1. ' MUHAMMAD NAWAZ ABBASI J.---The appellants namely Nisar Ahmad son of Muhammad Sharif and Tahir Mehmood son of Taj Muhammad along with Fazal Dad son of Aksar Khan and Muhammad Idrees son of Muhammad Munawar were tried for the charge under sections 302/324/34, P.P.C. For committing murder of Muhammad Banaras and causing injuries to the witnesses by the learned Additional Sessions Judge at Chakwal. The learned trial Judge vide judgment dated 18-7-1998 having found the appellants guilty of the charge convicted and sentenced them as under:- Under section 302, P.P.C.:-- ' Nisar Ahmad and Tahir Mehmood appellants were sentenced to death as Tazir with the direction to pay fine of Rs,50,000 to be paid as compensation under section 544-A, Cr.P.C. To the legal heirs of Muhammad Banaras and in case of default in the payment of fine to undergo rigorous imprisonment for three years.
2. Under sections 324/337-A(iii), P.P.C:-- ' Fazal Dad appellant was sentenced under section 324, P.P.C. To rigorous imprisonment for eight years with a fine of Rs,5,000 and in case of default in the payment of fine to undergo further rigorous imprisonment for two years. He was also sentenced under, section 337-A(iii), P.P.C. To rigorous imprisonment for eight years as Tazir and was held liable to pay 10% of Diyat as Ursh to be calculated by the Collector.
3. Under section 337-A(I), P.P.C:- ' Muhammad Idrees appellant was sentenced to Daman with rigorous imprisonment for one year as Tazir. The appellants have challenged their. Conviction and sentence through the separate Criminal Appeals No,185 and 186 of 1998 and the learned additional Sessions Judge has sent the record of the case to this Court for confirmation of sentence of death awarded to the appellants, whereas Tariq Mehmood complainant through Criminal Revision No,66 of 1998 has sought enhancement of compensation awarded to the appellants under section 544-A, Cr.P.C. To he paid to the legal heirs of Muhammad Banaras deceased.
4. ' The facts briefly in the background as contained in the private complaint filed by Tariq Mehmood are that he and his brother namely Muhammad Banaras on 15-8-1995 at 6-00 P.M. Went in the land of their uncle Muhammad Bakhsh to feed their partridges and while they were present in the land, the accused namely Nisar Ahmad, Tahir Mehmood and Fazal Dad armed with .30 bore pistols and Muhammad Idrees with `Single' reached there and in furtherance of their common intention raised Lalkara that Muhammad Banaras would be taught lesson for carrying illicit liaison with Mst.Shahida Munawar sister of Nisar Ahmad accused and simultaneously Nisar Ahmad fired a shot, which hit Muhammad Banaras deceased on his back. Thereafter Tahir Mehmood fired a shot, which hit Muhammad Banaras deceased on left side of chest, whereas shot fired by Fazal Dad hit on the chin of the Tariq Mehmood complainant. Ashiq Hussain son of Farman Ali alongwith his sister Mst. Rehmat Khatoon having attracted to the occurrence tried to save the complainant and his brother from the clutches of the accused party, when Muhammad Idrees inflicted one blow each to Ashiq Hussain and Mst. Rehmat Khatoon with Sangle and thereafter accused gave Butt blows to Ashiq Hussain and Mst. Rehmat Khatoon. Mazhar Hussain son of Bostan, Mushtaq Hussain son of Suba Khan and Malik Khan son of Noor Khan having attracted to the spot witnessed the occurrence and took the injured persons to Civil Hospital at Chakwal but Muhammad Banaras succumbed to the injures before reaching the hospital. The motive behind the occurrence as narrated in the private complaint was that the accused persons had doubted illicit intimacy of Muhammad Banaras deceased with Mst. Shahida Munawar, sister-in-law of Nisar Ahmad accused.
