DR. MUNIR AHMAD MUGHAL, J.---This judgment will dispose of Criminal Appeal No.296 of 1996 preferred by Noor Khan, Haji Muhammad Nawaz Khan and Amir Abdullah Khan and Criminal Appeal No.396 of 1996 preferred by Khan Amir Khan and Habib Ullah Khan against the judgment dated 27-3-1996 passed by Ch. Tajammal Iqbal Kamboh, Judge Special Court Suppression of Terrorist Activities, Faisalabad and Sargodha Divisions at Faisalabad in case F.I.R. No.102 dated 1-10- 1992 registered at Police Station Musa Khan, District Mianwali for an offence under sections 302/148/149, P.P.C. Whereby the learned trial Court has convicted Noor Khan son of Muhammad Nawaz Khan under sections 302/149, P.P.C. And sentenced him to death, and all the remaining accused were sentenced to imprisonment for life. He also passed conviction under section 148, P.P.C. Against all the appellants and sentenced them to R.I. For three years each and fine of Rs.50,000 each and in default of payment of fine to further undergo six months' R.I. Each.
2. The facts as alleged in the F.I.R. Are that on 1-10-1992 at about 7-30 a.m. Muhammad Aslam Khan, his wife Ghulam Aisha, Khaias Khan deceased and Ghulam Fatima his mother-in-law were present in the house. They were constructing the wall of the house of Khalas Khan in the area of Katey Khelan. He saw Haji Nawaz armed with .303 bore rifle, Khan Ameer armed with .7 mm, Noor Khan armed with Kalashnikov, Ameer Abdullah armed with China bore semi-automatic rifle and Habib Ullah armed with .222 bore rifle, all Lundi Khel Pathan by case, residents of Wanda Ludhu Khelianwala, emerged from maize crop and Muhammad Nawaz raised a Lalkara that they all would not escape today and instigated his co-accused to fire at them. Noor Khan accused fired with Kalashnikov at Khalas Khan which hit him on his left eyebrow and he fell down. The remaining accused persons also fired at them with their respective weapons. They took shelter nearby a wall.
The occurrence was witnessed by Mst. Aisha Khatoon and Mst. Fatima Khatoon. Then the accused persons while firing decamped towards their houses. He alongwith Mst. Aisha Khatoon and Mst.
Fatima Khatoon picked up Khalas Khan injured, who was not in sense's, was put on a cot and when reached near Chindhru Chowk, he expired. The motive behind the occurrence was that in 1991 during scuffle Khan An-leer Khan was injured and a case vide F.I.R. No.8, of 1991, under sections 3241148/149, P.P.C. Was registered at Police Station Musa Khan against them and on this score Khalas Khan was done to death by tiring. A case was registered against the accused persons and after completing the investigation the challan was submitted in the Court for trial, where formal charge-sheet was framed against all the accused under sections 302(a)/148, P.P.C. To which they pleaded not guilty and claimed trial.
3. The prosecution examined 11 P.Ws., namely, Muhammad Aslam Khan (P.W.1), Mst. Aisha Khatoon (P.W.2), Mehr Khan (P.W.3), Muhammad Ayyub (P.W.4), Muhammad Altaf (P.W.5), Muhammad Iqbal (P.W.6), Ikram Ullah (P.W.7), Noor Zaman (P.W.8), Ghulam Akbar (P.W.9), Nazar Hussain (P.W.10) and Mehrban Khan (P.W.11). The statements of the accused were recorded under section 342, Cr.P.C., in which all the accused-appellants stated that they were innocent. They did not appear on oath under section 340(2), Cr.P.C. After hearing the arguments on 'both sides the learned trial Court passed the impugned conviction and sentence.
4. In appeal it has been contended by the learned counsel for the appellants Noor Khan, Haji Muhammad Nawaz Khan and Amir Abdullah Khan that the learned trial Court has not made it clear as to under which clause of section 302, P.P.C. The appellants have been convicted and that the sentence of fine is not provided under section 302, P.P.C. As punishment for Qatl-i-Amd and that as many as five persons have been convicted for a solitary injury caused to Khalas Khan deceased allegedly with Kalashnikov which ultimately according to the prosecution, turned out to be a .7 mm rifle having the appearance of Kalashnikov and that no injury has been attributed to appellants Haji Muhammad Nawaz and Amir Abdullah Khan and the only allegation against them is of ineffective firing which stood belied during the investigation of the case and that the empties allegedly recovered from the spot did not match with any one of the weapons said to have been recovered from the accused and that according to the conviction slip Amir Abdullah Khan was 75 years of age at the time of occurrence and being an-old and infirm person he was wholly incapable of taking part in the present occurrence.
5. The learned counsel for the appellants Khan Ameer Khan and Habib Ullah Khan has also taken the same stand with the addition that there is no independent corroboration to support the ocular evidence and that the witnesses were interested and inimical and that the sentence was severe and uncalled for in the circumstances of this case.
6. We have examined the whole record with the able assistance of the two learned counsel for the appellants and the learned counsel for the complainant and the learned State Counsel and have also heard them at length.
7. The admitted position on the record is that according to the post--mortem examination report (Exh.P.Q.) the following injuries were found on the person of deceased Khalas Khan son of Muhammad Ameer:--
(i) A fire-arm would of 0.5 c.m. x 0.5 c.m. Round to ovel in shape with blackish and abraded margins situated at the left side of forehead, 1 c.m. Above to the left eyebrow and 2 c.m. To the left of middle line of the body from the bridge of nose. This is a wound of entrance.
