' RUSTAM ALI MALIK, J.--- Through this judgment we intend to dispose of Murder Reference No,119 of 1997, Criminal Appeal No,327 of 1997, Criminal Appeal No,328 of 1997 and Criminal Revision No,304 of 1997.
2. The appellants namely Muhammad Azhar alias Ajja and Muhammad Waris had been tried by the learned Additional Sessions Judge, Sialkot in a case under section 302/34, P.P.C. And both of the appellants were convicted by the learned trial Court for committing Qatli-Amd of Muhammad Jameel deceased in furtherance of their common intention. Both the appellants/accused were sentenced to death and were also directed to pay an amount of Rs,50,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased. Their co-accused namely Mubashir Baig was declared a proclaimed offender during the trial and it was directed by the learned trial Court that he shall be tried as and when arrested (and brought before the Court for trial).
2-A. The brief facts are that the formal F.I.R. Exh.P.F./1 was registered on the basis of statement Exh.P.F. Of Bashir Ahmed complainant who had stated therein that he is a Khateeb of Jamia Nooria Qadria, Mohallah Hunterpura (Police Station Ugoke, District Sialkot) and was also running a grocery shop. His son Muhammad Jameel was working as an employee in Sialkot City. On the day of occurrence (i,e, on 23-11-1994) around 7-15 a.m. He came out of his house to proceed to his office.
The complainant also proceeded behind him in order to purchase certain grocery items from Sialkot City and he was at some distance behind his son. When Muhammad Jameel reached the Chowk of Government Girls High School, Hunterpura, Muhammad Azhar alias Ajja alongwith three unknown persons (who could be identified by the complainant) were found standing there. When Muhammad Jameel reached near them Muhammad Azhar alias Ajja raised Lalkara that he will teach a lesson to him for forbidding him from teasing the girls and also for forbidding him and his companions from staying outside his house and then he fired with the pistol hitting Muhammad Jameel in his right thigh. Muhammad Jameel turned back whereupon a companion of Muhammad Azhar alias Ajja fired with the pistol hitting Jameel on his left buttock and he sat down on the ground crying and beseeching Muhammad Azhar alias Ajja to forgive him then Muhammad Azhar alias Ajja fired the second pistol shot which hit him on the upper side of his chest. The companions of Azhar alias Ajja continued raising Lalkaras while holding pistols in their hands and shouting that anyone will come near them will be done to death. In the meanwhile Haji Muhammad Yousaf and Muhammad Ashraf, P.Ws. Reached there and witnessed the occurrence.
The complainant did not go near them on account of fear and the accused fled away towards Lorry Adda. He i,e, the complainant (with the assistance of Muhammad Lateef) removed his son in a Suzuki Pick-up to Civil Hospital, Sialkot where he succumbed to the injuries after about one hour.
3. In the F.I.R. It was also stated that Muhammad Jameel deceased used to forbid Muhammad Azhar alias Ajja from teasing the girls in the Mohallah and he also used to forbid Muhammad Azhar alias Ajja from standing in front of their house alongwith his companions and from indulging in filthy talk. The complainant alleged that Muhammad Azhar alias Ajja in consultation with his companions had killed his son.
4. After investigation the accused were challaned in this case and the same was subsequently sent up to the Court of Session for trial.
