' DEEDAR HUSSAIN SHAH, J.---This appeal by leave of the Court is directed against the judgment, dated 26-6-1996, passed by a Division Bench of the Lahore High Court, Lahore, in Criminal Appeal No,408 of 1992 and Murder Reference No,183 of 1992.
2. The facts, in brief, are that Ghulam Qadir (complainant) lodged F.I.R. No,215 of 1991 at Police Station Sadar, Gojra, District Toba Tek Singh, on 23-6-1991, alleging therein that on the fateful day, at about 8 a.m. He accompanied by his sons Nisar Ahmad and Abdul Ghaffar, Ghulam Miran son of Faqir Muhammad, Abdul Sattar and Muhammad Salim son of Ghulam Miran went to. Eid Gah for offering Eid-ul-Azha.Prayers..After the prayer, Liaqat Ali and Irshad appellants armed with Chhuris, already present in the Eid Gah, launched an attack on Abdul Ghaffar (P.W.11). Liaqat Ali appellant dealt Chhurri blow on the left side of neck of Abdul Ghaffar while Irshad Ali appellant inflicted a Chhuri blow on the right shoulder of Muhammad Salim. Abdul Sattar. Nisar Ahmad and other villagers who had come to offer Eid prayers, intervened and separated the parties. Ghulam. Qadir complainant (P.W.8) further stated that after the said incident they were coming back to their houses and when they reached Deh Chowk, Liaqat and Irshad appellants emerged there along with Waris Ali and Safarash Ali appellants armed with guns, Riasat Ali and Mudassar armed with Chhuris and Khalil alias Khalila armed with a gun. Mudassar raised a Lalkara to teach a lesson to the complainant side for having assaulted Hassan Muhammad and exhorted the other appellants not to let the complainant side go alive from the scene of occurrence. Riyasat Ali appellant inflicted a Chhuri blow on the right shoulder of Abdul Sattar deceased, while Waris Ali fired a gun shot which caused injury below the right armpit of the deceased. Safarash Ali appellant fired a shot on Abdul Sattar deceased causing injury on his right flank. Khalil alias Khalila appellant also fired a shot at Abdul Sattar deceased hitting his right buttock. Thereafter, Waris Ali, Safarash Ali and Khalil appellants fired more shots hitting right side of the buttock of the deceased. Ghulam Miran (P.W.9) came forward to rescue Abdul Sattar deceased, but Waris Ali appellant fired a shot hitting the back of his right palm. Safarash Ali and Khalil then fired shots at Ghulam Qadir complainant hitting the lower part of his abdomen. Nisar Ahmad (P.W.12), son of the complainant, was also fired at by Waris Ali and Khalil hitting the lower part of his abdomen. The appellants then decamped. The complainant side arranged for a wagon and all the injured were removed to Civil Hospital, wherein Abdul Sattar succumbed to his injuries.
3. Motive for the commission of offence, as stated by the complainant, was that about six months prior to the occurrence, Nisar Ahmed injured P. W.12 had insulted Hasan Muhammad, father of appellants Nos.1 to 4 herein, and thus with a view to seek revenge of the said occurrence, the appellants had launched premeditated assault on complainant party killing Abdul Sattar deceased and causing injuries to P.Ws. As per F.I.R., Ch. Muhammad Boota, Member, District Council, Faisalabad had intervened and brought about a settlement between the complainant party and Hassan Muhammad but the appellants still harboured a grudge.
4. On 11-7-1991, Barkhurdar, S.H.O. (P.W.13) arrested all the accused. During investigation, on 20-7- 1991, Muhammad Ilyas appellant led the S.H.O. To the house of Safarash Ali appellant from where he got recovered Chhuri, which was taken into possession. On the same day Investigating Officer recovered a Chhuri each from the possession of Liaqat Ali and Irshad Ali appellant from their respective houses, which were taken into possession. The said recoveries were witnessed by Muhammad Din P.W.4, Burkhardar, Investigating Officer P.W.13 and Ghulam Muhammad (not produced). On 13-7-1991 Khalil alias Khalila appellant led to the recovery of a gun from his house alongwith two live cartridges which were taken into possession. On the same day a Chhuri was recovered at the ' pointation of Riyasat Ali appellant from his house.
