1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,367 of 1997 filed by Muhammad Akram, Iftikhar Ahmad, Shah Muhammad, Muhammad Ali, Muhammad Ilyas and Shabbir Ahmad, appellants, who were convicted and sentenced by learned Additional Sessions Judge, Sahiwal vide his judgment, dated 11-1 l-1996 as under:---
(1) Iftikhar Ahmad, appellant, death and Rs,20,000 as compensation and in default six months' S.I.
2. Under section 302, P.P.C. Imprisonment for life and compensation, of Rs,20,000 in default six months'
3. Si. Under section 302, P.P.C. Two months under sections 148/149, P.P.C.
(2) Muhammad Akram, appellant, imprisonment for life and Rs,20,000 as compensation and in default six months' S.I. Under section 302, P.P.C. Two months' R.I. Under sections 148/149, P.P.C.
(3) Muhammad Ali, Muhammad Ilyas, Shah Muhammad and Shabbir Ahrnad, appellants, seven years' R.I. And a fine of Rs,2,000 each, in default two months R.I. Under sections 324/149, P.P.C. Ten years' R.I. Under sections 302/149, P.P.C.
4. ' All the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
2. Occurrence in this case had taken place at 9-00 p.m. On 7-9-1994 within the revenue estate of Chak No,61/4-R at a distance of 13 miles from Police Station Noor Shah, District Sahiwal, while the matter was reported to the Police by Muhammad Imran Yousaf at 11-25 midnight on the same day and the formal F.I.R. Exh.P.E. Was recorded by Muhammad Asghar S.I.
3. Briefly stated the facts of the case are that the complainant is a student of First Year, Muhammad Aslam his father is Lumbardar, out of the village they had constructed a Dhari for cattle in square No,54, towards the south side of Dhari of the complainant, there is residence of Muhammad Ali, who is relative of father of the complainant, on 7-9-1994 at 8-00 p.m. The complainant his younger brother Adnan Yousaf, his father Muhammad Aslam and Muhammad Ijaz Akbar maternal uncle were present on their Dhari to get the turn of the water through tenants, Iftikhar alias Khari came towards their Dhari, upon which father of the complainant gave abuses to Iftikhar as to why he had come there being his enemy, Iftikhar in anger went back saying that father of the complainant would be taught a lesson for the said insult, after aboud 45 minutes Muhammad Ali armed with 12 bore gun, Iftikhar Ahmad armed with rifle, Muhammad Akram, armed with 12 bore gun, Muhammad Ilyas armed with 12 bore gun, Shabbir armed with 12 bore gun and Shah Muhammad also armed with 12 bore gun; with common intention came there, while raising lalkaras and stating that Aslam would not be left alive, soon after Iftikhar fired a straight shot with his rifle which hit on the head of father of the complainant, the second fire made by Akram with 12 bore gun also hit on the left shoulder of the victim, the victim fell down, the assailants issued straight fires towards the complainant and others but they saved themselves by taking shelter of a Katchawall, a lantern was lit outside the room of the Dhari and in that light the occurrence was witnessed and the at cused recognized.
5. ' Motive for the occurrence was that the property situated in Bhakkar owned by mother-in-law of Muhammad Ilyas deceased uncle of the complainant was purchased by Muhammad Ali at a very nominal price. The father of the complainant and his aunt Mst. Seema were purusing the case which was fixed on 7-9-1994 before the High Court. Muhammad Ali etc. Had grudge as to why father of the complainant used to pursue the case.