5. The prosecution has examined in this case as many as 12 P.Ws. Of them, P.W.12 is Muhammad Aslam, Sub-Inspector (Retired) who on 23-11-1994 was posted as S.-I. In Police Station Ugoke. He, on the said day, on the receipt of information about the occurrence had gone to Civil Hospital, Sialkot alongwith some police officials and had recorded the statement Exh.P.F. Of Bashir Ahmed complainant. He had examined the dead body lying in the Emergency Ward of the hospital and had prepared the inquest report Exh.P.J. He prepared the application Exh.P.J./1 for the post-mortem examination of the dead body and after completing the necessary papers he handed over the dead body to Shehzad Ghani and Muhammad Nawaz, Constables to escort the same to the mortuary. He deposed that Bashir Ahmed complainant at the time of recording his statement had also produced the medico-legal report of Muhammad Jameel Exh.P.A. He then proceeded to the place of occurrence and secured the blood-stained earth in the presence of witnesses, made it into a sealed parcel and took the same into possession vide recovery memo. Exh.P.C. He recorded the statements of eye-witnesses and the witnesses of recovery of blood-stained earth under section 161, Cr.P.C. He further deposed that Bashir Ahmed complainant got recorded his supplementary statement, giving the particulars, names and parentage of Waris and Mubashir accused. He prepared the rough site plan Exh.P.K. As per the instructions of the eye-witnesses. On the same day in the evening Muhammad Nawaz, Constable No,520 produced before him the last- worn clothes of the deceased Exh.P.1 to Exh.P.6 alongwith a sealed phial allegedly containing a bullet. These articles were taken into possession by him vide recovery memo. Exh.P.D. Which was signed by the witnesses. He recorded the statements of these witnesses under section 161, Cr.P.C.
He raided the house of the accused but they were not available. He got prepared the site plan of the place of occurrence from the Draftsman and which is Exh.P.E. And Exh.P.E./1. On 12-12-1994 in the presence of Bashir Ahmed complainant, Haji Muhammad Yousaf and Muhammad Ashraf P.Ws. He arrested Azhar alias Ajja accused and who got recovered the pistol Exh.P.7'and on unloading the same five live bullets were found there from and which are Exh.P.7/1-5 and both these articles were taken into possession by him vide memo. Exh.P.G. A separate case was got registered against the accused as he failed to produce any permit for the possession of weapon of offence. The Honda Motorcycle. No,STE-2013 Exh.P.9 which Azhar alias Ajja accused was riding at the time of his arrest was also taken into possession vide recovery memo. Exh.P.M. He also arrested Muhammad Waris accused and on his personal search the pistol Exh.P.8 was recovered and on unloading the same three live bullets Exh.P.8/1-3 were recovered and both were taken into possession vide recovery memo. Exh.P.H. He also prepared a rough site plan of the place of recoveries and arrest of the accused which is Exh.P.N. During cross-examination he denied that he had fabricated the supplementary statement of the complainant in collusion with him just to rope in the innocent persons.
6. The medical evidence in this case is furnished by P.W.1 Dr. Shahid Mehmood and P.W.2 Dr. Syed Sajjad Ali. Of them P.W.1 Dr. Shahid Mehmood stated that on 23-11-1994 at 7-15 a.m., while he was posted as Medical Officer, A.I.M. Hospital, Sialkot, he had medically examined Muhammad Jameel who was brought by his maternal-uncle Muhammad Lateef and had found the following injuries on his person:-
(1) Circular punctured wound 1-1/2 c.m. In diameter, inverted margins on right mid-clavicalar area of upper part of front of chest, depth not probed. Margins were also blackened.
(2) Oval shaped wound 1-1/2 c.m. In diameter, on back of right side of chest, lower part, depth not probed.
(3) Circular wound 1 c.m. In diameter, margins black, on left buttock about middle part, depth not probed. The margins were black and inverted.
(4) Oval wound 1-1/2 c.m. On left buttock about 4 c.m. Sperolateral to injury No,3, depth not probed.
(5) Circular wound 1 c.m. In diameter on right thigh front side, depth not probed, margins blackened and inverted.
(6) Circular wound 1 c.m. In diameter on back of right thigh about middle part, depth not probed.
' All the injuries had been kept under observation. He stated that all the injuries had been caused by fire-arm and the probable duration was 15 minutes to one hour and that there were corresponding tears on the clothes of the deceased i,e, Sweeter, shirt, jacket, vest, underwear and Patloon and all of which were stained with blood. The patient was admitted and referred to visiting Surgeon for expert opinion and management, Exh.P.A. Is the carbon copy of the M.L.R. Of Muhammad Jameel aforesaid.
7. P.W.2 Dr. Syed Sajjad Ali had conducted the post-mortem examination on the dead body of Muhammad Jameel deceased on 23-11-1994 at 12-30 p.m. He had found the following injuries on the dead body of the deceased;--
(1) Circular wound 1-1/2 c.m. Diameter, inverted and abraided margins which were also blackish, on mid-clavicular area of upper part of right side of chest.
