JUDGMENT 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, PPC by the learned Addl. Sessions Judge, Faisalabad in case FIR No. 392/93, dated 6.10.1993 registered at P.S. Nishatabad, at the instance of Mukhtar Ahmad for commission of murder of his son Khadim Hussan and was convicted vide the impugned judgment dated 26.5.1996 and sentenced to death under Section 302(b), PPC and was also ordered to pay Rs.50,000/- as compensation u/S. 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 FIR Ex.PI/1 registered at 5.20 p.m. On 6.10.1993 on the basis of statement Ex.PI of Mukhtar Ahmad PW9, recorded by Muhammad Sibtain Shah, S.I. At 4.30 p.m. At Police Post P.I Deengro on the same day, are that he -was a labourer and his son Khadim Hussan 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 Hussan 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 Hussan armed with 12-bore gun resident of the same village; Yasin raised lalkara to kill Khadim Hussan on which Khadim Hussan rushed back towards home; all the accused chased him' raising lalkara. Khadim Hussan instead of entering through the main door tried to come in by calling over the 'hut' for the pigeons when all the accused opened fire at him. Khadim Hussan fell on the said 'hut' and succumbed to the injuries. The complainant with his son Muhammad Hussan, his wife-My/. Rasheedan feibi, Yousaf son of Sadiq, who were sitting under Chapper in the house witnessed the occurrence. They ran towards Khadim Hussan but he had already expired. The accused ran away raising lalkara.
2. The motive tor the occurrence was that the accused were asking the deceased to cast vote in the elections according to their wishes but Khadim Hussan had refused. Due to this fact/grudge the accused in furtherance of their common intention committed this murder.
3. Muhammad Sibtain Shah, S.I. PW13 after recording the statement Ex.PI sent the same to the P.S. For recording the formal FIR and himself arrived at the place of Occurrence and took the dead- body of Khadim Hussan into possession, prepared the injury statement vide memo. Ex.PK and inquest report Ex.PL; he secured the blood-stained earth vide memo. Ex.PC, recorded the statements of the witnesses and despatched the dead-body for post-mortem examination which was conducted by Dr. Muhammad Nawaz, PW7, 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 cm. Left to anterior mid line, 6 c.m. From left nipple, corresponding hole on Qamees 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 tv) anterio mid line, 1-1/4 c.m, below injury No. 1. Corresponding hole on Qamees 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 Qamees 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 umbilicus. There was corresponding hole on Qamees.
(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 Qamees 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 Qamees 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 Qamees was present. This injury caused fracture of right humerus 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 Qamees 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 Qamees 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 cubital fossa. Corresponding hole on Qamees 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.
Below right cubital fossa, 5 c.m. Below and inner to injury No. 11. Corresponding hole on Qamees 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 Qamees 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 fore-arm 9-1/2 c.m. Below right elbow, 4-1/2 c.m. Below injury No. 13. There was corresponding hole on Qamees. There was fracture of right radius by injuries Nos. 11, 12, 13 and 14 collectively.
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 were simple.
4. On 20.11.1994, Abid Ghani, SI PW14 who was posted at Check Post P.I Deengro, received information though 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 P4 alongwith 4 live cartridges P5/1-4, which were taken into possession vide memo. Ex.PD.
5. On 10.12.1994, this witness arrested Saleem. Accused from his house, who while in police custody got recovered rifle 7mm P6 which was taken into possession vide memo. Ex.PH- 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.
6. During the trial, the prosecution examined as many as 15 witnesses to prove the guilt of the accused. Mukhtar Ahmad, complainant was examined as PW9, who supported the version of the FIR and narrated the motive for the alleged occurrence. Muhammad Yousaf was Examined as PW10, who was also eye-witness of the occurrence. He was son-in-law of the complainant. He supported the complainant and attested the recovery memo, of blood-stained earth Ex.PC and recovery of gun 12 bore from M. Akram, appellant Muhammad Hussan, son of the complainant was examined as PW11, he was also eye-witness of the occurrence, his statement was in line with the statement of the complainant PW9 and Muhammad Yousaf, PW10. While Muhammad Shahbaz, PW8 had attested the recovery memo, of rifle Ex.PH recovered at the instance of Muhammad Saleem, accused, Muhammad Sibtain Shah, was examined as PW13, who had investigated the case. Abid Ghani, SI was examined as PW14, who had arrested accused Muhammad Akram and Muhammad Saleem. The remaining witnesses are of formal nature.
7. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Ex.PN and PO and that of Serologist Ex.PO.
8. 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.
The trial culminated into conviction of the appellant as mentioned above, who has filed Crl. Appeal No. 486/96 while trial Court has sent-up Murder Reference No. 104/96 for confirmation of death sentence under Section 374, Cr.P.C. Both the matters are being decided by this judgment.
9. Learned counsel for the appellant contends that the FIR 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 inters and to the deceased and their testimony has not been corroborated from any other independent source.
Conversely, the appeal has been opposed by learned State counsel who has supported the impugned judgment.
Heard. Record perused.
10. The appellant was nominated accused in promptly recorded FIR. The statement Ex.PI was recorded at 4.30 p.m. And thereafter formal FIR was recorded at 5.20 p.m. At the distance of 19 K.M.
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 inters of the PWs 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 recovery of alleged weapon of offence. The discrepancies pointed out by the learned counsel are of minor nature and nor 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.
11. 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 was 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.
Murder Reference is answered in the negative.