1. ' BASHIR A. MUJAHID, J.--- Muhammad Bashir and Umar Daraz sons of Abdullah have challenged judgment, dated 12-5-1996 passed by the learned Sessions Judge, Sargodha whereby they were convicted under section 302(b)/34, P.P.C. And Muhammad Bashir was sentenced to death while Umar Daraz was sentenced to life imprisonment, for commission of murder of Sultan Mahmood.
2. They were further directed to pay Rs,50,000 each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to further undergo 6 months' S.I. Each.
3. They were also convicted under section 337-F(iii)/34, P.P.C. For causing injuries to Muhammad Afzal P.W.13, Nasar Hayat P.W.10 and Khurshid Bibi P.W.12 and were sentenced to 2 years' R.1. Each on each count and to pay Rs,5,000 as Daman on each count to the injured P. Ws. Through the same judgment Aslam, Muhammad Amir and Muhammad were acquitted of the charge.
4. ' Brief facts of the prosecution case contained in the F.I.R. No,136 of 1993, Exh.P.K. Got recorded by Muhammad Khan P.W.9 at Police Station Bhera, District Sargodha on 2-10-1993 at 1 p.m. Regarding the occurrence which took place at 10 a.m. On the same day with Amir Abdullah, A.S.-I. P.W.18 are that he alongwith Sultan Mahmood (deceased) Muhammad Afzal his real brother, Nasar Hayat his nephew, Khurshid Bibi his niece and Muhammad Riaz son of Misri were going towards their Dera.
5. Sultan Mahmood, Muhammad Afzal, Nasar Hayat and Khurshid Bibi were ahead about one Killa when they reached near the Dera of Abdullah Bhalwana at about 10 a.m. Muhammad Bashir and Umar Daraz accused armed with guns, Muhammad Aslam empty-handed sons of Abdullah raised Lalkara from their Dera that they would teach them a lesson. Umar Daraz fired with his gun at Sultan Mahmood hitting on his left thigh. Muhammad Bashir also fired at Sultan Mahmood hitting on his left side of chest who fell down on the ground and succumbed to the injuries. Thereafter, Umar Daraz fired at Muhammad Afzal hitting on his right fore-arm right side of chest and right thigh. Muhammad Bashir caused second fire hitting Muhammad Afzal at his back. Muhammad Bashir again fired hitting left shoulder of Nasar Hayat and Mst. Khurshid Bibi. Muhammad Aslam kept on raising Lalkara not to spare them. Many persons were attracted to the spot on hearing of firing and the accused fled away.
6. ' The motive alleged for the occurrence was a dispute between the complainant party and Muhammad Amir and Muhammad sons of Alam regarding turn of Chah Pattay Wala. The Civil Court had decided the case in favour of the complainant party and to take revenge the accused committed this offence. It was also alleged that Amir and Muhammad abetted the offence.
7. ' Amir Abdullah A.S.-I. P.W.18 after registration of case arrived at the place of occurrence and took the dead body of Sultan Mahmood into possession and prepared the injury statement Exh.P.R. And inquest report Exh.P.S. And entrusted the same to Muhammad Afzal F.C. For post-mortem examination. He collected the blood-stained earth from the place of occurrence vide memo.
8. Exh.P.M. He also took into possession 4 empties cartridges P.3/1-4 from where Muhammad Bashir and Umar Daraz accused had fired at the deceased and the injured P.Ws. Vide memo. Exh.P.N. On the following day i,e, 3-10-1993 he arrived at the Civil Hospital Bhalwal and recorded the statements of the injured witnesses under section 161, Cr.P.C. After obtaining the opinion from the Medical Officer whether the injured were fit to make the statement. He also received M.L.Rs, of injured P.Ws.