(2) Oval shaped wound 1-1/2 c.m. x 1 c.m. On back of right side of chest lower part 3 c.m. Above costal margin and 11 c.m. On lateral side from midline, everted margins.
(3) Circular wound 1 c.m. Diameter, blackish and inverted margins, on back and outer aspect of left buttock at the level of injury No,3.
(4) Oval shaped wound 1-1/2 c.m. x 1 c.m. Everted margins on inner aspect of left buttock at the level of injury No,3.
(5) Circular wound 1 c.m. Diameter, inverted and blackish margins on front of right thigh, over lower middle part.
(6) Circular wound 1-1/2 c.m. Diameter, everted margins on postrolateral aspect of right thigh at the level of injury No,5. Injury No,1, was entry wound. Injury No,2 was exit wound.
' P.W.2 deposed that injury No,1 was an entry wound while Injury No,2 was an exit wound. Injury No,3 was entry wound whereas injury No,4 was exit wound. Similarly Injury No,5 was the entry wound while injury No,6 was the exit wound. In his opinion Injuries Nos.1, 2 and 3 were grievous and dangerous to life while Injuries Nos.3, 4, 5 and 6 were simple in nature. According to him, all the injuries had been caused by fire-arm and were ante-mortem. In his opinion, the death was caused due to injuries Nos.1 and 2 by shock and haemorrhage which was sufficient to cause death in ordinary course of nature. He stated that the probable time between injuries and death was within three hours and that between death and post-mortem examination was within 12 hours. Exh.P.B. Is the copy of post-mortem report and whereas Exh.P.B./1 is the sketch of injuries.
8. P.W.3 Nazeer Ahmed had joined the police investigation on 23-11-1994 and had attested the recovery memo. Exh.P.C. (which related to the parcel of blood-stained earth which had been taken into possession by the Investigating Officer from the place of occurrence).
9. P,W.4 Muhammad Akram stated that the deceased was son of the his maternal-uncle and he had identified his dead body on 23-11-1994 at the time of post-mortem examination. He had signed the recovery memo. Exh.P.D. By which the Investigating Officer had taken into possession the last- worn clothes of the deceased i,e, P.1 to P.6 alongwith a sealed phial.
10. P.W.5 is Noor Hussain who on 23-11-1994 was posted as Muharrir Malkhana, Police Station Ugoke.
He had kept the sealed parcels of blood-stained earth in Malkhana and had then sent the same to the office of Chemical Examiner, Lahore through Zulfiqar Constable.
11. P.W.6 Zulfiqar Ali, Constable No,118 had delivered the parcel containing blood-stained earth in the office of Chemical Examiner, Lahore.
12. P.W.7 Muhammad Nawaz, Constable No,520 alongwith Shehzad Constable had escorted the dead body of the deceased to the mortuary and after the post-mortem examination the doctor had handed over the last-worn clothes of the deceased alongwith a sealed phial and which he had then produced before the Investigating Officer and who took the same into possession vide memo. Exh.P.D. Which was attested by him i,e, P.W.7 and also by Shahzad Constable.
13. Akhtar Naqash, Draftsman who on 26-11-1994 had inspected the spot on the direction of the police and on pointing out of the P.Ws. And had taken rough notes and later on 29-11-1994 he prepared the site plan Exh.P.E. And Exh.P.E./1 in the scale of 1 inch equal to 20 feet.
