' NAZIM HUSSAIN SIDDIQUI, J.---This appeal by leave of this Court is directed against judgment, dated 16-1-1998 passed in Criminal Appeals. Nos.22, 23 and 24 of 1997 and Murder Reference No,13 of 1997, whereby the above appeals and said reference were disposed of in terms of the impugned judgment.
2. The occurrence took place in the night intervening between 30/31-8-1994 at about 3.00 am. In the house of Allah Ditta complainant situated in Mouza Jillani Tehsil Hasilpur, District Bahawalnagar. The report was made at Police Station Qaimpur on 31-8-1994 at about 8-00 a.m.
3. According to F.I.R., in the night of occurrence the complainant was sleeping in his house alongwith his children. At about 3-00 a.m. He woke up on hearing alarm and in the light of a lantern he had seen Bashir Ahmed, Lashkar and Akhtar co-accussed/convicts, armed with 12 bore shotguns, Anwaar, Zawar and Amir with carbines. Ramzan with sota and Muhammad Amin empty handed. They were standing in the courtyard of his house and were raising lalkaras that they would kill his sons namely, Manzoor Ahmed and Amir Ahmed. In the meantime, Bashir Ahmed fired a shot, which hit Manzoor Ahmed on his left thigh, and the shots fired by Lashkar and Anwar hit him on his right leg and right calf, as a result of which, he expired. Akhtar also fired, which hit Amir on his right leg. Thereafter, the petitioner and co-accused abducted Mst. Shamim Mai and took her away in a car.
4. The motive, as set up, was that convict Bashir Ahmed suspected that Manzoor Ahmed deceased had illicit terms with a woman related to said convict.
5. At the conclusion of trial learned Special Court II-Bahawalpur, as per judgment dated 19-11-1997, convicted Bashir Ahmed, Anwaar, Akhtar, Zawar and Muhammad Amin under sections 302-(b), 148, 149 and 109, P.P.C. Read with 120-B, P.P.C. For the Qatal-e-Amad of Manzoor Ahmed, Bashir Ahmed, who planned the strategy of this crime, was sentenced to death. Anwaar, Akhtar, Zawar and Muhammad Amin were sentenced to suffer life imprisonment. All above named five accused were also sentenced to pay fine of Rs,15,000 each under section 544-A, Cr.P.C.. To the legal heirs of deceased or in default thereof to further undergo R.I., for two years each.
6. Bashir. Ahmed, Anwaar, Akhtar, Zawar and Amin were also convicted for committing murderous assault on Amir Ahthed injured P.W., under sections 324/149/120-B, P.P.C. And were sentenced to suffer R.I. For 10 years each and to pay fine of Rs,15,000 each in default thereof to further undergo R.I.
For two years each. All above named were also convicted and sentenced to suffer two years' R.I.
Under section 148, P.P.C. Bashir Ahmed, Akhtar, Anwaar, Zawar and Amin were also convicted and sentenced under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 for abducting Mst. Shamim Mai and were sentenced to suffer imprisonment for life and to whipping of ten stripes each. Aktitar, Amin, Zawar, Bashir and Anwaar were also convicted under section 110(3) of the Offence of Zinp (Enforcement of Hudood) Ordinance VII of 197.9 for committing Zina-bil- Jabar upon Mst. Shamim Mai as Tazir and were sentenced to suffer R.I. For 15 years each and whipping of the 10 tripes each. All above sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended to them.
7. Muhammad Aslam, Amir, Nazir, Munir and Lashkar were sentenced under sections 302/149, P.P.C.
Read with sections 109, 120-B, P.P.C. And sentenced to imprisonment for life each for committing abetment through conspiracy for Qatl-e-Amd of Manzoor deceased and they were sentenced to pay a fine of Rs,15,000 each under section 544-A, Cr.P.C. Or in default thereof to undergo R.I. For two years each. They were also convicted under sections 324/149/109/120-B, P.P.C. For committing the offence of abetment through conspiracy for murderous assault on Amir Ahmed injured P.W. And sentenced to suffer ten years each and to pay fine of Rs,15,000 each or in default thereof to undergo R.I. For two years each. They were also sentenced under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 read with sections 109/120-B, P.P.C. For committing the offence of abetment of abduction of Mst Shamim Mai through conspiracy to suffer imprisonment for life with whipping of ten stripes each and to pay fine of Rs,10,000 or in default thereof to suffer R.I. ,for one year each.