6. ' After registration of the formal F.I.R. Muhammad Asghar, S.I. P.W.13 went to Hospital to record the statement of the injured but the Medical Officer reported that the injured was not in a position to make the statement, then recorded the statement of Adnan Yousaf and Ijaz Akbar under section 161, Cr.P.C. On the following day, went to the place of occurrence took into possession blood- stained earth vide memo. Exh.P.F., lantern P.6 was taken into possession vide memo. Exh.P.M. 25 pellets recovered from the spot were taken into possession vide memo. Exh.P.J, empty bullets P.5 and seven empty cartridges P.4/1-7 were secured vide memo. Exh.P.G. On 8-9-1994, Muhammad Aslam died in the hospital at Lahore, then the Investigating Officer proceeded to Lahore General Hospital, prepared inquest report Exh:P.N. Last-worn clothes of the deceased were taken into possession vide memo Exh.P.B. On 9-9-1994, arrested Shah Muhammad on 24-9-1994, then arrested Iftikhar and Akram on 26-9-1994, Akram on 9-10-1994 got recovered 12 bore gun P.8 which was taken into possession vide memo. Exti.P..K, on 26-10-1994 the Dhari of Muhammad Ali was raided, who seeing the police party threw away his 7-MM rifle alongwith bullets which were taken into possession vide memo. Exh.P.L. Recorded the statements of the P.Ws. And after completion of the formal investigation all the accused were challaned to face the trial.
7. ' At the trial, prosecution in order to prove its case produced 14 witnesses in all, then the learned D.D.A. Tendered in evidence report of the Chemical Examiner Exh.P.P, report of the Serologist Exh.P.Q.
8. Report of the Forensic Science Laboratory Exh.P.R., copy of varabandi Exh.P.S. And closed the prosecution, thereafter, statements of the accused were recorded, under section 342, Cr.P.C. In which they pleaded innocence. At the conclusion of trial, appellants were convicted and sentenced as stated above.
9. ' Learned counsel for the appellants after having read the entire prosecution evidence submits that no independent witness has been produced, the P.Ws. Produced by the prosecution are close relations of the deceased, both the eye-witnesses are sons of the deceased, they are not resident of place of occurrence but were residing at a place two squares away, presence of the eye- witnesses is doubtful, motive was not proved against the appellant, the medical evidence shows that it was a case of single shot and six persons have been falsely implicated for the murder of the deceased and that there was enmity between the parties which became the cause of false implication of the appellants.
10. ' On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that the appellants are named in the F.I.R with roles, occurrence took place at the Dhari of the complainant party, accused were known to each other, there was no question of mistaken identity, two different weapons have been used one is rifle and the other is gun, ocular account is chorated by medical evidence, it was not an unwitnessed occurrence, there were pellet marks on the wall, turn of the water has not been contested by the appellants, motive has been proved, recoveries were effected including crime empties and that the prosecution has proved its case against the appellants.
11. ' We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. In the instant case, if one goes through the statement of Dr. Qamar lqbal Paracha, P.W.9. It would become clear that there were five injuries on the person of Muhammad Aslant deceased, two were entry wounds and three were exit wounds. The injuries may be reproduced here:
(1) A lacerated wound 2 c.m. x 1 c.m bone deep at mid-of left side of head, 3 c.m. Dome from left pinna, margins were inverted. Wound was bleeding profusely.
(2) A lacerated wound 1.75 c.m x 1 c.m. x bone deep at back of left side of, head, 5 c.m. Above from left pinna and 4.05 c.m. Back to the injury No,1 margins were everted and bleeding profusely.
(3) A lacerated wound 0.75 c.m. x 0.75 c.m. Going deep at front and upper part of left shoulder, margins were inverted, bleeding profusely, 11 c.m. Away from base of left side of neck. There was corresponding holes in shirt and vest.
(4) A lacerated wound 0 75 c.m. x 0.75 c.m. Deep going at front and lower part of left shoulder.
12. Bleeding profusely. Margins of the wound were invested 6 c.m blow injury No,3. There was corresponding holes in the shirt and vest.
(5) A lacerated wound 0.75 c 0.75 c.m. Deep going at mk .1 left shoulder blade, margins were everted, bleeding profuscly with corresponding hole in shirt and vest.
13. ' Injury No,1 and Injury No,3 which are entries wounds, have different dimentions. Those have been caused by two different weapons. The dimention of Injury No,1 shows that it was caused by a bullet, while dimention of Injury No,3 shows that it was caused by a 12 bore gun. So, the arguments of learned counsel for the appellants, that it was a case of single shot is misconceived.
