukat Ali, Constable (P.W.1) deposed about the recovery of pistol affected from Muhammad Iqbal appellant. Muhammad Mansha, S.-I. (P.W.8) stated about various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
10. In his statement recorded under section 342, Cr.P.C. Muhammad Iqbal appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He maintained that he had been falsely implicated in this case due to enmity nursed against him by the complainant and the eye-witnesses. While answering a question as to why he had been implicated in this case Muhammad Iqbal appellant had stated as follows:-- "Muhammad Umar complainant and his brother are inimical towards me as Muhammad Umar complainant had lodged a case F.I.R. No,203 of 1987, at Police Station Jahanian against Yaqoob Khan and Abdul Hannan. I myself and the my family members supported Yaqoob Khan in connection with his innocence in the said case and case was got cancelled being false one, due to that support the complainant and his brother had involved me in this case."
' Muhammad Nazir accused also denied and controverted all the allegations levelled by the prosecution against him and maintained that he was innocent and also that he had been falsely implicated in this case. Muhammad lqbal appellant and his co-accused Muhammad Nazir opted not to make any statement on oath under section 340(2), Cr.P.C. They, however, produced Abdul Nazeer (D.W.1), Nasim Gul (D W.2) and Ashiq Hussain, Constable (D.W.3) in their defence.
11. At the conclusion of the trial, as mentioned above, the learned Additional Sessions Judge, Khanewal convicted and sentenced Muhammad lqbal appellant as noticed above and acquitted Muhammad Nazir accused. Hence the present appeals, revision petition and the connected Murder Reference before this Court.
12. We have heard the learned counsel for Muhammad Iqbal convict-appellant and Muhammad Nazir accused, Muhammad Umar complainant and the State and have also gone through the record of this case with their assistance.
13. As regards Muhammad Iqbal convict's Criminal Appeal No,194 of 1996 the learned counsel for the appellant has submitted that he does not challenge the involvement of the appellant in the occurrence in question and the role played by him during the same. He has, however, maintained that the occurrence in question was a sudden flare-up wherein Muhammad Iqbal appellant was sucked in without any premeditation on his part. Thus, he has argued that although the appellant's conviction for an offence under section 302(b), P.P.C. Has rightly been recorded yet the appellant deserves concession in the matter of sentence. He has, however, maintained that Muhammad Iqbal appellant's conviction for an offence under section 324, P.P.C. Had been wrongly recorded as he had no intention to kill or injure Aneesur-Rehman. According to him the injury caused to Anees- ur-Rehman was purely accidental and an accident attracts no penal consequence. The learned counsel for Muhammad Umar complainant has categorically stated before us that he does not press the complainant's Criminal Appeal No,230 of 1996 challenging the acquittal of Muhammad Nazir accused and the complainant's Criminal Revision No,103 of 1996 seeking enhancement of sentence; compensation awarded against Muhammad Iqbal appellant so long his conviction for an offence under section 302(b), P.P.C. Is maintained. He has also stated that he has no objection if the conviction and sentence of Muhammad lqbal appellant for an offence under section 324, P.P.C.
Is set aside. The learned counsel representing the State has adopted the stands taken by the learned counsel for the complainant.
