KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,798 of 1997 filed by Muhammad Amin, and Shamsher Ali. appellants who were convicted and sentenced by Additional Sessions Judge, Sargodha vide his judgment dated 8-12-1997 as under: Muhammad Amin appellant, under section 302-B, P.P.C., death and to pay Rs,50,000 as compensation to the legal heirs of Aman Ullah deceased or in default six months' R.I.
Shamsher Ali appellant, under section 337-A(1), P. P. C . two years' R.I. for causing injuries on the person of Muhammad Hanif P.W. and to pay Rs,10,000 as Daman, with the benefit of section 382-B, Cr.P.C.
Murder Refernece No,288 of 1997. for confirmation of death sentence or otherwise shall also be replied through this single judgment. Complainant Ahmad Khan has also filed Criminal Appeal No,23 of 1998 against the acquitted accused under section 302, P.P.C. etc.. which will also be disposed of through this single judgment.
It may be noted here that learned Additional Sessions Judge also convicted and sentenced co- accused of the present appellant namely Aurangzeb son of Sultan but he did not file and appeal against his conviction before this Court.
2. Occurrence in this case had taken place at 9-30 p.m. on 20-6-1996 within the jurisdiction of Police Station Shah Nikdar at a distance of 3 K.ms. away while the matter was reported to the police on the same day at 10-40 p.m. by Ahmad Khan complainant and the formal F.I.R. Exh.PA was recorded by Muhammad Iqbal, S.-I., P.W.12.
3. Brief facts of the prosecution case as disclosed by Ahmad Khan complainant in the F.I.R. Exh.PA are that on 20-6-1996 at about 7-30 p.m. Tahir and Muzahir accused were playing a tape-recorder in the Bazar in front of house of Allah Bakhsh Kamhar P.W., Aurangzeb, Shemsher Ali son of Haji Ghulam. Muhammad alias Gaman and Aurangzeb and, son of. Sultan accused were also present with them. Allah Bakhsh and his son Walayat stopped them for playing tape-recorder at high tone.
Tahir and others gave beating to said Allah Baldish and Walayat P.W., Allah Baldish and Walayat P.W. in injured condition came to the complainant with request to accompany them for lodging report at Police Station about the above mentioned incident. The complainant, Allah Bakhsh, Walayat Abdullah, Muhammad Hanif, Muhammad Rafi P.Ws. alongwith Aman Ullah (deceased) left towards P.S. on Wagon. At about 9-30 p.m., the complainant and others named above reached near Dukhi More within the area of Chak No,174 NB, the motorcar and motorcycle confronted them.
Zulfiqar, Muhammad Amin, Surfraz, Muhammad Hanif, Muhammad Sher and Aurengzeb son of Sultan came out of the said car. Shamsher Ali and his brother. Aurangzeb were riding on motorcycle, Zulifiqar, Muhammad Sher, Aurengzeb son of Haji. Ghulam Muhammad were armed with Sotas. Muhammad Ameen and Sarfraz accused were armed with gun .12 bore. Shamsher Ali was armed with rifle. Muhammad Hanif and Aurengzab son of Sultan were armed with hunters all the accused made the complainant and his companions alight from the wagon and threatened them that they would not allow them to go to Police Station. Zulfiqar, Sarfraz, Muhammad Sher, and Auregnzeb son of Gaman raised Lalkara that they should not go to P.S. and insisted get down from the wagon. They further threatened them that they would not leave alive anybody if any one will proceed further. On this Aman Ullah, Muhammad Haneef and Abdullah replied that they will go to P.S. Meanwhile Muhammad Ameen accused with .1-2 bore gun made a fireshot hitting on the backside of right shoulder of Aman Ullah. Muhammad Abdullah stepped forward to rescue Aman Ullah when Muhammad Ameen accused gave a butt blow on the left flank of Abdullah P.W. When Muhammad Hanif came forward Shemsher accused gave him butt blow hitting on his head.
Aurangzeb son of Sultan gave a hunter blow landing underneath the right eye shoulder of Haneef P.W. Aurangzeb also gave another hunter blow on the right shoulder of Haneef P.W. The complainant and his companions raised hue and cry, all the accused left the place of occurrence.