9. On the same day Muhammad Afzal, Constable P.W.4 produced the last-worn clothes of the deceased Sultan Mahmood after post-mortem examination which were taken into possession by him vide memo. Exh.P.A. On 4-10-1993 he got prepared site plan of the place of occurrence through Muhammad Nawaz, Patwari P.W.5. Thereafter, the investigation was taken over by Muhammad Saeed Khan, Inspector/S.H.O. P.W.17. Before him on 16-10-1993, Muhammad Ashraf P.W. Produced blood-stained clothes of Muhammad Afzal, Nasar Hayat and Khurshid Bibi which were taken into possession vide memo. Exh.P.Q. On 18-10-1993 he arrested accused Muhammad Bashir and Umar Daraz and on 22-10-1993 Muhammad Bashir accused while in police custody led to the recovery of .12 bore D.B. Gun P.4 which was taken into possession vide memo. Exh.P.O. On the same day Umar Daraz accused while in police custody led to the recovery of .12 bore gun P.5 which was taken into possession vide memo. Exh.P.B. However, accused Muhammad Aslam, Muhammad Amir and Muhammad were declared innocent during the investigation and he after completion of investigation submitted the challan by placing those three accused in Column No,2.
10. ' The trial Court framed the charge against the accused. They denied the charge and claimed trial.
11. ' During the trial prosecution examined as many as 18 witnesses to prove the guilt of the accused.
12. ' Medical evidence was furnished by Dr. Muhammad All P.W.6 who on 2-10-1993 at 12-20 p.m.
13. Medically examined Muhammad Afzal P.W.13 and found the following injuries on his person:--
(1) A fire-arm circular lacerated wound half entrance measuring 1 x 1 c.m. With inverted margins on back and upper part right arm. No blackening or tattooing was present. Blood was coming out of the wound.
(2) Fire-arm circular lacerated wound of exit measuring 1 x 1 c.m. With everted margins on front and upper part of right arm. No blackening or tattooing was present. Blood was oozing from the wound.
14. Probe pass from Injury No,1 to Injury No,2.
(3) A fire-arm circular lacerated wound of entrance 1 x 1 c.m. With inverted margins on outer aspect and middle of right side of chest. No blackening or tattooing was present. Blood was oozing was out of the wound.
(4) A fire-arm circular lacerated wound of exit 1 x 1 c.m. With everted margins on front and middle of right chest. No blackening or tattooing was present. Blood was oozing out of the wound. Probe was passed from Injury No,3 to Injury No,4.
(5) A fire-arm lacerated circular wound of entrance 1 x 1 c.m. With inverted margins on outer and middle aspect of left side of chest. No blackening or tattooing was present. Blood was oozing out of the wound.
(6) A fire-arm circular lacerated wound of exit 1 x 1 c.m. Margins were everted and on back and middle of left side of chest. No blackening or tattooing was present. Probe was passed Injury No,5 to Injury No,6.
(7) A lacerated circular wound of entrance 1 x 1 c.m. With inverted margins going into the outer and upper part of right thigh.
(8) A fire-arm circular lacerated wound of exit 1 x 1 c.m. With everted margins on front and upper part of right thigh. On the same day the same doctor medically examined Khurshid Bibi P.W. And found the following injuries on her person:--
(1) A fire-arm wound of entry circular in shape with inverted margins measuring 1 x 1, c.m. On front and upper and middle part of left chest 3 c.m. Above clavical, alongwith swelling 5 x 5 c.m. All around the wound. No tattooing or blackening was present. Blood was oozing out of the wound.
(2) A swelling 10 x 10 c.m. On back and upper part of left side of chest.
15. ' On the same day he also medically examined Nasar Hayat and found the following injury on his person:--
(1) A fire-arm lacerated circular wound of entrance 1 x 1 c.m. With inverted margins on front and upper part of left side of chest alongwith swelling measuring 12 x 12 c.m. All around. No blackening or tattooing was present. The injury was K.U.O. Was caused by fire-arm within a duration of four hours. Exh.P.F. Is the correct carbon copy of the M.L.R. And Exh.P.F./1 is diagram of injury on the back of Exh.P.F. Prepared and signed by him.
