' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,163 of 1996 directed against the judgment, dated 15-9-1996 passed by the learned Sessions Judge, Jhelum, whereby he acquitted Malazam Hussain accused and convicted Arshad Mehmood accused under section 302(b)/34, P.P.C. And sentenced him to undergo 'death sentence with further direction to pay Rs,10,000 as compensation or in default six months' S.I. He also convicted Abid Mehmood appellant under section 302(b)/34, P.P.C. And sentenced him to undergo life imprisonment with further direction to pay Rs,20,000 as compensation or in default six months' S.I. Benefit of section 382-B, Cr.P.C. Was also awarded to him.
2. The occurrence in this case took place at 11 a.m. On 20-7-1994 in the area of village Bharatta at a distance of 5 miles towards East from Police Station, Deena, District Jehlum. Matter was reported to the Police by Khadim Hussain complainant the same day at 1-50 p.m.
3. The facts in brief as narrated by 'the complainant in the F.I.R. Are that his son Manazar Hussain, Muhammad Mumtaz and Muhammad Mukhtar P. Ws. Were running joint tailoring shop at Adda Kaluwal. On the day of occurrence at about 10 a.m. Arshad Mehmood and Mulazam Hussain two of the accused came to Adda Kaluwal on a motorcycle whereas Manazar Hussain was proceeding to the hotel for bringing tea. Arshad Mehmood accused deliberately created obstacle in the way of Manazar Hussain through the motorcycle upon which Manazar Hussain reprimanded him by saying that were they blind persons upon which both the said accused alighted from the motorcycle and starting abusing Manzar Hussain, Muhammad Mukhtar P.W. Also reached there who intervened and separated them. Whereafter Manazar Hussain, Muhammad Mukhtar and Muhammad. Mumtaz returned to their village apprehending danger to their lives ' after issuance of threats of dire consequences. At about 11 a.m he (the complainant) and his son Manazar Hussain were talking to each other near the village pond whereas Muhammad Mumtaz, Muhammad Mukhtar and Nizakat P.Ws. Were present nearby when Arshad Mehmood, Abid Mehmood and Mulazam Hussain all armed with pistols and revolver reached there on a tractor. Mulazam Hussain raised Lalkara and Arshad Mehmood accused fired with pistol hitting Manzar Hussain on the right side of his abdomen who fell down and the other two accused resorted to firing. The P.Ws. Saved their lives by taking shelter and on raising alarm by them. The injured Manzar Hussain succumbed to the injuries in Dina Hospital. The accused made good their escape from the spot.
4. The motive for the occurrence was that all the accused used to tease the ladies at the shop of deceased to which the deceased always took exception and for that grudge, they murdered him.
5. After receiving information about the occurrence the police completed all the necessary formalities and then Mubarak Ahmed, S.-I. Alongwith other police officials proceeded to the spot.
He prepared injury statement Exh.P.E. And inquest report Exh.P:F. On the same day last worn clothes of the deceased shirt P.1, vest P.2, Shalwar P.3 all stained with blood were produced before him by a constable which he took into possession vide memo. P.B. He arrested all the accused on 3-9-1994 and took into possession the tractor vide memo. Exh.P.H. On 8-9-1994 Arshad Memhood got recovered pistol .30 bore P.4, vide memo. Exh.P.E. The same day Abid Mehmood also got recovered .30 bore revolver P.1 vide memo. Exh.P.F. Mulazam Hussain accused also got recovered .30 bore pistol P.6 vide memo. Exh.P.G. As all the weapons were unlicesed separate cases under section 13/20/65 of Arms Ordinance were also registered against them. After completing the investigation he challaned all the three accused and submitted the same for trial.
6. In order to prove its case the prosecution has produced as many as 8 witnesses including Doctor, Investigating Officer and other relevant persons. On 3-7-1996 the learned D.A. Closed the prosecution evidence and produced nothing in the shape of documents,. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded not guilty.
7. After having gone through the prosecution evidence and other record available on the file, learned counsel for the appellants submits that both the appellants are real brothers and they have been falsely implicated in this case along with Mulazam Hussain who has been acquitted by the learned trial Court, that the eye-witnesses were not present at the spot that at the time of occurrence there was raining heavily, that the presence of the complainant at the spot is not made out, that other witnesses namely Muhammad Mukhtar who is first cousin of the deceased has stated that when they saw accused persons they bolted the main door from inside and it was reopened by them when a shot had already been fired and no body had witnessed that who had fired at the deceased. He further submits that no independent witness has been produced in this case, that Mulazam Hussain has been acquitted by the learned trial Court and that case of Mulazam Hussain and Abid Mahmood is on similar footing, that in the site plan prepared by the draftsman Exh.P.A. Name of Abid Mahmood and Mulazam Hussain are not mentioned as accused persons.
8. Learned counsel for the appellants further submits that as far as motive is concerned that has not been proved by the prosecution because prosecution has failed to mention the name of any girl to whom the appellants had teased and the deceased had reprimanded them, that according to the prosecution case the appellants had come on a tractor but tractor was not recovered from the appellant, that the prosecution has failed to prove the motive as no girl to whom the appellants had teased was got examined by the prosecution.