5. ' Muhammad Yousaf, Assistant Sub-Inspector (C.W.2) having recorded the statement (Exh.P.A) of .Tariq Mehmood at District Headquarter Hospital, Chakwal sent the same through Muhammad Asif Constable for registration of the case and himself proceeded to the place of occurrence. The Sub- Inspector after preparing the injury statement and the inquest report of Muhammad Banaras deceased despatched the dead body of Muhammad Banaras to the mortuary for post-mortem examination. He secured blood-stained earth from the place of occurrence and also took into possession three crime empties from the place of occurrence. Muhammad Idrees accused on 15- 9-1995 while under arrest led to the recovery of `Sangle' and Tahir Mehmood accused led to the recovery of pistol .30 bore and five live cartridges. Ch. Manzoor Sub-Inspector/ Station House Officer having taken over the investigation took into possession the last worn-clothes of the deceased and a sealed phial containing led bullet with copy of the post-mortem respect produced before him by a Constable. The Sub-Inspector got prepared site plans and having completed the investigation submitted the Challan.
6. ' Dr. Mukhtar Ahmad, Medical Officer B.H.0 Sohala Devalian, District Chakwal (P.W.7) conducted the post-mortem examination on the dead body of Muhammad Banaras on 16-8-1995 and found the following injuries on his person.
(i) "A fire-arm wound 1/2 x c.m. Circular on left side of upper chest, 8 c.m. Left to the left nipple and 12 c.m. Below left axilla with inverted margins and directing towards backwards, .Slightly downwards and to the right side. It was entry wound. No burning or blackening of the skin was seen. Corresponding hole was present on Qameez, which was marked and signed by me. Ii. A fire- arm wound 1'/2 c.m. x 1 c.m. With abrasion oval shaped with inverted margins on back of middle of right side of chest, 9 c.m. Right to the midline and 8 c.m. Below right scapula. It was directing forwards upwards and to the left side. No burning or blackening of the skin and clothes was present. It was also entry wound.
7. ' Dr. Zahid-ul-Hasan, Medical Officer B.H.0 Murid, District Chakwal (P.W.8) medically examined Muhammad Tariq son of Ali Haider and Ashiq Hussain son of Farman Ali on 15-8-1995 and found the following injuries on their persons:- ' Muhammad Tariq:-- "He observed that there was a firearm wound 1.5 c.m. x 1 c.m. x inverted margin (entry wound) on left side of chin 2 c.m. Below left angle of mouth going inward slightly upwards and to the right.
8. There was hole of mucosal side of cheek corresponding teeth on the same side were absent and there cavities and gum was licerated and contained fresh blood. Under surface of the tongue was injured lower jaw on the right side was injured, gum was injured, teeth on the lower jaw at this side were absent. There was swelling 5 c.m. x 4 c.m. On right mandibular area. The Shirt, Shalwar and Bunyan contained stains of blood."
9. ' Ashiq Hussain:--
(i) An abrasion 1 1/2 c.m. x c.m. With swelling 5 c.m. x 3 c.m. On back of outer side of right elbow.
(ii) An abrasion 1 c.m. x 1/2 c.m. On back of base of the right thumb.
(iii) Reddish contusion mark 12 c.n'. x 2 c.m. On back of left upper chest.
10. ' The prosecution in addition to the Investigating Officers, Tariq Mehmood the first informant and Doctors also produced the following witnesses in support of the charge:- ' P.W.2 Ashiq Hussain on hearing hue and cry alongwith his sister rushed towards place of occurrence in the land of Muhammad Balchsh and saw that Muhammad Banaras who along with Tariq Mehmood was feeding the partridges was being attacked by Nisar Ahmad, Tahir Mehmood and Fazal Dad armed with .30 bore pistols and Idrees armed with `Sangle'. Nisar Ahmad and Tahir Mehmood fired one shot each at Muhammad Banaras hitting on his back and left side of chest respectively whereas a shot fired by Fazal Dad hit Tariq Mehmood on his chin. Ashiq Hussain and his sister namely Mst. Rehmat when tried to save the complainant from the clutches of the accused, they were caused blows on right upper arm and head 'respectively by Muhammad Idrees with Sangle, whereas the accused armed with pistols caused the blows with the butt of pistols. The witnesses and Muhammad Banaras were being taken to Hospital, when Muhammad Banaras succumbed to the injures whefeas Tariq Mehmood, Ashiq Hussain and Mst. Rehmat Jan were medically examined at District Headquarter Hospital at Chakwal. The Station House Officer in his presence on 16-8-1995 collected blood-stained earth and three empties Exh.P.1 to Exh.P.3 vide memos. Exh.P.0 and Exh.P.D from the spot. Ashiq Hussain on 15-9-1995 witnessed the recovery of Sangle Exh.P.4 from Muhammad Idrees and pistol .30 bore Exh.P.5 with five live cartridges Exh.P.6/1- 5 from Tariq Mehmood, which were taken into possession vide memos. Exh.P.E and Exh.P.F respectively and also identified the dead body of Muhaminaci Banaras deceased in mortuary at Chakwal on 15-8-1995 before post-mortem examination.