(ii) A fire-arm wound of 5 c.m. x 4 c.m. Round to ovel in shape, with everted margin siguated on the back of scalp (central part) in the oxipital region slightly to the left of midline of body. There is associated fracture of oxipital bone, with brain matrics coming out of the wound. This is the wound of exit of injury No. l .
Both the injuries were caused by fire-arm weapon. The wound of entry when probed it was continuous with the exit wound. No foreign body recovered from the brain matrics and intracranial cavity. Both the injuries were ante--mortem. There was fracture of skull (oxipital bone) and frontal bone (hole in the bond). There was injury to the brain matrics, cerebrem and cerebeller cut.
8. In the opinion of the Medical Officer (P.W.11) the cause of death was due to head injury leading to intraeranial haemorrhage, shock and death. The injury No. l which is continuous to injury No.2 in ordinary course of nature was sufficient to cause death. The injuries were ante-mortem and caused by fire-arm. All other organs were healthy and large intestine was found full of faeces and bladder was half full. Stomach was found half full of coffee ground liquid (secretion). The blood- stained earth recovered from the spot was found stained with blood as per report of the Chemical Examiner (Exh.P.U.) and the origin of blood was found as human blood by the Serologist vide report (Exh.P.V.).
9. According to the complainant Muhammad Aslam (P.W.1) he, his wife Mst. Ghulam Aisha (P.W.2), Khalas Khan and Mst. Ghulam Fatima mother-in-law of the complainant were present and constructing the wall of the house of Khalas Khan in the area of Katay Khailan and saw Haji Nawaz, Noor Khan, Amir Abdullah Khan, Habib Ullah and Khan Ameer Khan happened to come there, Haji Nawaz Khan was armed with .303 rifle, Noor Khan was armed with Kalashnikov, Amir Abdullah Khan was armed with semi-automatic rifle, Habib Ullah was armed with .222 bore rifle and Amir Khan had .7 mm rifle: Muhammad Nawaz Khan raised Lalkara to take revenge of Khan Amir Khan for causing him injury and that. Noor Khan fired with his Kalashnikov at Khalas Khan which hit him at his left eyebrow and he fell-down. The remaining accused also fired at the eye-witnesses with their respective weapons and they took shelter nearby a wall of a room. The culprit ran away by raising Lalkaras. It is also admitted position that the northern wall where the deceased received injury was 6 feet high and the witness made improvements at the time of his deposition before the learned trial Court that at the time of sustaining injury Khalas Khan deceased was standing in Khurli (Manger). This P.W. Also admitted that he cannot give an count the number of shots which had been fired at them by the accused. He has also stated that none else except him and Mst. Aisha Khatoon and Mst. Ghulam Fatima were present at the time of occurrence. He also admitted that there was no mark of bullet or pellet on the wall of the Kotha where they were taking shelter at the time of occurrence. The prosecution has not examined Mst. Ghulam Fatima the mother of the deceased being unnecessary and have examined only Mst. Aisha Khatoon. She stated that the first shot was made by Noor Khan from a distance of 30/32 Karams which hit the deceased. The Investigating Officer who appeared as P.W.9 has stated in his cross-examination that the height of Noor Khan accused was about 5 feet and 7 inches and that he could not recover Kalashnikov from him and that he recovered rifle .7 nun resembling Kalashnikov (Exh.P.K.) on the pointation of the accused. The report of the Forensic Science Laboratory (Exh. P. W.) is negative. It means the recoveries though made are of no help to the prosecution but no dent could be made in the ocular evidence as the fire-arm injury to the deceased by Noor Khan accused is fully supported by the medical evidence.
10. The presence of other accused, Haji Muhammad Nawaz Khan Amir, Amir Abdullah and Habib Ullah appears to be doubtful as had the five persons attacked the result would have been altogether different. The presence of those appellants as deposed by P.W.1 Muhammad Aslam and P.W.2 Mst. Aisha Khatoon is not supported by the medical evidence or any other independent evidence. The admitted previous enmity between the parties for which there was motive can be the cause of enlarging the rope to involve the innocent persons. The arguments of the learned counsel for the appellants also find support from the record that there were two sets of accused namely, Noor Khan, Haji Muhammad Nawaz Khan and Amir Abdullah Khan and the other set of the accused namely Khan Amir Khan and Habib Ullah Khan. The complainant could not tell the names of the grand--father of Muhammad Nawaz Khan, Khan Amir and Habib Ullah Khan accused. It is admitted by the complainant Muhammad Aslam (P.W.1) that he cannot connect Haji Muhammad Nawaz Khan with Khan Amir Khan and Habib Ullah Khan accused. On the other hand relationship of the P.Ws isadmitted as close relationship as Mst. Aisha Khatoon (P.W.2) is the wife of the complainant (P.W.1) and utrine sister, of the deceased Khalas Khan and Mehr Khan. (P.W.3) is the real brother of Mst. Fatima. Sher Khan P.W. Is the real brother of Mehr Khan and the maternal uncle of the deceased. As such, they are acquitted of all the charges giving them the benefit of doubt.
They shall be released forthwith if not required in any other case.
11. We are convinced that only one fire shot was made by No.1 Khan alone and keeping in view all the circumstances prevailing in this case we do not find it proper to convict him under section 302(a), P.P.C. In our opinion the ends of justice will meet by convicting him under section 302(b), P.P.C. The sentence awarded to Noor Khan is, therefore, altered from sections 302/148/49, P.P.C. To only section 302(b), P.P.C: and he is sentenced to imprisonment for life. He is also directed to pay compensation of Rs.50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. And in case of default of payment of compensation to undergo further R.I. For six months. Benefit of section 382-B, Cr.P.C. Is also given to the accused.