' IFTTKHAR HUSSAIN CHAUDHRY, J.---Criminal case F.I.R No, 129, dated 19-5-1994 for offence under Section 302/34, P.P.0 was registered at Police Station, 'Sadar', Sialkot on the report of Imran Tajamal Khan against Murntaz Ahmad and Mukhtar Ahmad with the allegation that on 19-5-1994 at about 7-30 a.m. The complainant alongwith his brother Irfan Tajamal, mother Shahnaz Akhtar and children, was present in their house. On the knocking at the door of the house, Irfan Tajamal opened it. Complainant and his mother also went to the street and found Mukhtar Ahmad accused armed with pistol while Mumtaz Ahmad armed with revolver as having come on a Jeep bearing Registration No,234-3581/1986 Karachi-86, and standing in the street. Mukhtar Ahmad shouted that they be taught a lesson for quarrel with them. Mumtaz Ahmad fired a shot which hit Irfan Tajamal on his forehead who fell down on the ground. Mukhtar Ahmad tired at complainant but he took shelter behind the wall and shot hit a girl namely Mst. Sumera, daughter of Bashir Ahmad, who was passing by. Firing of shots attracted Muhammad Ashraf and Khan Dauran who also witnessed the occurrence. Wan Tajamal succumbed to the injuries.
' Motive behind the occurrence was stated to be a quarrel of Irfan Tajamal with Mukhtar Ahmad on 18-5-1994. The matter was patched up by the people of locality but none-the-less, the accused had committed the offence due to that grudge.
2. Criminal case, Exhibit-P.C/I was registered in the above terms at Police Station Sadar Sialkot on the report of Imran Tajamal complainant who later testified as Prosecution witness-3.
3. Murawat Ali, A.S.I.; Prosecution witness-13 after registration of case visited the place of incident, prepared injury statement and inquest report and sent the dead body to the mortuary for post- mortem examination. He collected blood stained earth from the place of incident and took into possession the Jeep. He recorded the statement of witnesses under section 161, Cr.P.C. He got prepared site plans from the Draftsman. He recorded the statements of Mst. Sumera, injured P.W.
He formally arrested the accused and recovered revolver alongwith two live bullets at the instance of Mumtaz Ahmad, accused. The investigation was then entrusted to another police officer who found Mumtaz Ahmad accused guilty in the case whereas name of Mukhtar Ahmad accused was placed in column No,2 of the report under section 173, Cr.P.C. The complainant being dissatisfied with the investigation filed a private complaint against the accused in which both the accused were summoned and on 28-11-1995 trial Court framed charge against them under' sections 324/34 and 302/34, P.P.C.
4. Prosecution examined 13 witnesses at the trial.
5. Dr. Syed Sajid Ali, prosecution witness-8 had medically examined Mst. Sumera daughter of Khurshid Ahmad and noted two injuries on her body. Sumera, however did not appear as witness in the trial Court.
6. Dr. Zafar lqbal Baig, Prosecution Witness-9 on 19-5-1994 at 1.50 P.M. Conducted the post-mortem examination on the dead body of Irfan Tajamal and noted the following injuries:
1. A Fire arm entry wound 1 C.M. In diameter, circular in shape on the middle' partof frontal part of head (middle part of frontal parietal region). Wound was cavity deep. Margins were inverted. Slight blackening and burning around the wound was present. Hair were burnt. Direction of the wound was from front to behind. Wound was just above hair-line on the forehead.
7. The Medical Officer had tendered in evidence copy of post-mortem examination report Exh. P.J.
8. Imran Tajamal, Prosecution Witness-13, brother of the deceased had lodged report, Exhibit-P.C. At Police Station. He reaffirmed the narrative contained in the First Information Report.
Prosecution witness-4 Mst. Shahnaz Akhtar mother of the deceased was the second eyewitness of the incident. She corroborated the testimony of complainant.
9. Murawat Ali, A.S.I., had carried out investigation initially. He had given the details of investigation conducted by as noted above. Rest of the evidence was of formal nature and does not turn on anything material.
10. The accused in their statement recorded under section 342, Cr.P.0 professed their innocence and pleaded their false implication in the case due to enmity. The accused, however, produced Muhammad Anwar Virk S.S.P. As D.W.1, Fazal Hussain D.S.P. As D.W.2, Muhammad Manzoor S.I. As D.W.3 and Muhammad Mushtaq Hussain D.S.P. As D.W.4 in their defence. The witnesses testified that the occurrence had erupted due to parking of vehicle in front of the house of the complainant who alongwith deceased objected to that and thereafter the deceased and complainant quarrelled with Mumtaz Ahmad who alone had fired during the incident. II. Trial Court after conclusion of trial believed the prosecution case to the extent of Muntaz Ahmad accused and convicted him under section 302-B, P.P.0 and sentenced him to death and also directed him to pay compensation amounting to Rs,20,000 under section 544-A, Cr.P.0 to the legal heirs of the deceased, Mukhtar Ahmad accused, however, was acquitted of the charges vide judgment dated 24-4-1996 passed by Additional Sessions Judge, Sialkot.
12. The convict appealed. Trial Court also referred the matter to this Court for confirmation of sentence of death imposed on the convict.