11. ' P.W.4 Ammunal Masih Constable was given a sealed parcel by Faiz Ahmad Moharrar, who delivered the same intact in the concerned Office.
12. ' P.W.5 Muhammad Aslam Revenue Patwari inspected the spot on 7-11-1995 on the direction of Investigating Officer and on the pointation of P.Ws. Prepared site plans Exh.P.G, Exh.P.H/1 and Exh.P.H/2 of the place of occurrence.
13. ' P.W.6 Ejaz `Ahmad, Constable was handed over a sealed parcel by Faiz Ahmad Moharrar, who delivered the same intact in the concerned Office.
14. ' P.W.9 Faiz Ahmad on the receipt of compliant Exh.P.A recorded the formal F.I.R. Exh.P.A/1 and on 16- 8-1995 he was given a sealed parcel containing blood-stained earth alongwith three empty cartridges Exh.P.1 to Exh.P.3 by Manzoor Ahmad Sub-Inspector and on 15-9-1995 he was handed over another sealed parcel containing a pistol by the Sub-Inspector for keeping the same in safe custody. On 18-9-1995 he handed over the parcel contained blood-stained earth and empty cartridges Exh.P.1 to Exh.P.3 to Manual Masih for the delivery of same in the office of Chemical Examiner and Forensic Science Laboratory at Lahore and on 11-11-1995 he sent pistol P.5 to the Office of Forensic Science Laboratory at Lahore through Ejaz Ahmad Constable.
15. ' P.W.12 Muhammad Aslam LHC escorted the dead body of Muhammad Banaras deceased to the mortuary for post-mortem examination and delivered the last worn-clothes of the deceased Shalwar Exh.P.7, Shirt bloodstained Exh.P.8, Parna Exh.P.9, a sealed phial Exh.P.10 containing led bullet Exh.P.10/1-2, copy of the post-mortem report with inquest report to the Station House Officer being Investigating Officer of the case, who took the same into possession vide recovery memo. Exh.P.L.
16. Under the instructions of Investigating Officer, he got medically examined Tariq Mehmood, Ashiq Hussain and Mst. Rehmat Khatoon and delivered their medico-legal reports to the Investigating Officer on 16-8-1995.
17. ' C.W.1 Sohbat Hussain Sub-Inspector having partly investigated the case, arrested Nisar Ahmad accused and submitted the Challan.
18. ' C.W.2 Muhammad Yousaf Assistant Sub-Inspector on receipt of information about the occurrence reached at District Headquarter Hospital Chakwal with a police party and having recorded the statement Exh.P.A of Tariq Mehmood sent the same to Police Station for the registration of the case.
19. ' C.W.3 Manzoor Ahmad having taken over the investigation on 16-8-1995, secured blood-stained earth and three empties of .30 bore pistol from the spot vide memo. Exh.P.0 and Exh.P.D respectively. He also took into possession last worn-clothes of the deceased Shalwar Exh.P.7, Shirt Exh.P.8, Parna Exh.P.9, sealed bottle Exh.P.10 containing two led bullets Exh.P.10/1-2 produced before him by Muhammad Aslam LHC vide recovery memo. Exh.P.L and prepared site plan Exh.P.M without scale of the place of occurrence. On 6-9-1995 he arrested Tahir Mehmood, Fazal Dad and Muhammad Idrees accused and got recovered `Sangle' vide memo. Exh.P.E from Muhammad Idrees accused, .30 bore pistol Exh.P.5 along with five live bullets Exh. P. 6/1-5 vide memo. Exh. P. F from Tahir Mehmood and also prepared the site plans Exh.P.H and Exh.P.O of the place of recoveries. He got prepared site plans in triplicate Exh . P. H, Exh. P . H/1 and Exh.P.H/2 of the place of occurrence from Muhammad Aslam Patwari and on receipt of report of Chemical Examiner placed the same on record. He on transfer handed over the investigation to Mr. Sohbat Hussain, Sub Inspector/Station House Officer.