After the departure of the accused Aman Ullah was found dead. The said occurrence took place on the abetment of Tahir and Muzahir accused.
4. Investigation of the case was taken over by Muhammad Iqbal, S.I., P.W.12. After registration of the F.I.R., he went to the place of occurrence, prepared injury statement of Exh.PK, inquest report Exh.P.L. regarding the dead body of Amanullah deceased; also prepared injury statement of the witnesses Exh.PF/1, Exh.PG/1, Exh.PH/1 and Exh.PI/1 relating to Muhammad Haneef; Muhammad Abdullah, Walayat Ullah and Alah Bakhsh respectively; as a result of the supplementary statement of the complainant section 109, P.P.C. was added, on 30-6-1996 Aurangzeb accused was arrested alongwith Hunter P.6 which was taken into possession vide memo. Exh.P.O., then Muhammad Amin, Hanif and Zulfiqar accused were arrested; Hanif while in custody got recovered Hunter P.7 which was secured vide memo Exh.PP; on the same day, Zulfiqar accused led to the recovery of sots P.8 which was secured vide memo. Exh.PQ, similarly. Muhammad Amin got recovered gun P.9 which was taken into possession vide memo. Exh.PR; the car used in the commission of offence was secured vide memo. Exh.P.S., thereafter, this P.W. was transferred and the investigation of the case was taken over by Muhammad Akram, S.-I., P.W.13. He arrested Shamsher Ali and Sarfraz accused on 3-8-1996, Shamsher while in custody led to the recovery of .7-MM rifle P.1 which was taken into possession vide memo Exh.PD, Muhammad Sher, Aurangzeb, Tahir and Muzahir were placed in Column No,2 of the report under section 173, Cr.P.C.
5. At the trial prosecution in order to prove its case produced 13 witnesses in all, thereafter, learned D.D.A. tendered in evidence reports of the Chemical Examiner and Serologist Exh.PT and Exh.PU respectively and closed the prosecution case then the statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence.
6. After having read the entire prosecution evidenced, statements of the appellants recorded under section 342, Cr.P.C. and other relevant material available on record, learned counsel for the appellants submits that F.I.R. is a false and fabricated document which was recorded after due deliberation and consultation that complainant-had stated before the learned trial Court that F.I.R. was lodged at 11-30 p.m. but in fact it was registered at 10-40 p.m., that conspiracy/ abetment had not been proved by the prosecution, that story of motorcycle and Car as given by the prosecution before the learned trial Court was found to be false, that prosecution had also changed the venue of occurrence from Chak No,174/NB to Chak No,153 NB, that ocular account is based on related/interested witnesses, that bulk of accused have been found innocent, that Aurangzeb, Tahir, Muzahir and Muhammad Sher accused were innocent in this case, that according to Ahmad Khan, complainant before the learned trial Court fire was -allegedly shot by Muhammad Amin appellant from the front side but there is injury on the back side of right shoulder of the deceased, that injury on the neck is an exit wound and not of entry wound, that there is a conflict between ocular account and medical evidence, that occurrence had taken place at 9-30 p.m. when it was dark, that in the earlier occurrence Allah Bakhsh, and Walayat had received one injury each, that there is two accused of abetment and eight were shown to be present at the spot, that motive if any was with the complainant party, that neither Aman Ullah nor the Ahmad Khan complainant had any connection with the motive of the case, that seven accused have been acquitted amongst the 10 accused, that no reliance can be placed on these interested witnesses without any independent corroboration, that if both the versions, one put forward by the appellants and the other put forward by the prosecution are put in juxta position, the version of the appellants seems to be more plausible and convincing one, that there is no report of fire-arm expert on the record, that prosecution has failed to prove its case against the appellants beyond any shadow of doubt, that in fact offence if any is of "Qatl-iKhata" and not of "Qatl-i-Amd", that in the instant case the sentence if any cannot be maintained under section 302(b), P.P.C. but it is a case which fall under section 302(c), P.P.C. Further submits that trial Court had also held in his judgment that it was a case of sudden flare up and appellants had not taken any undue advantage.