14. P.W.11 Muhammad Azam, A.S.-I. Had recorded the formal F.I.R. Exh.P.F./1 on the receipt of complaint Exh.P.F.
15. The eye-witness account in this case is furnished by P.W.9 Bashir Ahmed and P.W.10 Muhammad Ashraf.
16. P.W.9 Bashir Ahmed complainant stated that the accused Azhar alias Ajja and Muhammad Waris (who were present in the Court while he i,e, P.W.9 was making statement in the Court) were known to him and that they were friends inter se. He i,e, P.W.9 was Khateeb in the mosque Jamia Nooria Qadira, Mohallah Hunterpura and he was also running a grocery shop in the said Mohallah and that Muhammad Jameel deceased was his son who was employed in some bank in Sialkot City which was meant for extending loans to the youth. He i,e, P.W.9 deposed that on 23-11-1994 at 7-15 a.m. His son left for his office and he also followed him in order to make some purchases for his shop from Sialkot City. Jameel was ahead to him and when he reached near Chowk of Government Girls High School, the accused were already present there and motorcycle Registration No,STE-2013 was also parked in a 'start' position and the make of the motorcycle was Honda 125 cc. When Muhammad Jameel deceased reached near them, Azhar alias Ajja accused raised Lalkara that as he i,e, Jameel used to forbid him and his companions from standing in front of his house in the street and also from teasing the girls he would teach him a lesson and at the same time Azhar alias Ajja accused fired a pistol. Shot at Muhammad Jameel hitting him on his right thigh. Muhammad Jameel went back on which Waris accused fired a shot at him, hitting on his left buttock and who sat down on the ground while crying. Muhammad Jameel beseeched Azhar alias Ajja that he be forgiven and that in future he will not forbid them from the- aforesaid acts but Azhar alias Ajja accused fired the second shot at Muhammad Jameel hitting him on the upper part of his chest. Jameel fell down on the ground. At this time, Waris and Mubashir Baig accused were raising Lalkaras that whosoever would come near would be done to death.
Muhammad Yousaf and Muhammad Ashraf P.Ws. Who lived in the same village reached there and witnessed the occurrence. Then Mubashir Baig drove away the motorcycle which was already in start position and the other co-accused sat behind him and they fled away towards General Bus Stand, taking along their respective weapons.
17. P.W.9 further stated that the motive behind the occurrence was that his son Muhammad Jameel used to object to the presence of the accused in front of his house and also used to forbid them from teasing the girls and so the accused nursed grudge against him and as such they had attacked him in furtherance of their common intention.
18. P.W.9 also deposed that after the occurrence Muhammad Lateef Qadri reached there and with his help he removed the deceased in injured condition to Civil Hospital, Sialkot who was medically examined and was admitted in the hospital but after some time he succumbed to the injuries.
Around 9-30 a.m. When he was to leave for police station, the police arrived in the hospital and his statement Exh.P.F. Was recorded there and he signed the same in token of its correctness.
19. On 12-12-1994, P.W.9 joined the investigation alongwith Haji Muhammad Yousaf and Muhammad Ashraf, P.Ws. In front of Zeshan Colony, Wazirabad Road, Sialkot where Muhammad Azhar and Waris accused came on Motorcycle No,STE-2013. On their pointing out the police arrested them. On the personal search of Azhar accused the police recovered a pistol P.7 and on unloading the same five live bullets P.7/1-5 were recovered. On the personal search of Muhammad Waris accused the police recovered pistol .30 bore P.8 and three live bullets P.8/1-3 and the aforesaid weapons of offence were taken into possession by the Investigating Officer vide recovery memo. Exh.P.H. And which were attested by him and other P.Ws. (he also made mention of some recovery memo. As Exh.P.H./1 and which appears to be a typing mistake).
20. P.W.10 Muhammad Ashraf deposed on the same lines, on which the complainant had deposed.
He is also a recovery witness of the weapons of offence and he deposed that the pistol Exh.P.7 and the bullets Exh.P.7/1-5 were recovered from Azhar alias Ajja accused and were taken into possession (by the Investigating Officer) vide memo. Exh.P.G. While the pistol Exh.P.8 and the bullets Exh.P.8/1-3 recovered from Waris accused were taken into possession (by the Investigating Officer) vide memo. And he had thumb-marked the said memos. And were sent by Bashir Ahmed and Haji Muhammad Yousaf P.W. He stated that the motorcycle Exh.P.9 had been taken into possession vide memo. Exh.P.M. Which was also attested by him.
21. The learned prosecutor gave up the remaining P.Ws., during the course of trial. He tendered in evidence report of Serologist Exh.P.O. And that of Chemical Examiner Exh.P.Q. And closed the case for the prosecution.
