1. ' BASHIR A. MUJAHID, J.---Muhammad Akram alias Bagga, appellant alongwith acquitted co- accused namely Muhammad Amin, Muhammad Yasin and Akhtar alias Akhtari was tried under sections 302/148/149, P.P.C. By the learned Additional Sessions Judge, Faislabad in case F.I.R. No.392 of 1993, dated 6-10-1993 registered at Police Station Nishatabad, at the instance of Mukhtar Ahmad for commission of murder of his son Khadim Hussain and was convicted vide the impugned judgment, dated 26-5-1996 and sentenced to death under section 302(b), P.P.C. And was also ordered to pay Rs.50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, in case of default thereof to undergo one year R.I.
2. ' The brief facts of prosecution case as narrated in F.I.R. Exh.P.I/1 registered at 5-20 p.m. On 6-10- 1993 on the basis of statement Exh.P.I. Of Mukhtar Ahmad, P.W.9 recorded by Muhammad Sibtain Shah, S.I. P.W.13 at 4-30 p.m. At Police Post Pul Deengro on the same day, are that he was a labourer and his son Khadim Hussain aged 25/26 years was also labourer in Faisalabad City, but was residing with the complainant in Chak No.2. On the day of occurrence at 3-30 p.m. Khadim Hussain went out of the home to cast his vote, in the big lane he was confronted with Muhammad Akram alias Bagga (appellant), Muhammad Amin and Yasin armed with .12 bore guns while Saleem armed with rifle, sons of Muhammad Khan and Akhtar alias Akhtari son of Muhammad Hussain armed with .12 bore gun resident of the same village; Yasin raised Lalkara to kill Khadim Hussain on which Khadim Hussain rushed back towards home; all the accused chased him raising Lalkara.
3. Khadim Hussain instead of entering through the main door tried to come in by stalling over the 'hut' for the pigeons when all the accused opened fire at him. Khadim Hussain fell on the said 'hut' and sccu mbed to the injuries. The complainant alongwith his son Muhammad Hussain, his wife Mst.
4. Rasheedan Bibi, Yousaf son of Sadiq, who were sitting under Chappar in the house witnessed the occurrence. They ran towards Khadim Hussain but he had already expired. The accused ran away raising Lalkara.
5. ' The motive for the occurrence was that the accused were asking the deceased to cast vote in the elections according to their wishes but Khadim Hussain had refused. Due to this fact/grudge the accused in furtherance of their common intention committed this murder.
6. ' Muhammad Sibtain Shah, S.I. P.W.13 after recording the statement Exh.P.I. Sent the same to the Police Station for recording the formal F.I.R. And himself arrived at the place of occurrence and took the body of Khadim Hussain into possession, prepared the injury statement vide memo. Exh.P.K.
7. And inquest report Exh.P.L. He secured the blood-stained earth vide memo. Exh.P.C., recorded the statements of the witnesses and despatched the dead body for post-mortem examination which was conducted by Dr. Muhammad Nawaz, P.W.7, who found the following injuries on the person of the deceased:--
(1) A lacerated fire-arm wound of entry 1 x 1 c.m. Rounded in shape, 4 c.m. Left to anterior midline, 6 c.m. From left nipple, corresponding hole on Qameez was present. It was on left anterio chest.
(2) A lacerated fire-arm wound of entry 1 x 1 c.m. Rounded in shape with inverted margins on left anterio chest, 4 c.m. Left to anterior midline, 1-1/4 c.m. Below Injury No.l. Corresponding hole on Qameez was present.
(3) A fire-arm wound of entry 1 x 1 c.m. Rounded in shape with inverted margins on left anterior chest, 3-1/2 c.m. From anterio midline 2-1/2 c.m. Below and outer to Injury No.2. Corresponding hole on Qameez was present.
(4) A fire-arm wound of entry 1 x 1 c.m. Rounded in shape with inverted margins in the epigastrium 1-1/2 c.m. Right to anterior midline, 9-1/2 c.m. Above umblicus. There was corresponding hole on Qameez.
(5) A fire-arm wound of exit 1 x 1 c.m. With everted margins on right anterior chest 18 c.m. Right to the anterio midline, in the right interior axillary line. Corresponding hole on Qameez was present.
(6) A fire-arm wound of exit 1 x 1 c.m. With everted margins on right anterior chest in the anterio axillary line. Corresponding hole was present.
(7) A fire-arm wound of exit 1 x 1 c.m. With everted margins on front of right upper arm, 15 c.m. Below the top of left shoulder. Corresponding hole on Qameez was present.
(8) A fire-arm wound of entry 1 x 1 c.m. With inverted margins on inner side of front of right upper arm, 7 c.m. Medial to Injury No.7, 14 c.m. From top of right shoulder. Corresponding hole on Qameez was present. This injury caused fracture of right humers bone.
(9) A fire-arm wound of entry 1 x 1 c.m. With inverted margins rounded in shape on right upper arm front part, 7-1/2 c.m. Below Injury No.8. Corresponding hole on Qameez was present.
(10) A fire-arm wound of exit 1 x 1 c.m. With everted margins rounded in shape on front of right upper arm, 9 c.m. Below Injury No.7 and 3 c.m. Below and outer to Injury No.9. Corresponding hole on Qameez was present.
(11) A fire-arm wound of exit 1 x 1 c.m. With everted margins rounded on front of right fore-arm 7-1/2 c.m. Below right cubial fossa.Corresponding hole on Qameez was present.