5. Vide judgment, dated 29-4-1992, the learned trial Court convicted Khalil alias Khalila appellant under section 302, and sentenced him to death for the murder of Abdul Sattar deceased. Rest of the appellants were convicted and sentenced to imprisonment for life each on the charge under section 302/149, P.P.C. Under section 148, P.P.C. All the appellants were convicted and sentenced to R.I. For two, years each, and a fine of Rs,2,000 each, or in default thereof to further undergo R.I. For six months each. Under section 324/34, P.P.C. Irsand Ali and Liaquat Ali appellants were convicted and sentenced to five years' R.I. Each on two counts, and fine of Rs,2,000 each, or in default thereof, to one year R.I. Each for having launched murderous assault on Abdul Ghaffar and Muhammad Saleem P.Ws. Under section 324/149, P.P.C. All the appellants were further convicted and sentenced to five years' R.I. Each on three counts and fine of Rs,5,000 each, or in default thereof, to suffer one year R.I. Each for having committed murderous assault on Ghulam Miran, Ghulam Qadir and Nisar Ahmed P.Ws. It was directed that in the event of the recovery of fine, half of the amount shall be paid to the injured P.Ws. As compensation.
6. Feeling aggrieved, the appellants filed separate appeals in the Lahore High Court. A learned Division Bench of the High Court accepted the appeal of Mudassar Ilyas and acquitted him giving him the benefit of doubt, but dismissed the appeals of the appellants hetein maintaining their conviction and sentences..
7. Leave to appeal was granted by this Court to reappraise the entire prosecution evidence in order to ensure safe administration of the criminal justice in this case.
8. Mr. M.A. Zafar, learned Advocate Supreme Court for the appellants contended that the learned High Court failed to properly appreciate the evidence in consonance with the settled principles of appreciation of evidence in criminal cases; that in order to award conviction on capital charge evidence should come from an unimpeachable source; that the F.I.R. Was recorded after preliminary investigation and it was not recorded so promptly as alleged by the prosecution, that the learned Courts below acquitted Mudassar Ilyas on the ground that he had only been attributed a proverbial Lalkara but maintained the conviction of lrshad Ali and Liaqat Ali, who neither raised Lalkara nor assaulted any P.W. Or the deceased in the second occurrence; and that the case of Liaqat Ali and Irshad Ali stands on better footing from that of Mudassar that the Courts below erred in law by convicting three persons for one fire-arm injury on the person of the deceased; that the capital punishment was awarded to Khalil alias Khalila appellant simply on the statement of Barkhurdar Ahmad, Investigating Officer, that ocular account by P.Ws. Could not be relied upon as they had improved upon their version at the trial; that the opinion of the Investigating Officer, in any case, was not binding on the Court and that the death sentence awarded to Khalil alias Khalila could not be sustained. Learned counsel lastly urged that the occurrence was of a free fight in which the P.Ws. Received injuries and each of the appellants may be liable for his own act.
9. Ch. Ghulam Ahmad, learned counsel appearing on behalf of the State vehemently controverted the contentions of the learned counsel for the appellants and submitted that first incident took place in the Eid Gah where the appellants caused injuries with Churris to the P.Ws. Thereafter, they were attacked at Deh Chowk and the names of the appellants were duly disclosed in the F.I.R. With their specific role supported by the medical evidence, that the ocular evidence of the injured P.Ws.
Being reliable and trustworthy could not be brushed aside and that the learned trial Court awarded death sentence to Khalil alias Khalila for the reason that the fire-arm injury to the deceased was caused by him.