14. After hearing the learned counsel for the parties and going through the record we have found that the various stands taken by the learned counsel for the parties were quite fair as well as justified in the circumstances of this case. We have appreciated the learned counsel's forthright, bold and courageous statements which have shown their commitment to the cause of justice and fairplay beside their obligations to the cases of their respective parties. The prosecution had indeed succeeded in proving the guilt of Muhammad Iqbal appellant beyond reasonable doubt as far as the murder of Muhammad Anwar deceased was concerned. Muhammad. Umar complainant (P.W.6) and Umar Farooq (P.W.7) were natural witnesses of the occurrence and they had made consistent statements regarding the main occurrence. There was absolutely no background of or animosity between these witnesses and Muhammad Iqbal appellant so as to prompt these witnesses, to falsely implicate the appellant in this broad daylight occurrence. The prompt lodging of the F.I.R. With all the necessary details, and recovery of pistol from the appellant and its matching with the crime empties had provided sufficient corroboration and the medical evidence had furnished ample support to their statements. They have inspired our confidence and we have found no reason to doubt their veracity. Thus, the learned counsel for Muhammad Iqbal appellant is quite justified in not challenging his conviction, for an offence under section 302(b), P.P.C. We are also in agreement with the learned counsel for Muhammad Iqbal appellant that the circumstances of this case did not call for a sentence of death against the appellant. A detailed examination of the record of this case by us has convinced us that there was no previous ill-will or bitterness between the parties and that the occurrence in question had developed at the spur of the moment without any premeditation on the part of the appellant. A petty quarrel over betting by the appellant in a game of lottery being played by children on Eid day had unwittingly degenerated and deterioated into this unfortunate incident wherein the appellant had borrowed a pistol at the spot and had fired at the deceased. Had the appellant not fired twice at the deceased we might have considered altering his conviction to one under section 302(c), P.P.C. It is his second shot at the deceased which had proved fatal. Thus, the least we can do in this unfortunate case is to award the lesser sentence of imprisonment for life against the appellant under section 302(b), P.P.C. It is, therefore, so ordered. The order of the learned trial Court regarding payment of compensation by him to the heirs of the deceased is, however, maintained. The benefit under section 382-B, Cr.P.C. Shall be extended to the appellant.
15. The learned counsel for the parties are again quite right and justified in submitting that Muhammad Iqbal appellant could not be convicted for an offence under section 324, P.P.C. 'for the injuries sustained by Anees-ur-Rehman. The appellant had never fired at Anees-ur-Rehman and he had absolutely no intention to kill or injure Anees-ur-Rehman. It was purely an accident and a misfortune that the bullet fired at Muhammad Anwar deceased had crossed his thigh and had gone on' to injure the ankle of this child available near the deceased. In the absence of any intention to kill, the provisions of section 324, P.P.C. Were hardly attracted to the facts of this case. In this context we are also mindful of the provisions of section 80, P.P.C. According to which an accident does not entail penal consequences. Thus, the conviction and sentence of Muhammad Iqbal appellant for an offence under section 324, P.P.C. Are hereby set aside.
16. We have also found that the learned counsel for the complainant is quite justified in not pressing the complainant's Criminal Appeal No,230 of 1996 filed against the acquittal of Muhammad Nazir accused recorded by the learned trial Court. Muhammad Nazir accused was not shown to have any involvement in the occurrence in question except that a pistol had been borrowed by Muhammad Iqbal appellant from him at the spot for the purpose of firing at the deceased. He had no motive against the deceased or the injured child: He had not used the pistol himself for causing any injury to anybody. Even the story of Muhammad Iqbal appellant borrowing a pistol from him at the spot does not inspire confidence as the two crime empties recovered from the spot had matched with a pistol which was not only recovered from Muhammad Iqbal appellant but, according to the Investigating Officer, the said pistol was, a licensed pistol of Muhammad Iqbal appellant. There is no explanation available on the record as to how the licensed 'pistol of Muhammad Iqbal appellant was in possession of Muhammad Nazir accused just before the occurrence. We have, thus, felt that Muhammad Nazir accused was rightly acquitted by the learned trial Court. Criminal Appeal No,230 of 1996 filed by the complainant against the acquittal of Muhammad Nazir accused is therefore, dismissed.
17. As noticed above the learned counsel for the complainant has not pressed the complainant's Criminal Revision No,103 of 1996 seeking enhancement of sentence/compensation awarded against Muhammad Iqbal appellant. Even otherwise, for what has been observed above, we have found no merit in the same. Criminal Revision No,103 of 1996 is, therefore, also dismissed.
18. The upshot of the above discussion is that the conviction of Muhammad Iqbal appellant for an offence under section 302(b), P.P.C. Is upheld and maintained but his sentence for the same is reduced to imprisonment for life. The order of the learned trial Court regarding compensation payable by him to the heirs of the deceased is maintained. He shall be extended the benefit under section 382-B, Cr.P.C. Muhammad Iqbal appellant's conviction and sentence for an offence under section 324, P.P.C. Is set aside. The acquittal of Muhammad Nazir accused accorded by the learned trial Court is not interfered with.
19. As the sentence of death passed by the learned trial Court against Muhammad Iqbal appellant has been set aside by us, therefore, Murder Reference No,222 of 1996 is hereby answered in the negative.
' Death sentence is not confirmed.