20. ' The accused in their statement under. Section 342, Cr.P.C. Having denied the charge pleaded their innocence. Nisar Ahmad accused in reply to Question No,'10 made the following answer:- " I am the only well-educated person in my family rather the whole village Abadi of Mollay and I was a person who could be said to be the headman of my family. Besides that I have particular religious affiliation being a staunch Shia Muslim and I always arrange Majlis in the village due to which I have a number of enemies in my village and as a result of intrigue, I have been victimized and falsely implicated in this case in an occurrence in which, I did not take part. The witnesses have deposed falsely due to relationship with the deceased and enmity against me."
21. ' The learned counsel for the appellants contended that according to the prosecution, one injury on the chest of deceased and one on back was caused by Tahir Mehmood and Nisar Ahmad respectively but no injury on the back of deceased was traceable which would negate the prosecution story and truthfulness of the eye-witnesses. The learned counsel argued that this conflict of medical evidence with ocular account would suggest that occurrence did not take place in the manner as stated by the eye-witnesses and therefore, there was strong possibility of false involvement- of Nisar Ahmad due to the reason given by him in his statement under section 342, Cr.P.C. The learned counsel next argued that even if the prosecution story, as given in the F.I.R. And narrated by the witnesses at the trial, is believed as such only Tahir Mehmood was found to have caused single shot. Therefore, the' conviction and sentence of remaining accused was not sustainable and the case even if was taken in the light of motive given in the F.I.R. Would squarely fall within the ambit of section 302(c), P.P.C. The learned counsel while placing, reliance on case law contended that in such cases, there was consistent practice of awarding sentence for short term and in the present case, the sentence already undergone by Tahir Mehmood, appellant would be enough to meet the ends of justice.
22. ' The learned counsel for the complainant on the other hand has contended that, the motive of developing suspicion of illicit relations of deceased with sister-in-law of Nisar Ahmad would neither need positive proof nor would be a source of provocation of the nature to bring the case within the ambit of section 302(b), P.P.C. For the purpose of punishment. The learned counsel submitted that it being a pre-planned murder would squarely fall within the ambit of section 302(b), P.P.C. The learned counsel while placing reliance on Muhammad Sarwar v. The State (1999 SCM R 2428) contended that the eye-witnesses were not supposed to locate the correct seat of injuries sustained by the deceased in the occurrence and that both the appellants being equally responsible for causing death of Muhammad Banaras deceased none of them was entitled to any leniency in the matter of sentence. The learned State counsel while adopting the arguments of learned counsel for the complainant has supported the conviction and sentence awarded to the appellants.
23. ' We have heard the learned counsel for the parties at length and have gone through the evidence with their assistance. The occurrence the present case having taken place at 6-00 p.m. In the village was witnessed by Ashiq Hussain and Mst. Rehmat Jan, who while making an attempt to save the life of deceased also sustained injures at the hand of the accused. The above-named witnesses while furnishing the ocular account have fully corroborated the prosecution story given in the F.I.R. Whereas. Tariq Mehmood complainant while repeating the said story has categorically stated that the accused due to the grudge against Muhammad Banaras for his developing illicit intimacy with Mst. Shahida Munawar sister-in-law of Nisar Ahmad attacked upon him. The statement of Tariq Mehmood was to the effect that Nisar Ahmad being armed with pistol first fired a shot, which hit Muhammad Banaras and then Tahir Mehmood fired two successive shots which hit the deceased on left side of the chest near armpit. Fazal Dad (acquitted accused) allegedly fired at Tariq Mehmood, whereas Ashiq Hussain and his sister Mst. Ttehmat Jan were caused injuries by Muhammad Idrees with Sangle. The witnesses in the present case are entirely independent and truthful. Tariq Mehmood the complainant undeniably is real brother of Muhammad Banaras deceased but he had no enmity or any grudge in the back-ground to make a false statement and therefore, the mere relationship would not be enough to doubt his testimony or' exclude his evidence from consideration. It is noticeable that Ashiq Hussain and his sister Mst.