22. In their statements under section 342, Cr.P.C. Both the accused denied all the incriminating circumstances. Azhar accused in his statement under section 342, Cr.P.C. In answer to Question No,4 denied that the pistol .30 bore P.7 and the bullets Exh.P.7/1-5 had been recovered from his possession. About recovery of motorcycle P.9 he took the plea that this motorcycle had been taken away from his house long before 12-12-1994. In answer to Question No,5 as to why this case against him and why the P.Ws. Had deposed against him he replied that the witnesses were interested and inimical towards him. In answer to Question No,6 he stated that he was innocent and had never teased the girls and that it was the deceased who used to tease the girls including his sister and that he and others had many times asked the deceased not to behave in such a way and it was due to the said reason that the complainant and others were against him (i,e, the complainant). In answer to Question No,7 he stated that he will produce evidence in defence and will also appear as his own witness.
23. In his statement under section 342, Cr.P.C. In answer to Question No,4 Waris accused denied that the pistol P.8, bullets P.8/1-3 and the motorcycle P.9 had been recovered from his possession.
In answer to Question No,5 as to why this case against him and why the P.Ws. Had deposed against him, he replied that he was innocent in this case and that in fact Jameel deceased was got murdered by Azhar accused through Mubashir and Musharaf due to the fact that the deceased had illicit relations with the sister of Azhar accused. He further stated that Mubashir accused had good relations with Malik Nadeem, S.-I. Due to which he i,e, Waris accused was involved in this case while Musharaf was let off by the police and only the recovery of motorcycle was attributed to Mubashir and that he had disclosed the whole story before Shaukat Hayat, D.S.P. He, however, stated that he will produce evidence in defence and will also appear as his own witness. However, on 8-5-1997 he made statement to the effect that he does not want to appear as his own witness nor does he want to produce evidence in defence.
24. Muhammad Azhar accused in his defence evidence produced D. W.1 Sabir Hussain who deposed that Muhammad Azhar accused is his son and that they are originally from village Bagga, Tehsil Shakargarh, District Narowal and that he was residing in Sialkot on account of his service in Sialkot City. He deposed that none of his relatives is residing in Sialkot. He also stated that motorcycle bearing No,STE-2013 was purchased by him from Muhammad Ilyas and who had purchased the same from another person i,e, Shehzad Mehmood. He had purchased this motorcycle from Muhammad Ilyas on 14-2-1994 and Muhammad Ilyas had handed over to him the original registration Exh.D.B. Photocopy of identity card Exh. D.C., Transfer Letter Exh. D. D. (which on account of a typing mistake is- described as Exh.D.B. In the statement of D.W.1), and sale receipt Exh.D.E. He stated that the complainant and P. Ws. Were also residing in his Mohallah and the house of the complainant was located at a distance of 2-1/2 furlongs from the place of occurrence. He deposed that Yousaf P.W. Is brother-in-law of Bashir Ahmed complainant and house of Muhammad Yousaf is located at a distance of about three furlongs from the place of occurrence and that the house of Muhammad Ashraf P.W. Is also more than three furlongs from the place of occurrence. He stated that at the time of occurrence he and his son namely Muhammad Azhar were available in their house. He heard a noise and then came in the street where many persons had assembled and on his enquiry they told him that Jameel son of the complainant had been murdered near the school by unknown persons, while at the time of occurrence his son was present in the house. After about 5/6 days of the occurrence, the police officials came to their house and illegally took away the motorcycle bearing No,STE-2013 and that 2/3 days prior to that, his son had been taken away by the police from his house.
25. On 10-6-1997, Muhammad Azhar, accused closed his evidence and further stated that he does not want to appear as his own witness under section 340(2), Cr.P.C.