16. ' Dr. Ehsan Ellahi P.W.7 on 3-10-1993 at 7-30 a.m. Conducted post-mortem on the dead body of Sultan Mahmood and found the following:--
(1) A fire-arm wound of entrance 3/4 x 3/4 c.m. Inverted edges going deep into the chest cavity on front, outer and left side of chest 3 c.m. Below and outer to left nipple.
(2) A fire-arm wound of entrance 3/4 x 3/4 c.m. Inverted edges on outer and front of upper one- third part of left thigh. In his opinion the death in this case was caused due to shock and hemorrhage under Injury No,1 and stoppage of heart beating.
17. ' The ocular account was furnished by Muhammad Khan P.W.9 who was complainant of the case.
18. He narrated the prosecution story as mentioned in the F.I.R. Exh.P.K. Nasar Hayat was injured in the same occurrence and was examined as P.W.10 who also supported the _ complainant and narrated the incident as an eye-witness of the occurrence. Khurshid Bibi was examined as P.W.12 and Muhammad Afzal as P.W.13. They were also injured in the same occurrence. They supported the complainant and narrated the story as alleged by the complainant in F.I.R. Bashir Ahmad P.W.15 had attested the recovery memo. Exhs.P.M. And P.N. Alongwith Amir Abdullah Investigating Officer P.W.18, whereby blood-stained earth and 4 empties were taken into possession from the place of occurrence. Muhammad Nawaz P.W.16 had attested the recovery memo. Exhs.P.P. And P.O. Whereby gun P.4 and P.5 were got recovered by the accused Umar Daraz and ' Muhammad Bashir alongwith Muhammad Saeed Khan, Inspector P.W.17. Muhammad Hanif, Muharrar H.C. Was examined as P.W.1 who kept the sealed parcel in his possession in the police station's Malkhana and handed over to Muhammad Yaqub, Constable who received two sealed parcels on 4-10-1993 from Amir Abdullah P.W.18 regarding the blood-stained earth and empty cartridges and kept them in Malkhana and handed over the same' to Muhammad Yaqub P.W.2 on 10-10-1993 for onward transmission to concerned quarters. The remaining witnesses are of formal in nature and need not be discussed. The prosecution evidence was closed after tendering in evidence report of Chemical Examiner Exh.P.U. And that of Serologist Exh.P.V. And report of Forensic Science Laboratory as Exh.P.W.
19. ' Statement of the accused/appellants under section 342, Cr.P.C. Were recorded towards the end of the trial. They denied the allegations and claimed false involvement. Muhammad Bashir appellant to a question as to why the case against him, he deposed as under:-- "In fact the deceased party was aggressor. They twisted real fact of the case in connivance with the police and I was challaned under political pressure."
20. ' To the same question Umar Daraz accused/appellant took the Same plea as was taken by the accused' Muhammad Bashir.
21. ' The trial culminated into conviction of the appellants as mentioned above. They have challenged their conviction and sentence through Criminal Appeal No,412 of 1996 while the complainant Muhammad Khan has filed Criminal Appeal No,550 of 1996 challenging the acquittal of the co- accused. The trial Court has sent up Murder Reference No,194 of 1996 for confirmation of death sentence of Muhammad Bashir accused. All the matters are outcome of one and the same judgment, therefore, are being decided by this judgment.
22. ' Learned counsel for the appellants has argued that the motive alleged by the complainant has not been proved rather it has been falsified. No document regarding the decision of Civil Court has been brought on record. The F.I.R. Was recorded with inordinate delay after consultation and deliberation; that the occurrence had not taken place in the manner as alleged by the prosecution; that the complainant party was the aggressor. Muhammad Bashir appellant has acted in his self- defence. The prosecution witnesses are. Admittedly closely related inter se and their testimony has not been corroborated from any other independent source. The medico-legal certificate of the injured P.Ws. Are fake and false got prepared from other hospital through Dr. Muhammad Ali P.W.6 who was relative and from brotherhood of the complainant party; that the positive report of Forensic Science Laboratory Exh.P.W. Has been procured in illegal manner as the crime-empties were sent later on after recovery of weapons of offence. The case against the appellants is doubtful and defence plea is more plausible and reasonable and they are entitled for acquittal.