7. On the other hand, learned A.A.-G. assisted by learned counsel for the complainant submits that Muhammad Amin appellant is the main accused in this case, that he was armed with fire-arm and he caused the injury on the vital part of the body of the deceased which proved fatal, that ocular account is in lines with the medical evidence, that recovery of gun from Muhammad Amin appellant was effected and that prosecution has proved its case against the appellants beyond any shadow of doubt. They both support the judgment of the learned trial Court.
8. We have heard learned counsel for the parties at a great length and have also gone through the record very, minutely with their able assistance. In the instant case, Muhammad Amin appellant has taken a specific plea while cross-examining Ahmad Khan complainant and we would like to refer the suggestion put to Ahmad Khan P.W. in the last paragraph of page 34 of the paper book as under: "It is incorrect to suggest that Abdullah P.W. was trying to snatch the gun of Muhammad Amin accused when during the scuffle it went of hitting the deceased on the back side of his shoulder. "
The abovesaid suggestion would show that appellant had admitted his presence at the spot. He also admitted that he was having a gun. Further he admitted that the shot was hit on the back side of the shoulder of the deceased. After going through this suggestion, the arguments of learned counsel for the appellants that there was a conflict between ocular account and medical is not correct, even otherwise a person who is being attacked tries to save his life and in our opinion when deceased in or4er to save his -life tried to run, he was fired which hit him on the back side of his shoulder, deceased was not a statue and he was a human being there was no previous background of enmity between the parties. Besides the complainant one injured witness, namely, Hand had also appeared and alongwith him Allah Bakhsh also appeared. Mere relationship of the witnesses with the deceased having no enmity cannot be termed as an interested witness. The findings of learned Additional Sessions Judge that it was not a premeditated murder but occurrence took place at the spur of the moment, we are not going to accept this for the reason that when complainant was going to Police Station to lodge the report about the earlier incident in which Walayat and Allah Bakhsh were injured, the appellant party tried to stop them and insisted them not to go to Police Station and when the complainant party refused to accept the same, Muhammad Amin appellant fired a shot on the person of the deceased which proved fatal. The gun was also recovered from Muhammad Amin appellant. The contention of learned counsel for the appellants was that no crime empty was recovered from the spot, that's, for the reasons that only one shot was fired by the appellant, unless the gun is reloaded the empty would not fall so there was no question of crime empty to be recovered from the spot, ocular account is fully corroborated by medical evidence, version of the appellant that gun went on accidentally is not believable to us. The learned trial Court had already while following the principle to sift the grain from chaff have acquitted seven accused persons.
9. However, there is a mitigating circumstance in favour of the appellant Muhammad Amin for lesser sentence, that's, that the complainant and the accused was not connected with the motive but motive if any was that to Walayat and Allah Bakhsh who were injured in the earlier incident, Tahir and Muzahir who were accused of abetment had the motive, they were not present alongwith the present appellants at the time of occurrence, they were accused of abetment and have been acquitted by the learned trial Court. In our considered view when a motive has been set up by the prosecution then it is duty of the prosecution to prove the same but prosecution failed to do so.
10.The irresistible conclusion of the above discussion is that we are fully satisfied that the prosecution has been successful in proving its case against the appellant to its hilt but we are also mindful of the fact that motive given in the F.I.R. by the prosecution is not the whole truth. To our mind, what happened immediately before the occurrence, nobody knows. rather the motive remained shrouded in mystery. This coupled with the fact that the appellant Muhammad Amin did not repeat the. shot make out a case of mitigating circumstance in favour of the appellant for lesser penalty. For this view, guidance can be had from the case of Muhammad Arsand and .2 others v. State (PLD 1996 SC 122). In these circumstances, we though maintain the conviction of Muhammad Amin appellant under section 302(b), P.P.C. but reduce the sentence to death into one imprisonment for life with the benefit of section 382-B, Cr.P.C. However, the amount of compensation Rs,50,000 already awarded by the learned trial Court is maintained or in default six months' R.I. Death sentence of Muhammad Amin appellant is not confirmed. Murder reference is replied in the negative.
11.As far as the conviction and sentence of Shamsher Ali, appellant is concerned. that' s , maintained.