' RAJA AFRASIAB KHAN, J.---On 21-1-1992, a case under section 302/34, P.P.C. Was registered with Police Station City Kamoke, District Gujranwala on the statement of Muhammad Ramzan against Maqbool Ahmad, Saber, Babar (sons of Abdul Ghafoor) and Nazakat alias Pappu for the murder of Muhammad Idrees. On account of previous dispute between the parties, the accused while armed, committed the murder referred to above in execution of their common intention. Maqbool Ahmad and Saber were alleged to possess Chhuris P-4 and P-5 which were recovered from them. These recoveries were witnessed by Zakaullah P.W.5, Muhammad Sarwar (given up) and Farman Ali, S.I.
P.W.10. The occurrence was witnessed by Muhammad Ramzan P.W.8, Muhammad Naeem P.W.9, the brothers of the deceased and Muhammad Rafiq, cousin of the 'deceased (given up). Motive was that Muhammad Idrees deceased and Maqbool Ahmad accused had quarrelled over a money transaction but the matter was pacified on intervention of the elders. The prosecution, in order to prove its case, produced Masood Ahmad Bhatti P.W.1, Muhammad Nasar P.W.2, Tajammal Hussain P.W.3, Abdur Razzaq P.W.4, Zakaullah P.W.5, Dr. Ali Muhammad P.W.6, Qutab Din P.W.7, Muhammad Ramzan P.W.8, Muhammad Naeem P.W.9, and Farman Ali P.W.10. The accused made statements under section 342, Cr.P.C. Denying the allegations levelled against them. Maqbool Ahmad, petitioner in Cr.P. 467-L of 1998 also produced four D.Ws. In his defence. An Additional Sessions Judge, Gujranwala vide his judgment dated 28-9-1992 convicted Maqbool Ahmad under section 302, P.P.C. And sentenced him to imprisonment for life. He was ordered to pay compensation of Rs.20,000 (Rupees twenty thousand) to the legal heirs of the deceased or in default to undergo six months' R.I. Saber was convicted under section 337-F(ii), P.P.C. And sentenced to two years' R.I. Plus to pay Daman amounting to Rs.10,000 to the legal heirs of the deceased and till its payment he was ordered to remain in jail. Nazakat and Baber were acquitted by giving them the benefit of doubt.
The convicts filed Criminal Appeal No.896 of 1992 against their conviction and sentence.
Muhammad Ramzan the complainant filed Criminal Revision No.712 of 1992 for enhancement of sentences of the convicts to death and also for conviction of their co-accused. These matters were heard and decided by the High Court vide impugned judgment dated 1-8-1998 holding that the case of Maqbool Ahmad, petitioner would be covered under section 302 (c) and not under section 302 (b) and reduced his sentence from imprisonment for life to 14 years' R.I. With payment of compensation of Rs.20,000 under section 544-A, Cr.P.C. Or in default to suffer six months' R.I. The appeal to the extent of Sabir convict was disposed of as having become infructuous because he had already undergone the sentence. Criminal Petition No.388-L of 1998 has been instituted by the complainant against the convicts for enhancement of their sentences. Criminal Petition No.467-L of 1998 has been instituted by the convicts against their conviction and sentences. Both these matters are being disposed of through this common judgment.
2. Ch. Muhammad Saeed, learned counsel for the convict/petitioners has argued that there is no evidence to convict them. He has added that P.W. 8 and P.W.9 are the real brothers of the deceased and as such, their evidence can not be relied upon because it has not been corroborated by independent evidence produced by the prosecution. He argues that motive mid recovery of Chhuris have rightly been discarded by the Courts below because prosecution has failed to produce independent evidence to corroborate such evidence. According to the learned counsel, it is a case of clear acquittal because prosecution has failed to bring home the charge against the accused. Mian Qurban Sadiq Ikram, learned counsel for the complainant argues that the above-referred prosecution evidence was sufficient to record conviction and sentence under section 302 (b), P.P.C. According to him, the judgment of the High Court suffers from surmises and conjectures.