23. ' Conversely the appeal has been opposed by the learned counsel for the complainant assisted by the learned counsel for the State. They have supported the impugned judgment, and has also prayed for conviction of the acquitted co-accused.
24. ' We have heard the contentions raised at the Bar and also perused the record minutely.
25. ' The motive alleged by the complainant P.W.9 was that Civil Court had decided the dispute between the parties in their favour in respect of Wara but he admitted in cross-examination that there was no decision from any Civil Court but he volunteered that the dispute was decided by one Naib-Tehsildar orally and no document was prepared. Therefore, it is correct that the motive alleged by the complainant was A not proved against the accused/appellants. Although by now it is settled law that absence, or weakness of motive is immaterial for recording the conviction or awarding lesser penalty but in the instant case defence plea B was that there was dispute over the digging of cement pipe between Muhammad Bashir and Sultan Mahmood deceased prior to the instant occurrence and Sultan Mahmood had extended threats to the accused for dire consequence. Therefore, we agree with the learned counsel for the appellants that motive in the instant case was material but was not proved by the prosecution.
26. ' As far as the ocular account is concerned the prosecution story has been corroborated by three injured witnesses namely Nasar Hayat P.W.10, Khurshid Bibi P.W.12 and Muhammad Afzal P.W.13.
27. Their presence at the spot is established and has also not been controverted by the defence. Mere their medical examination through a doctor who belongs to the brotherhood of the complainant is no ground to discard their testimony as on behalf of the accused no step was taken for their re- examination to falsify their M.L.Rs, The occurrence has been admitted by the accused/appellants.
28. The plea of Muhammad Bashir appellant that complainant party was aggressor and he fired at them in self-defence has not been substantiated by any evidence. It was a daylight occurrence.
29. The F.I.R. Was recorded promptly at 1 p.m. At the police station which was at a distance of 12 miles from the place of occurrence.
30. ' The arguments of the learned counsel that the report of Forensic ' Science Laboratory was false and procured by the Investigating Officer to help the complainant has no force, as there is no allegation that the sealed parcels were tampered with by any of the P.Ws. Sealed parcels containing empties were received at Forensic Science Laboratory prior to the dispatch of weapons of offence and positive report shows that both the accused participated in the occurrence and used their guns. It was not found during the investigation that the deceased or the P.Ws. Arrived at the spot duly armed. Therefore, the plea of accused that he acted in self- defence is not plausible. The prosecution case has been proved by ocular account narrated by the complainant and the injured P.Ws. Their relationship inter se is no ground to discard their testimony as there is no previous serious enmity between the parties. The ocular account has been further corroborated by the medical evidence as well as recovery of weapons of offence, therefore, we do not find any reason to interfere in the conviction recorded against the appellants.
31. ' However, as far as the sentence is concerned, admittedly both the accused fired at the deceased and the injured P.Ws. From inside their Dera from behind the wall and dimension and size of wound attributed to the appellants having been caused at the deceased is the same and is result of pellets. Likewise the injuries on the person of injured P.Ws. Have been caused from long distance as no blackening or tattooing was found. The occurrence took place in the field of the accused near their Dera. When the motive has been disbelieved then it is not clear what happened at the spot and transpired between the parties immediately prior to the occurrence. The victims were not going by the regular path. Therefore, by placing the prosecution version and the defence plea in juxta-position, we feel that reasonable possibility is that the defence put up by the accused might be true to some extent. Death penalty awarded to Muhammad Bashir is not proper and the same is reduced to life imprisonment which will meet the ends of justice. The remaining sentences are maintained.
32. ' However, all the sentences shall run concurrently. The benefit of section 382-B, Cr.P.C. Will be available to them. The conviction of Muhammad Bashir and Umar Daraz appellants is maintained with the above modification and this appeal is dismissed. Death sentence is not confirmed.
33. ' Murder Reference answered in the negative.
34. ' Criminal Appeal No,550 of 1996 is also dismissed having no force.