' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,715 of 1998 filed by Muhammad Ashraf, appellant, who was convicted and sentenced by Judge, Special Court, Khushab constituted under the Suppression of Terrorist Activities Act, 1975 vide his judgment, dated 2-7-1998 with death as Qisas within the meaning of section 302(1), P.P.C. With further direction to pay Rs,one lac to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default six months' R.I.
2. Abdul Shakoor and Muhammad, co-accused, of the appellant were acquitted of the charge by the learned trial Court vide its judgment of even date. Complainant, Gulzar Ahmad, has filed Criminal Appeal No,828 of 1998 against the acquittal of abovesaid co-accused of the appellant which shall also be disposed of through this single judgment.
3. Occurrence in this case took place at 3-15 p.m. On 15-5-1996 within the Revenue Estate of Chak No,50/MB, which is at a distance of 9 Kms. Away from Police Station, Jauharabad, while the matter was reported to the police at 4-30 p.m. On the same day by Gulzar Ahmad complainant P.W.10 and the formal F.I.R. Exh.P.J. Was recorded by Khurshid Ali, S.-I. P.W.12.
4. According to the F.I.R. Exh.P.J., the facts of the prosecution case are that Mst. Surraya and Mst.
Razia, real sisters of Gulzar Ahmad complainant were married with Muhammad Ashraf and Abdul Shakoor about six years prior to the occurrence respectively. Irshad Ali another brother of the complainant was engaged with Mst. Naseem Akhtar daughter of Imam Din with the consent of her parents. Muhammad Ashraf and Abdul Shakoor were opposing this engagement. They asked them to desist from this marriage. The parents of Ashraf also took Abdul Shakoor and Ashraf into confidence but it was taken as ill by them. On 15-9-1996 at 9-00 a.m. Marriage procession of Irshad Ali was to proceed to the house of Imam Din. At the request of Muhammad Ashraf the time of marriage procession was fixed as evening instead of 9-00 a.m. At about 3-15 p.m., complainant alongwith Muhammad Yaqoob and Muhammad Anwar were in the street when Muhammad Ashraf and Abdul Shakoor came there in a car which was being driven by an unknown driver. Driver remained in the car. Abdul Shakoor stood near them while Muhammad Ashraf went to his house and after a short while returned back with Irshad Ali. The moment Irshad reached near the Baithak of Barkat Ali, Muhammad Ashraf brought out .30 bore pistol and opened fire at Irshad Ali which hit at his back side of chest. Irshad Ali made an attempt to take a turn but in the meantime, Muhammad Ashraf fired four further shots which hit Irshad Ali at right flank and right and left upper arm. Irshad Ali fell down on the ground and thereafter Abdul Shakoor, Muhammad Ashraf and the driver fled away.
5. After registration of the formal F.I.R., Khurshid Ali, S.-I. (P.W.12) proceeded first to the hospital, prepared injury statement Exh.P.E., inquest report Exh.P.F. And then proceeded to the spot; collected blood-stained earth and took the same into possession vide memo. Exh.P.B.; crime-empties P.4/1-5 were also taken into possession vide memo. Exh.P.C. And he recorded statements of the witnesses under section 161, Cr.P.C. The investigation was then taken over by Muhammad Sher, A.S.-I. On 5-6- 1996, Muhammad Ashraf while in police custody led to the recovery of pistol P.5 which was taken into possession vide memo. Exh.P.G. On the same day, Ejaz accused led the Investigating Officer to the recovery of car which was taken into possession vide memo. Exh.P.H. After completion of the investigation, challan was prepared by Abdul Majeed, S.H.O.
6. Prosecution in order to prove its case produced 14 witnesses in all out of whom Gulzar Ahmad (P.W.10) and Muhammad Anwar (P.W.11) were eye-witnesses while the doctor who conducted post- mortem examination on the dead body of Irshad Ali on 16-5-1996 was examined as P.W.6.
Thereafter, the learned Deputy District Attorney tendered in evidence report of the Chemical Examiner, Exh.P.M., report of the Serologist Exh.P.N. And that of the Forensic Science Laboratory Exh.P.O. Then statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication. After conclusion of the trial, appellant and his co-accused were convicted and acquitted respectively.