26. Learned counsel for the appellant Muhammad Azhar alias Ajja has argued that initially only Azhar accused had been nominated in the F.I.R. With mala fide reasons and it was subsequently that the complainant made the supplementary statement in connivance with the police in order to involve Muhammad Waris accused as well; that supplementary statement has no legal importance nor the same can be taken into consideration even if it had been recorded on the same day; that the crime empties were not sent to the Forensic Science Laboratory nor any such crime empties had been recovered from the spot and as such the recovery of weapons of offence which was allegedly effected on 12-12-1994 becomes inconsequential; that there is no mention of the motorcycle in the original F.I.R. It had been introduced subsequently, after consultation with the Investigating Officer; that the houses of Bashir Ahmed and Muhammad Ashraf, P.W. Were situated at a considerable distance from the place of occurrence and it is not believable that they had reached at the spot at the time of occurrence; that it is unconceivable that P.W.9 was watching the culprits causing injuries to his son and so standing quietly without any attempt on his part to interfere and that his conduct in this respect was clearly unnatural which makes his presence at the place of occurrence doubtful; that the motive in this case is very weak and does not inspire confidence; that actually it was the deceased who used to tease the girls although he had been forbidden to do so by Azhar accused and others and the girls who he used to tease also included the sister of Azhar accused; that Azhar accused was a young boy of tender age at the time of occurrence and that the prosecution story was replete with inconsistencies and contradictions and does not inspire confidence and as such the prosecution had failed to establish the charge against Azhar accused beyond a reasonable doubt and he is thus entitled to be acquitted.
27. It was argued on behalf of Waris accused/appellant that he was not named in the original F.I.R.
Although it was stated in the F.I.R. That the complainant could identify the unknown culprits, if they appeared before him; that if Waris accused was previously known to the complainant how is it that he was described as unknown in the F.I.R.; that the complainant did not mention even the features of the three unknown culprits or even the colour of their clothes; that it was quite evident that Waris.Accused had been implicated in this case as a result of an afterthought and after consultation with the Investigating Officer; that Waris accused had no concern with this occurrence nor he was concerned with any prior incident involving the teasing of girls and that he was falsely involved in this case by the Investigating Officer in order to shift the burden from Mubashir accused; that the motive story in so far as it concerns Waris is totally unfounded; that the recovery of weapon of offence was totally fake and that there was no report of Forensic Science Laboratory on record and that the prosecution had failed to establish beyond reasonable doubt that Waris accused was any way involved in this occurrence; that there being no convincing evidence against him, Waris accused was entitled to be acquitted.
28. From the other side, the learned counsel for the complainant and the learned counsel for the State have argued that Azhar accused had a define motive in this case as he had been forbidden by the deceased from standing in the street and from teasing the girls. They have argued that the actual date of birth of Azhar accused was 29-9-1976 and he was eighteen years, one month and 26 days of age on the day of occurrence while the deceased was 22 years of age. They have argued that if the tender age of Azhar is to be taken into consideration, then it would be proper to consider that the deceased was also a young person of only 22 years of age. The learned counsel for the complainant has argued that Waris accused/appellant had not been mentioned specifically in the F.I.R. Because at that time the complainant was under shock as he was the father of the deceased and the deceased was his only educated son and who was working in a bank. It was argued that the motive existed against all .The accused as they were friends inter se and as all of them used to tease the girls and as the deceased had objected to their presence in his street. It has been argued that the weapons of offence were recovered from both the appellants at the time of their arrest and that there are no mitigating circumstances in this case and as such the conviction recorded by the learned trial Court and the sentences awarded to both the accused in this case be upheld.
29. We have carefully considered the arguments from both sides. So far as Muhammad Azhar accused is concerned, he was clearly nominated in the F.I.R. And he was alleged to have fired two shots with pistol .30 bore at the deceased. In this respect P.W.9 and P.W.10 who were eyewitnesses of the occurrence are consistent in their statements P.W.9 had also made a mention of motive which was sufficient to prompt Azhar accused/appellant to launch a murderous attack on the deceased. The medical evidence fully corroborates the eye-witness account in that respect, in so far as Azhar accused is concerned. It is not the case of Azhar accused that P.W.9 and P.W.10 who are eye-witnesses of the occurrence had any enmity against him. The fact that P.W.9, the complainant, is the father of the deceased is not sufficient to discard his testimony. The young age of Muhammad Azhar, accused/appellant is no ground to provide a mitigating circumstance in this case as the deceased was also a young person, rather was the only educated son of the complainant. As such, the charge, under section 302, P.P.C. Was clearly established against Muhammad Azhar, accused/appellant.