9. As far as recovery of pistols from the appellants is concerned that is of no avail because no crime empty was recovered from the spot. Lastly he submits that there is mitigating circumstance in this case and it is not a case of death sentence because appellant Arshad Mahmood is a young man of 20/22 years and he is first offender and there was no previous background of enmity between the parties. Adds that there was only one. Diary on the person of the deceased, so the death sentence may be converted into life imprisonment.
10. On the other hand learned counsel for the State assisted by the learned counsel for the complainant submits that appellants are named in the F.I.R. And specific role is attributed to them, that Mulazam Hussair along with Abid Mahmood and Arshad Mehmood came at the spot on a tractor section 34, P.P.C. Is applicable in this case, that there is no previous background of enmity between the parties and that question of false implication does not arise. They both sup ort the judgment of the trial Court.
11. We have heard the learned counsel for the parties and also have gone through the record available on the file. In the instant case occurrence had taken place on 20-7-1994 at 11 a.m., matter was reported to the police through complaint at 1-30 p.m., formal F.I.R. Was lodged the same day at 1-50 p.m., which is Exh.P.D/1. It was broad daylight occurrence and appellants were known to each other. There was no question .Of mistaken identity. Arshad Mehmood appellant caused single fatal blow on the person of the deceased which hit in his abdomen and the same was proved fatal.
Ocular account is corroborated by medical evidence. As far as motive is concerned, the same day in the earlier occurrence Arshad Mehmood appellant intentionally struck his motorcycle to Manzar Hussain on which he told Arshad Mehmood whether he was blind on which both the accused alighted from the motorcycle and started abusing to deceased Muhammad Mukhtar P.W. Also reached there, they grappled with each other. Muhammad Mukhtar intervened and separated them. Muhammad Mukhtar P.W. Has been examined as P.W.7 in this case. He has fully supported the occurrence which took place prior to the murder of the deceased on the same day. He has fully implicated the appellants. Though Khadim Hussain and Mukhtar P.Ws. Are father and first cousin of the deceased but there was no previous background .Of enmity between the parties. There was no question of false implication. It was the appellant Arshad Mehmood who caused fatal below on the person of the deceased on the vital part of the body of the deceased. He had the knowledge and intention to commit the Qatl-e-Amd of the deceased. Blood-stained earth was not taken from the spot for the reason that according to the prosecution there was heavy rain on the day of occurrence. As far as crime empty was concerned, that was not recovered from the spot. The same may have lost either in the rain water or in the mud. As far as argument of the learned counsel for the appellants that Mukhtar and the other P. Ws. Had closed the door of their house when they saw the accused and they were not in a position to state that whose fire hit the deceased. For the sake of arguments if we disbelieve Mukhtar Hussain eye-witness when there remains evidence of Khadim Hussain who was standing nearby place of occurrence and he still exists in the field and Court can safely rely upon the solitary eye-witness account of Khadim Hussain. Court has to see the quality of the accused and not the quantity of the evidence. We have no hesitation in our mind to believe eye-witness account of Khadim Hussain. Moreover, we are satisfied in our mind that it. Was Arshad Mehmood who caused the fatal blow to the deceased.
There is no mitigating circumstance in his favour for the reason that in the earlier incident which took place prior to the murder of the deceased it was Arshad Mehmood who intentionally struck his motorcycle with Manzar Hussain on which an altercation took place between the parties and thereafter the. Matter was settled by Mukhtar P.W. Arshad Mehmood left the site while raising Lalkara that he would teach a lesson - to the deceased and in order to fulfil his evil design he came there and caused the death of the deceased. He knew the consequences of his act.
12. The upshot of the above discussion is that conviction and death sentence awarded to the appellant Arshad Mehmood is hereby confirmed and the murder reference is replied in affirmative.
Notice for enhancement of compensation amount, was issued to Arshad Mehmood appellant which has been accepted by his learned counsel, keeping in view the above circumstances, amount of compensation is enhanced from Rs,20,000 to Rs,50,000, payable to the legal heirs of the deceased, in default thereof, he will have to undergo for six months' S.I.
13. As far as Abid Mahmood appellant is concerned, he has been awarded life imprisonment. He is real brother of Arshad Mehmood. It was Arshad Mehmood who caused a single fatal injury on the person of the deceased. Except ineffective firing, no overt act is attributed to Abid Mahmood appellant. No crime empty was recovered from the spot. Mulazam Hussain acquitted co-accused of the appellant was acquitted by the learned trial Court on the same evidence. Case of Abid Mahmood appellant is on the similar footings to that of Mulazam Hussain although appeal against acquittal has been filed but no order till today has been passed on it. Sound reasonings have been given by the learned trial Court while passing acquittal order of Mulazam Hussain. Being real brother of Arshad Mehmood appellant false implication of Abid Mehmood appellant in this case cannot be ruled out. While extending benefit of doubt we acquit Abid Mahmood appellant. He shall be released forthwith if not required in any other criminal case.
' Death sentence awarded to Arshad Mehmood, appellant by the learned trial Court is confirmed.