14. ' It may be noted here, that the presence of two eye witnesses alongwith their father at the place of occurrence cannot be kept out of consideration because the appellant's party had not contested that there was not the turn of water of the complainant party and they were not present to irrigate their lands. Specific injuries are attributed to Iftikhar and Akram appellants and these injuries are borne out from the medical account. The source of light has been mentioned in the F.I.R. The lantern was taken into possession by the Investigating Officer vide memo. Exh.P.M. There were 25 pellets marks on the wall of the Dhari. Seven crime empties of 12 bore gun alongwith one empty of rifle were recovered. The contention of learned counsel that no independent witness has been produced is without force because there was no direct enmity between the parties. The enmity as suggested is farfetched arguments. In toto the prosecution has proved its case against lftikhar and B Muhammad Akram appellants to its hilt. The appeal to the extent of both Iftikhar and Akram is dismissed. However, it may be observed that in the F.I.R. Itself it was stated by the complainant himself that when he alongwith other P.Ws. And father was present at their Dhari, Iftikhar alias Khari appellant son of Muhammad Ali came there, the deceased abused him stating that he was his enemy and why he had come to his Dhari and thereafter, Iftikhar being provoked left the spot with the remark that he would teach a lesson. It shows that it was the deceased who was responsible for this occurrence because no provocation was extended by the appellants to the deceased rather Iftikhar appellant was abused by the deceased. In our view, it is a case of sudden flare up and not of premeditation. Taking it to be a mitigating circumstance, we convert the sentence of Iftikhar appellant from death to life imprisonment with the benefit of section 382-B, Cr,P.C. The sentence of compensation and under sections 148/149, P.P.C. Is maintained.
15. ' Now we take up the case of Shah Muhammad, Muhammad Ali, Muhammad Ilyas and Shabbir Ahmad. No injury whatsoever is attributed to them. Muhammad Ali is father of Iftikhar Ahmad. The remaining appellants are also related inter se. There was no injured P.W. In this case. The tendency of false implication of close relation of the actual accused is on its height. A contention was raised by learned counsel for the complainant that the crime empty of rifle 7-MM recovered from the spot matched with the rifle of Muhammad Ali is of no benefit to the prosecution for the reason that it was story of the prosecution itself that Muhammad Ali after seeing the raiding party threw away his rifle on the roof of his house on 26-10-1994 which was later on, sent to fire-arm expert on 21-11-1994.
16. Therefore, no reliance can he placed on the. report of firearm expert. He is 75 years of age.
17. ' In this view of the matter, appeal to the extent of Shah Muhammad, Muhammad Ali, Muhammad Ilyas and Shabbir is accepted. Conviction and sentence recorded against them by the learned trial Court is set aside. They are on bail, their bail bonds shall stand discharge.
18. ' The death sentence awarded to Iftikhar alias Khari appellant is not confirmed. To his extent murder reference is answered in the negative.
19. ' Before parting with this judgment, a perusal of line 18 of page 42 of the impugned judgment of the learned trial Court makes a very interesting reading. The learned trial Court having held the accused guilty under sections 302/149, P.P.C. Has awarded 10 ,ears' R.I. Section 302,. P.P.C. May be eproduced hereunder:
302. Punishment of Qatl-i-Amd.---- Whoever commits Qatl-e-amd shall, subject to the provisions of this Chapter be--
(a) Punished with death as Qisas;
(b) Punished with death for imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) Punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable; ' In this case, the learned trial Court did not even bother to mention under what clause of section 302, P.P.C., he was convicting the accused. It may be noted here, that if the case of an accused is covered under section 302 (c), P.P.C. Then lesser punishment can be awarded because the accused in that case is held to have acted in the right of private defence of body and property but the trial Court has to give the reasons for coming to such a conclusion. In the instant case, the learned trial Court simply convicted and sentenced the accused under sections 302/149, P.P.C. To undergo 10 years' R.I. We failed to understand as to how the learned Additional Sessions Judge without mentioning any reasons for lesser sentence, awarded 10 years' R.I. Without commenting any further suffice to observe that a copy of this judgment alongwith copy of the impugned judgment rendered by Mian Maqsood Ahmad Baitu, Additional Sessions Judge, shall be placed before the Hon'ble Inspection Judge of the District and a copy thereof shall also be placed alongwith his A.C.R. Dossier.