(12) A fire-arm wound of entry 1 x 1 c.m. With inverted margins on front of right fore-arm 12 c.m.
8. Below right cubital fossa, 5 c.m. Below and inner to injury No.11. Corresponding hole on Qameez was present.
(13) A fire-arm wound of entry 1 x 1 c.m. Rounded in shape with inverted margins on dorsal aspect of right fore-arm 8 c.m. Below right elbow. Corresponding hole on Qameez was present.
(14) A fire-arm wound of exit 1 x 1 c.m. With everted margins rounded in shape on darsal aspect of right forearm 9-1/2 c.m below right elbow, 4-1/2 c.m. Below Injury No.13. There was corresponding hole on Qameez. There was fracture of right radius by Injuries Nos.11, 12, 13 and 14 collectively.
9. ' In his opinion the cause of death in this case was excessive loss of blood and shock due to tears of heart liver and right lung by Injuries Nos.1,2,3, and 4. These injuries were sufficient to cause death in ordinary course of nature. Injuries Nos.1, 2, 3, 4, 7 and 8 were grievous in nature and rest was simple.
10. ' On 20-11-1994, Abid Ghani, S.-I. P.W.14 who was posted at Check Post Pul Deengro, received information through the complainant that Muhammad Akram, accused was present at Adda of Chak No.2 Ram Deewali, on which he arrested the appellant, who was armed with .12 bore gun P-4 alongwith 4 live cartridges P.5/1-4, which were taken into possession vide memo. Exh.P.D.
11. ' On 10-12-1994, this witness arrested Saleem, accused from his house, who while in police custody got recovered rifle .7MM P.6 which was taken into possession vide memo. Exh.P.H. Subsequently Muhammad Saleem, accused absconded and was declared proclaimed offender. After completion of the investigation the challan was submitted. The accused claimed trial by denying allegations.
12. ' During the trial, the prosecution examined as many as 15 witnesses to prove the guilt of the accused. Mukhtar Ahmad, complainant was examined as P.W.9, who supported the version of the F.I.R. And narrated the motive for the alleged occurrence. Muhammad Yousaf was examined as P.W.10, who was also eyewitness of the occurrence. He was son in law of the complainant. He supported the complainant and attested the recovery memo. Of blood-stained earth Exh.P.C. And recovery of gun .12 bore from M. Akram, appellant Muhammad Hussain, son of the complainant was examined as P.W. 11, he was also eyewitness of the occurrence, his statement was in line with the statement of the complainant P.W.9 and Muhammad Yousaf, P.W.10. While Muhammad Shahbaz, P.W.8 had attested the recovery memo. Of rifle Exh.P.H. Recovered at the instance of Muhammad Saleem accused, Muhammad Sibtain Shah, was examined as P.W.13, who had investigated the case. Abid Ghani, S.-I. Was examined as P.W.14, who had arrested accused Muhammad Akram and Muhammad Saleem. The remaining witnesses are of formal nature.
13. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exhs.PNN and P.O. And that of Serologist Exh.P.O.
14. ' The statement of the appellant was recorded under section 342, Cr.P.C., who denied the charge and claimed his innocence and false involvement due to enmity.
15. ' The. Trial culminated into conviction of the appellant as mentioned above, who has filed Criminal Appeal No.486 of 1996 while trial Court has sent up Murder Reference No.101 of 1996 for confirmation of death sentence under section 374, Cr.P.C. Both the matters are being decided by this Judgment.
16. ' Learned counsel for the appellant contends that the F.I.R. Was not recorded at Police Station, therefore, the presumption is that the case was registered after preliminary inquiry, with deliberations and after consultation; that there are material contradictions in the statements of the prosecution witnesses particularly as to place where from the accused fired at the deceased and presence of eye-witnesses; that the prosecution witnesses are related inter se and to the deceased and their testimony has not been corroborated from any other independent source.
17. ' Conversely, the appeal has been opposed by learned State counsel who has supported the impugned judgment.
18. ' Heard. Record perused.
19. ' The appellant was nominated accused in promptly recorded F.I.R. The Statement Exh.P.I. Was recorded at 4-30 p.m. And thereafter formal F.I.R. Was recorded at 5-20 p.m. At the distance of 19 k.Ms from the place of occurrence. There is no previous enmity between the parties for false implication or substitution of the accused. Mere relationship with the deceased or inter se of the P.Ws. Is no ground to discard their testimony. Nothing has been brought on record that they were inimical towards the accused. The ocular account has been corroborated by medical evidence and also A recovery of alleged weapon of offence. The discrepancies pointed out by the learned counsel are of minor nature and not fatal to the prosecution case. In our opinion the prosecution has proved its case against the appellant beyond any shadow of doubt and we do not find any reason to interfere in the conviction recorded against the appellant.
20. As far as the sentence is concerned, there is allegation of general firing against all the accused, no individual injury has been attributed to the present appellant, therefore, it is a fit case for awarding lesser penalty instead of death sentence, therefore, while maintaining the conviction we reduce the sentence from death to imprisonment for life. Benefit of section 382-B, Cr.P.C. Is also extended to the appellant. However, punishment of fine or the sentence in default of that is maintained. The death sentence against Muhammad Akram alias Bagga is not confirmed. The appeal is dismissed with the above modification.
21. ' Murder Reference is answered in the negative.