13. Learned counsel for the appellant contended that both the parties were closely related to each other and there was absolutely no enmity between the parties and this was an incident which had taken place suddenly without pre-meditation and due to attacking of the deceased and the complainant on Mumtaz Ahmad appellant who had parked his jeep in front of their house and this defence version was supported by as many as four Investigating Officers which included a Senior Superintendent of Police, two Deputy Superintendents of Police and one Sub Inspector none of whom were even put a suggestion that they had given a motivated opinion in the matter. It was submitted that this was a case in which accused had acted in self defence only and thus had committed no offence. In the alternative it was prayed that on account of the fact that the incident had taken place without premeditation this was a case in which maximum sentence could not have been awarded to the appellant. Learned counsel for State as well as complainant on the other hand argued that an incident had taken place between the deceased and Mukhtar Ahmad a day earlier and both the accused had come prepared to avenge insult caused to Mukhtar and this was a premeditated attack and Mumtaz Ahmad was rightly convicted and sentence awarded to him should also be maintained as he had done to death a young person.
14. It has been admitted before us that both the parties are related to one another and previously parties had good relations inter se. Excepting a solitary incident which had taken place a day earlier, no untoward incident had taken place between the parties, earlier. The back ground of that incident is ridiculously trivial. Mukhtar Ahmad and complainant party were virtually next door neighbours. Statingly Mukhtar Ahmad-acquitted accused, was taking tea in the house of complainant, a day earlier when a controversy arose between the deceased and Mukhtar regarding quantity of milk which a buffalo of the complainant family gave each day. That matter, however was settled amicably and mother of the deceased had gone to house of Mukhtar Ahmad in order to apologize for the incident. Claim of the prosecution is that in order to avenge that insult caused to Mukhtar Ahmad, aged 46 years, Mumtaz Ahmad aged 32 years, went in a jeep to the house of complainant. The accused then stating called out the deceased where he was shot at .
Since the incident has been admitted and another version has been advanced which was in terms that wife of Mumtaz Ahmad was in the family way and he had gone to fetch one Noor Begum to attend on his wife and he parked his jeep in front of house of the complainant and that deceased and complainant objected to this and started quarrelling with him in the course of which Mumtaz Ahmad fell on a pile of bricks and he in order to save his life fired with pistol which hit the deceased.
Sumera a young girl was also hit on account of firing at Mumtaz Ahmad. We are required to see as to which of the versions was nearer to truth.
15. The prosecution has tried to show the case to be a premeditated one. This in our view is not supported by attending circumstances of the case. House of Mukhtar Ahmad was located close by the house of complainant and in case Mumtaz Ahmad or Mukhtar had intended to attack or to do away with deceased, they could have easily come prepared from the house of Mukhtar Ahmad and would have chosen much more favourable time or place to cause harm to the deceased.
There was no need for the accused to have come on a jeep into a narrow and winding street of the Mohallah from where escape would have been difficult if not impossible. Then, if accused had intended to cause death of Tajamal, the accused could have easily pumped bullets into his body straightaway when he come out of the house and no preliminaries were required. There was no need for any prelude or exchange of words with each other. Mumtaz Ahmad had fired three shots during the incident. One of the shots had hit on top of head of the deceased. Another bullet had hit Sumera while the third one had failed to hit anything. This is clearly indication of the fact that Mumtaz had fired rather indiscriminately at the time of incident. It appears that trouble of some sort started between the deceased, the complainant and Mumtaz who probably was attacked whereafter Mumtaz was forced to react but in our view he overreacted in the matter because it has not been shown that the complainant or the deceased had used anything lethal or dangerous in the course of attack on him.
16. At least four Investigating Officers were examined in defence who supported the defence version. Three of the Investigating Officers concluded that Mumtaz had acted in self-defence. 4th witness however, had not subscribed to this view. None of the witnesses were given a suggestion that conclusions drawn by them were motivated due to extraneous considerations. The investigatory evidence as observed by us in Altaf Hussain and others v. The State (PLD 2000 Lahore page 216) has a place in criminal cases justice system in every jurisdiction. It can be given due consideration in criminal cases where the same is not motivated or dishonest. We have examined the record with care and we are of the view that incident which had taken place between, the parties a day earlier possibly had created some bitterness between the complainant party and Mukhtar Ahmad since acquitted. Mumtaz Ahmad, unwittingly or being oblivious of earlier incident, had gone to there to fetch Noor Begum so that she could attend on his wife who was in family way and gave birth to a child a day after the incident (vide Exh.D.F.). It appears that he parked his jeep in front of house of the complainant party. The complainant and deceased objected to this. A quarrel ensued between the parties, the deceased and complainant grappled with Mumtaz Ahmad who took out his handgun and fired rather indiscriminately. One of the shots tired by him had hit, the deceased who lost his life. This was a case in which trouble was initiated by deceased and complainant, and, therefore, in this case awarding of sentence of death to Mumtaz Ahmad has been found by us to be inappropriate, and unjustified. The accused did not appear to under imminent threat of annihilation but reactions cannot be expected to be well-calculated, in a charged atmosphere.
17. Conviction of Mumtaz Ahmad appellant under section 302-B, P.P.0 is maintained. Sentence of death awarded to him, however, is modified into imprisonment for life with benefit of provisions of section 382-B, Cr.P.C. The convict shall pay compensation to legal heirs of the deceased as directed by the trial Court.
18.Murder reference is answered in the negative.