8. In appeal before High Court conviction of Bashir Ahmed, Anwaar and Akhtar under sections 302(b)/34, P.P.C. Was maintained, but the sentence of Bashir Ahmed accused was altered from death to imprisonment for life. Bashir Ahmed, Anwaar and Akhtar were also convicted under section 324/34, P.P.C. For causing injuries to Amir Ahmed P.W., and were sentenced to seven years R.I. The sentences were ordered to run concurrently and benefit of section 382-B, P.P.C. Was extended to them.
9. The convictions and sentences awarded to Bashir Ahmed, Anwaar and Akhtar for other offences were set aside. The convicts; however, were order to pay compensation under section 544-A, Cr.P.C. Amounting to Rs,one lac each to the legal heirs of the deceased with a direction that they were liable to pay aforesaid amount individually as well as jointly. In case, the amount was not paid as above, the same was to be recovered as arrears of land revenue form property of all of them or any one of them. If the amount was not recovered the convicts were to undergo sentence of 5 years' R.I. Each. Amir, Muhammad Asram, Nazir, Munir, Muhammad Amin, Zawar and Lashkar were acquitted. Murder Reference was answered in the negative and criminal appeals were disposed of with above modification in the convictions and sentences.
10. This criminal appeal was filed by Anwaar Hussain and Akhtar Hussain appellants. It was time- barred by 733 days, but the delay was condoned vide leave granting order, dated 8-1-2001.
11. Having examined in detail the evidence brought on record, it was ordered that Akhtar Hussain appellant had committed the offence for which he was charged. Further, it was held that his conviction and sentence did not warrant any interference. Leave to appeal was refused to him.
12. Leave to appeal was granted to Anwaar Hussain appellant to examine the evidence led against him and also to determine the imprisonment to be suffered by him in default of payment or recovery of compensation under section 544-A, Cr.P.C.
13. We have examined entire record with the assistance of learned counsel, who represented Anwaar Hussain appellant.
14. It is contended on behalf of Anwaar Hussain, appellant that occurrence took place in the night and the appellant was alleged to have been identified in the light of a lantern and that there was every possibility of mistaken identity in this matter. Learned counsel also argued that, under the circumstances, benefit of doubt should have been extended to the appellant.
15. Abdul Aziz P.W. Is an eye-witness of the occurrence. He clearly stated in his deposition that the appellant was armed with a carbine and he had also fired upon the deceased. The witness is son of the complainant and was inmate of the house and his presence on the spot was not challenged.
The appellant was also nominated in the F.I.R. The complainant party and accused persons were known to each other. Allah Ditta complainant also deposed that Anwaar Hussain appellant was one of the accused and was armed with carbine and had fired upon the deceased, which hit on his (deceased) right "pindali". The deceased had sustained several fire-arm injuries and all the persons named earlier had fired upon him with the intention to kill him. The contention of learned counsel that at the most the appellant could be held responsible only for causing injury at "pindali", as such, could not be convicted for life imprisonment, is without substance. The way the deceased was fired at, it is immaterial that whose shot proved fatal. The appellant was equally responsible for the death of deceased. It is not a case of any mistaken identity nor of awarding lesser punishment to him. Judgment of High Court with regard to his conviction is correct and not open to any inteference.
16. As regards, imprisonment under section 544-A, Cr.P.C., the section clearly provides that the imprisonment shall not exceed six months. Accordingly, it is ordered that in case of default in payment of compensation or recovery thereof, the appellant shall suffer imprisonment for six months and not five years as held by High Court.
17. In above terms the appeal is dismissed.