3. After hearing the learned counsel for the parties and perusing the entire record, we hold the view that the High Court after critically analyzing the entire evidence available on record has rightly discarded the recovery of. Chhuris and motive--the two pieces of evidence brought on record by the prosecution. It will be advantageous to refer to the operative part of the judgment of the High Court which is as follows: "D.W.1 Syed Ijaz Hussain, A.S.P. Stated before the learned trial Court on oath that he had incorporated the contents of application in Zimni No.16 dated 26-7-1992 of the instant case, in which it was mentioned in the application that Maqbool Ahmad, appellant, had sustained injury at the hands of deceased. It was further stated in the said application that the appellant was medically treated through a private doctor in custody of police. But unfortunately, in cross- examination, he admitted that as the trial of the case had started, so, he stopped the investigation in compliance with the order of D.I.-G. Before he could have brought any 'final conclusion in this case. He even did not bother to interrogate the appellant in the jail. As far as D.W.2 was concerned, he was Ghulam Sarwar Ali, Assistant Superintendent Jail, Gujranwala, who stated that according to diary register of Gujranwala, Jail in the entry at serial No.1517 dated 7-5-1992, it was mentioned therein about the receipt of an application by Maqbool Ahmad, appellant, who was confined in that jail for his medical examination by the order of Illaqa Magistrate, Although according to him, the said application was not available in their office and all the record was in custody of head clerk of jail. Then there is evidence of Dr. Munir Ahmad D.W.3 who stated that he took the appellant Maqbool Ahmad to Civil Hospital when the appellant approached him for his medical treatment about the alleged injury which he sustained during the occurrence. According to the said doctor, he handed over Maqbool Ahmad appellant to Police Station Kamoke City, District Gujranwala. He also stated that he got him medically treated privately. During the cross-examination, he admitted that his real sister was married with Muhammad Ayub, real brother of the appellants but he also admitted that complainant party was also collateral of his father. Then D.W.4 Mst. Nasim Bibi appeared before the learned trial Court and stated that both the appellants are her real paternal cousins. On the day of occurrence at about 9-30 a.m. She was present in her house. Maqbool Ahmad, appellant also came there at that time. As Mst. Nasim Bibi had started plastering the walls of her house and had tied electric wire to the house of the complainant party. Muhammad Idrees deceased came to her house and started abusing while standing in front of door of her house. At that juncture, as her husband was not present in her house, Maqbool Ahmad appellant while standing in the street stopped Muhammad Idrees deceased from abusing her. According to the statement of D.W.4, Muhammad Idrees deceased inflicted a Chhuri blow on the chest of Maqbool Ahmad appellant, thereafter, Maqbool Ahmed appellant took a Chhuri and inflicted a Chhuri blow on the person of Muhammad Idrees deceased in exercise of right of self-defence to save his life under the fear of his death. In this way, the appellant Maqbool Ahmad, had tried to bring his version on the record but unfortunately, no medical examination about his injury was produced by the appellant. But all the efforts which the appellant Maqbool Ahmad did by producing defence witnesses and also submitting application mark A shows that there was something which both the parties have suppressed but it creates some doubt as mentioned by me, in earlier paragraph in prosecution story."
"In this view of the matter, in my opinion, the case of Maqbool Ahmad, appellant is covered by section 302 (c), P.P.C. Instead of section 302(b), P.P.C. Therefore, conviction and sentence of life imprisonment is reduced to 14 years' R.I. With payment of the compensation of Rs.20,000 under section 544-A, Cr.P.C. Which he would pay to the legal heirs of the deceased, or in default to further undergo six months' R.I. Maqbool Ahmad, appellant is on bail, he shall be taken into custody to serve out his remaining sentence. As far as, Sabir appellant is concerned, he has already undergone the sentence awarded to him according to the learned counsel for the appellants. So, this appeal has become infructuous to his extent. Maqbool Ahmad appellant is also given the benefit of section 382-B, Cr.P.C. Which was also awarded by the learned trial Court."
4. The above finding showed that pros and cons of the case were kept in view while deciding the above-noted matter. The impugned judgment appears to be just, fair and proper and has been passed in line with the principles laid down by this Court to ensure fair administration of justice. It appears that this is an occurrence which has taken place at the spur of moment without premeditation. This being so, no case for our interference has been made out. Both the petitions being devoid of force, are dismissed and leave to appeal is declined.