10. We have gone through the material available on the record and considered the contentions raised by the learned counsel for the parties. In this case, F.I.R. Was promptly lodged nominating the appellants with their specific role. The P.Ws. Received injuries during the incident as claimed by the prosecution which is duly supported by the medical evidence.
11. We are not persuaded to agree with the learned counsel for the appellants when he says that the learned High Court did not appreciate the ocular evidence in its true perspective or that there has been misreading and misconstruction, of the evidence. Obviously, presence of the ocular witnesses who sustained injuries at the hands of the appellants cannot be disputed. In fact their presence at the scene of offence has not been denied. The submission that this was a case of free fight between the parties is completely misconceived as none of the witnesses was armed with any weapon muchless deadly weapons. Besides, there is no injury on the person of any of the appellants including the acquitted accused Mudassar Ilyas. Ocular account furnished by the witnesses is not only consistent but also duly corroborated by medical evidence which' remains uncontroverted, The fact that appellants Irshad Ali and Liaqat Ali did not use their Churris in the incident after the return of the witnesses from the Eidgah at the Deh.Chowk does not detract from the position that they had caused serious Chhurri injuries to Abdul Ghaffar and Muhammad Salim and joined co-accused in the assault leading to culpable homicide of Abdul Sattar. Indeed the episode occurring at Deh Chowk was the continuation of the event initiated in the Eid Gah after Eid prayers. It is, therefore, difficult to hold that the part played by both of such appellants is identical to that of Mudassar Ilyas to whom only a Lalkara was attributed. It was the cumulative impact of the gun shots fired by appellants Khalil alias Khalila and Safarash Ali as well as Chhurri blow inflicted by Riasat Ali which resulted in the unnatural death of the deceased amounting to Qatl-i- Amd.
12. A reference was made to certain improvements made by the injured witnesses upon their evidence at the trial but in our view it is just an elaboration of the material facts divulged during the course of investigation: In any event, these statements do not amount to material contradictions and are not sufficient to discard the evidence of ocular witnesses. Overall effect of the evidence on record leads to an inevitable conclusion that the witnesses are natural, trustworthy and confidence-inspiring thus their version has ben rightly accepted by the trial Court as well as the High Court.
13. We have given our anxious thought to the question of propriety or otherwise of the sentence awarded to appellant Khalil alias Khalila. As observed, death of the deceased was due to fire-arm injuries by Khalil and Safarash Ali as well as Chhurri wound inflicted by RaisatAli. It is difficult to bifurcate the role played by each of the appellants and to hold appellant Khalil, liable to death for causing fatal shot leading to the death of the deceased. Learned counsel is correct to the extent that learned members of the Division Bench in the High Court fell into a grave error of law by concurring with the view expressed, by the trial Court while confirming the death sentence of appellant Khalil alias. Khalila on the basis of opinion of Investigating Officer. Learned trial Court was apparently persuaded to place heavy reliance on the opinion of the Investigating Officer that the fire-arm injuries on the person of the deceased were the result of one man shot and that according to the investigation appellant Khalil was responsible for the shot. We are not inclined to approve of this approach to the opinion of the Investigating Officer which was neither relevant nor in any event, binding on the Courts below. Furthermore, this opinion is not supported by independent evidence available on the record. As observed, death of the deceased was the result of cumulative act of firing as well as Chhurri blows caused by other appellant, therefore, instead of capital sentence he (Khalil) is entitled to equal treatment and lesser penalty prescribed by law.
Indeed this is a strong extenuating circumstance in favour of the appellant Khalil which in our considered view is sufficient for mitigation of the death sentence. We would, therefore, dismiss the appeal but modify the sentence of death in respect of appellant Khalil alias Khalila from death to life imprisonment which would be in the interest of justice and in line with the settled norms for administration of criminal justice.
14. For the aforesaid facts and reasons with the modification in sentence, as observed hereinabove, this appeal is dismissed.