7. Learned counsel for the appellant Muhammad Ashraf has read before us the prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And submits that it was an unwitnessed occurrence and that arrangements of marriage were towards south side of house of the complainant. Adds that main door of the house of the complainant also opens towards the south while the occurrence had taken place towards the northern side. Further adds that the house of Muhammad Anwer P.W. Was also towards south. Learned counsel submits that both the eye- witnesses, namely, Gulzar Ahmad and Muhammad Anwer (P.Ws.10 and 11 respectively) who are cousins inter se were consistent on the point that five shots were fired by the appellant and first shot hit on the back of the deceased. Further submits that according to post-mortem examination conducted by Dr. Umar Ali Shah, P.W.6, injury on the back of the deceased was an exit wound and moreover, there are seven entry wounds which means that seven fires were shot by the appellant and not the five. He also submits that had the eye-witnesses been present at the spot they must have stated that in fact seven shots were fired. Also submits that motive has not been proved by the prosecution. Learned counsel lastly, submits that it is not a case of capital punishment because the , occurrence had taken place without any premeditation and at the spur of the moment.
8. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that date, time and place of occurrence has not been disputed by the appellant, parties are closely related to each other so there was no question of mistaken identity and false implication and that it was a broad daylight occurrence. He submits that judgment of the learned trial Court is based on evidence and )he judgment of the learned trial Court be maintained.
9. We have heard learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court with their assistance. In the instant case, two real sisters of the deceased and complainant were married to the appellant and his brother, Abdul Shakoor. It was not a case of false implication. Mere non-mentioning of seven fires instead of five would not make the prosecution story doubtful because when the fires are being shot simultaneously then there can be genuine mistake in giving the number thereof. Moreover, when the shots are fired, the person who receives the same can turn to any side and in this process fire can hit on any part of his body. We are fully convinced that it was Muhammad Ashraf appellant who had committed the murder of the deceased. Then we have also to see as to what was reason why the appellant committed the murder of the deceased. If we go through the suggestion made by the appellant to the eyewitnesses during the cross-examination before the learned trial Court and specially answer to question No,4 would show that in fact one of the sister of appellant namely, Naseem Akhtar was given to Irshad Ali deceased as his wife but it looks that on the day of occurrence when the marriage had to take place, complainant party and particularly Irshad Ali deceased asked the hand of Mst. Shahida Parveen for his real brother Babar which was refused by the appellant. Why the hand of Shahida Parveen was asked by Babar, the reason was that two real sisters of the deceased and the complainant, as mentioned above, were married to appellant and his real brother. On this, we are convinced, an altercation took place between the parties at the spur of the moment and in the heat of passion, something developed or some remarks were given by the deceased which provoked the appellant and he fired indiscriminately. At this stage, answer to question No,4 given by the appellant in his statement recorded under section 342, Cr.P.C. Is reproduced below:-- "It is correct. The true facts are that the lunch was prepared for the guests of marriage at noon time because there was too hot and also the complainant all of a sudden raised a demand that my younger sister Mst. Shahida Parveen be also married with his brother Babar which was not accepted by my parents who were never prepared to marry the said Mst. Shahida with said Babar.
To solve this controversy, the time was fixed as 5-00 p.m. The complainant and his father felt aggrieved about this situation."
So, keeping in view the statement of the eye-witnesses, circumstances of the case, near relationship of the parties and suggestions made by the appellant during the cross-examination and also answer to question No,4, in his statement recorded under section 342, Cr.P.C., we are of the view, that it is not a case of capital punishment. We, therefore, though maintain the conviction under section 302(b), P.P.C. But reduce the same to life imprisonment with the benefit of section 382-B, Cr.P.C. The compensation awarded by the learned trial Court is, however, maintained.
Murder reference is answered in the negative. Death sentence awarded to the appellant by the learned trial Court is not confirmed.
' With the abovesaid modification in sentence, this appeal stands disposed of.