KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.351 of 1995, directed against the judgment, dated 30-5-1995 passed by the learned Sessions Judge, Marndi Bahauddin, whereby he convicted Ghulam Qadir appellant under section 302-B, P.P.C. And sentenced them to death while Sabar appellant was sentenced to undergo life imprisonment.
2. The occurrence had taken place on 14-11-1992 at about 1-30 p.m. In the area of Chak Fateh Shah at a distance of 10 k.m. Towards North from Police Station Sadar M.B. Din.
3. The brief facts as narrated by the complainant Yara son of Lal are that his brother Anara deceased was married with Mst. Zahida 8 years ago and during that wedlock three daughters were born. 14/15 days prior to occurrence Mst. Zahida had deserted her husband on some domestic dispute and had gone to the house of her parent with her daughters. 3/4 days prior to the occurrence another daughter born out to Mst. Zahida. Anara deceased had visited the house of his in-laws at village Shahidanwali to enquire about the health of his wife and while returning back he took her daughter namely Kausar aged 6/7 years with him. On the way back the complainant, alongwith and Muhammad Ashraf, all brothers and Ashraf son of Sikandar and Bagga were present at the distance of three acres from his dera and were busy in peeling the sugarcane. At about 8 a.m Sabir accused, brother in law of the deceased reached there and he demanded back custody of Mst. Kausar his niece. Anara deceased refused to hand over the custody of Mst. Kausar to him. Both entered into physical altercation and also exchanged abuses. Anara deceased also had given sugarcane stick blow to Sabar. The complainant intervened and separated them. Sabir accused, however, left the spot while delivering abuses and also challenged that he would take revenge of insult meted out to him. On the same day at about 1.30 p.m. Sabar and Ghulam Qadir appellants came to the spot. Ghulam Qadir was armed with 12 bore gun while Sabir appellant was empty-handed. Ghulam Qadir had delivered abuses to Anara and he asked the deceased that as to why he had beaten Sabir accused. He also challenged that he would see as to how Anara would not return his daughter to him. On the askence of Ghulam Qadir 4ppellant Sabit appellant started delivering first belows to Anara deceased, then Ghulam Qadir opened fire from his gun hitting left flank of Anara deceased who fell down and died at the spot. The motive behind this occurrence was custody of a minor girl Kausar. The matter was reported to the police.
4. The police after completing all the necessary formalities handed over the inquiry of the case to Investigating Officer who visited the spot and a secured the blood-stained earth Exh.P.F. And prepared rough site plan vide memo. Exh.P.E.
5. Prosecution in order to prove its case had produced as many as 12 P.Ws. Including eye-witnesses Doctor and Investigating Officer and then produced reports of Chemical Examiner and that of Serologist and F. S. L. Vide memos. Exhs.P.N. P.M and P.O. Respectively. Thereafter, statement of the appellants were recorded under section 342, Cr.P.C. In which they pleaded not guilty.
6. Learned counsel for the appellants submits that appellants have been falsely implicated in this case, that it was the deceased who had forcibly brought his ill daughter from the house of Sabar appellant who was living in the house of Sabar alongwith his mother Zahida. Learned counsel further submits that it was only one occurrence and not two as stated by the first informant in the F.
I. R. And before the trial Court. Adds that it vas deceased who gave sugarcane blow to Sabir appellant. He further submits that the story narrated by Sabar appellant is more plausible and reasonable. Adds that the eye-witnesses were not present at the spot. He submits that the learned Additional Sessions Judge was wrong in convicting the appellants. He also submits that according to the post-mortem report there is only one injury with fire-arm and there was no injury with blunt weapon and so the ocular account is contradicted by the medical evidence. He also submits that motive also laid with the deceased to open the attack.
7. On the other hand learned A.A.-G. Supports the judgment of the learned trial Court and submits that it was a broad daylight occurrence, appellants were specifically named in the promptly lodged F.I.R. And that the prosecution has proved it case through ocular account corroborated by the medical evidence. .
9. We have heard the learned counsel for the parties. In the instant case motive was that prior to the present occurrence Mst. Zahida who was married to Anara deceased had left his house 14/15 days prior to the present occurrence after a quarrel with her husband Anara deceased. While going to the house of her parents she also took away both the daughters who were born out of the wedlock/ 3/4 days prior to the occurrence the third daughter was born to Zahida Bibi sister of Sabir appellant. Anara deceased went to the house of his in-laws and while returning he took his elder daughter namely Kausar aged 6/7 years. In our considered view Anara had brought Mst. Kausar Bibi minor forcibly from the house of Sabar appellant on which Sabar appellant came to the house of his brother-in-law Sabar appellant demanded Kausar Bibi her material niece but on the refusal of Anara abuse were exchanged. Anara also gave him a blow with sugarcane. The story of the F.I.R.
That Sabar went away after threatening Anara is not plausible. It seems that there was only one occurrence and not two as stated by the complainant in the F.I.R. At that moment when Anara gave a sugarcan blow to Sabar, it was Ghulam Qadir who fired a gun shot hitting Anara deceased which proved fatal. Story of the prosecution that Sabar gave fist blows to Anara deceased is contradicted by the report of the post-mortem examination which was conducted by P.W.4 Dr. Shahid Iqbal. There was only one injury with fire on the left side of the rib of the deceased and there was no other injury on the person of the deceased so story of the prosecution that Sabar gave fist blow to Anara is found to be incorrect although, Sabar had taken a plea of right of self-defence in his statement recorded under section 342, Cr.P.C. While replying question No.6 which is reproduced below:-- .
"It is correct that I came to the dera of deceased Anara but I was alone. Ghulam Qadir co-accused was not with me. I was empty handed. I came for reconciliation between my sister and her husband deceased Anara. I requested deceased Anara to take his wife and children to his house but Anara deceased abused and grappled with me and also gave me beating with sugarcane sticks. Yara complainant and his brother Ashraf attacked me with toka and sickles in their hands. I apprehending that they will kill me, took a 12 bore gun which was lying there. This was licenced gun of Sarwar, brother of the deceased and complainant Yara. I fired in the air in order to keep them away but unfortunately the fire hit the deceased."
We do not believe this plea of Sabar appellant. We think that as his brother-in-law was murdered in this case by Ghulam Qadir who was cousin of Mst. Zahida and also of Sabar appellant, Sabar took all the burden on himself. The role of Sabar appellant in this case is not corroborated by medical evidence so we acquit him and his conviction and sentence is set aside. He shall be released forthwith from the jail if he is not required in any other case.
10. However, as far as role of Ghulam Qadir appellant is concerned, he had caused only injury on the person of the deceased which proved to be fatal. There are mitigating circumstances in his favour, that he did not repeat the fire, that in his presence Anara deceased gave injury to Sabar appellant with sugarcane stick, then Anara deceased had also forcibly brought Kausar Bibi the minor girl from the house of Sabar appellant from the custody of Zahida Bibi wife of Anara and real sister of Sabar and cousin (PhophiZad) of Ghulam Qadir, he caused a single injury so, though we maintain his conviction under section 302(b), P.P.C. But convert his sentence of death into life imprisonment. Death sentence is not confirmed. Murder Reference is replied in the negative. No compensation was awarded to Ghulam Qadir appellant. We have issued notice to the learned counsel for the appellant who accepts the same. We direct that Ghulam Qadir, appellant would also pay Rs.50,000 as compensation to the legal heirs of the deceased or in default six months R.I.
Benefit of section 382-B, Cr.P.C. Is also granted to him.