30. So far as Waris accused is concerned, he was not specifically named as one of the culprits in the original F.I.R. Supplementary statement of the complainant even if recorded on the same day on which the occurrence had taken place has no legal importance. The complainant stated in the F.I.R. Exh.P.F. That there were three unknown persons with Azhar alias Ajja accused/appellant and he could identify them if they appeared before him. In case Waris accused/appellant was known to the complainant at the time of occurrence and if he could mention his name in the supplementary statement, he could have mentioned his name in the original F.I.R. As well. The argument that as the complainant was under shock he did not mention the name of Waris accused/appellant specifically in the F.I.R., does not inspire confidence. If he could name specifically Azhar accused/appellant, he could also name Waris accused if he had seen or identified him.
31. So far as the injury attributed' to Waris, accused/appellant is concerned, according to the prosecution story he had fired with the pistol at the deceased hitting him on his left buttock, as per statement of P.W.9 and P.W.10 (the said injury is Injury No,3 in. The post-mortem report which is described as ante-mortem while Injury No,.4 is the exit wound).
' P.W.2 Dr. Syed Sajjad Ali who had conducted the post-mortem examination on the dead body of the deceased, stated in the course of cross-examination that it cannot be determined that all the injuries were caused by one and the same weapon and the possibility cannot be ruled out, keeping in view the size of the wound, that these injuries were the result of the same weapon. In view of this statement of the Medical Officer it cannot be ruled out that the injury attributed to Waris accused/appellant had also been caused by Azhar accused/appellant, who is alleged to have caused the remaining injuries to the deceased. In view of these facts it can be said that the prosecution has not been able to establish the charge under section 302, P.P.C. Against Waris accused/ appellant beyond reasonable doubt.
32. So far as the sentence awarded to the accused/appellants is concerned, the learned trial Judge had sentenced them to death as Qisas under section 302, P.P.C. And had also directed them to pay Rs,50,000 each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Although Azhar accused, in the light of the evidence on record, is liable to be convicted and sentenced under section 302(b), P.P.C., there does not lawful justification for awarding him sentence of death as Qisas under section 302(a), P.P.C. As in this case proof of Qatl-e-Amd liable to Qisas as required under section 304, P.P.C. Is not available. As such, the sentence awarded to Muhammad Azhar accused/appellant by the learned trial Court is liable to be modified from section 302(a) to section 302(b), P.P.C.
33. In consequence of what has been stated above the criminal appeal filed by Muhammad Azhar alias Ajja accused/appellant (Criminal Appeal No,327 of 1997) is dismissed and his conviction under section 302, P.P.C. Is upheld with the modification that he shall be considered to have been sentenced to death under section 302(b), P.P.C. He will also pay an amount of Rs,50,000 to the legal heirs of the deceased as compensation. In case of default in payment of compensation, he will have to undergo R.I. For six months.
34. Criminal appeal filed by Muhammad Waris, accused/appellant (Criminal Appeal No,328 of 1997) is allowed, the conviction recorded by the learned trial Court and the sentence of death passed against him is set aside and he is acquitted of the charge in this case. If not required in connection with any other case, he be set at liberty forthwith. As there is no justification for the enhancement of the amount of compensation to be paid by the convict to the legal heirs of the deceased, the revision petition filed by Bashir Ahmed complainant (Criminal Revision No,304 of 1997) is dismissed.
35. The sentence of death awarded to Muhammad Azhar alias Ajja accused/appellant by the learned trial Court is confirmed. Murder Reference No,119 of 1997 in that respect (to the extent of Muhammad Azhar, appellant) is answered in affirmative. The sentence of death awarded to Muhammad Waris, accused/appellant by the learned trial Court is not confirmed. Murder Reference No,119 of 1997 to the extent of Muhammad Waris accused/appellant is answered in negative.