24. Rehmat Jan A except to save the life of the deceased and the complainant had no reason to interfere in the occurrence. They were neither inimical to the accused nor had any special interest with the complainant party and were completely disinterested and Ashiq Hussain having made a truthful statement has fully supported the prosecution. The defence has brought nothing on record to suggest that either there was any enmity between the parties or Ashiq Hussain and complainant had any motive for false implication of the accused. The motive behind the occurrence as given by the prosecution was the illicit intimacy of the deceased with sister-in-law of Nisar Ahmad. The accused in their statement under section 342, Cr.P.C. Having denied the correctness of the motive have not stated anything that for what reason they were involved in the case and why the complainant party deposed against them. The occurrence took place on 15-8-1995 at 6-00 p.m. In the broad-daylight in the village, the report of which was lodged at Police Station Dhudial at a distance of 12 Kilometers at 10-45 p.m. On the same day. The deceased and injured were immediately taken to District Headquarter Hospital, Chakwal, and the statement Exh.P.A of the complainant was recorded by Muhammad Yousaf, Assistant Sub-Inspector in the hospital and therefore, the delay of 4/5 hours in lodging the F.I.R. In the given situation was natural. Prior to the occurrence, the relations between the parties were normal and neither the accused had any apparent reason or dispute with the complainant and the deceased nor the complainant side had any motive for false implication of the accused, therefore, there could be no other cause for the occurrence except the motive given by the prosecution that the accused having developed grudge against Muhammad Banaras for his carrying illicit intimacy with Mst. Shahida Munawar attacked upon him. This motive of suspicion in the mind of accused was a reason of occurrence in the back-ground but what immediately prompted the accused for attacking on the deceased on the fateful day was not brought on record. The possibility of taking . Notice some objectionable act on the part of the deceased on that day being not ruled out, the instigation for immediate action being possible, and the accused probably reacted due to the element of `Ghairat' and family honour. In the medical evidence, the Doctor has found one fire-arm injury on the back and one on the armpit of the deceased, whereas in the F.I.R. It was described that both shots hit on front side of the deceased. Tariq Mehmood in his statement at the trial stated that the shot fired by Nisar Ahmad hit the deceased when he was taking turn, thus the witness to this extent definitely has changed his statement but it would itof be. a material improvement to discredit his testimony. The misdescription of the seat of injury in such circumstances was possible, therefore, it would not be a valid ground to disbelieve an independent and natural witnesses, who also sustained injury in the occurrence. The improvement pointed out by the learned counsel would neither be helpful to the defence nor fatal to the prosecution case in the given facts and circumstances of the case. Tariq Mehmood was medically examined on the same day in District Headquarter Hospital, Chakwal and was found to have sustained a fire-arm wound of the size of 1.5 c.m. x 1 c.m. With inverted margins on the left side of chin 2 c.m. Below left angle of mouth. It was an entry wound and was declared grievous. Ashiq Hussain sustained three injuries with blunt weapon. The medical evidence thus would provide corroboration to the ocular account to the extent of role assigned to Fazal Dad and Muhammad Idrees and their participation in the occurrence stood established beyond doubt.
25. Fazal Dad was found guilty of commission of an offence under section 324, P.P.C. For causing fire- arm injury to Tariq Mehmood and was convicted and sentenced accordingly. Similarly Muhammad Idrees for causing injuries to Ashiq Hussain was found guilty of committing an offence under section 337-F(i), P.P.C. And was convicted and sentenced accordingly. We having analysised the evidence in detail have formed considered view that no exception could be taken to the findings of guilt of the appellants arrived at by the learned trial Judge and, therefore, we maintain the conviction awarded to them by the trial Court. While taking into consideration the question of sentence, we find that one shot each was fired by Nisar Ahmad and Tahir Mehmood appellants at the deceased, who having developed illicit intimacy with sister of Nisar Ahmad injured their sentiments and in consequence thereto the appellant having felt disgraced in the village due to the damage caused to their family honour, out of Ghairat took the extreme step of killing Muhammad Banaras, therefore, there was sufficient mitigating circumstance in there, favour for lesser punishment. Consequently, we alter their sentence from death to life imprisonment under section 302(b), P.P.C. And also grant them the benefit of section 382-B, Cr.P.C. While taking into consideration the question of compensation awarded by learned trial Judge under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased, we find that it was inadequate. We, therefore, while giving notice to the appellants through their counsel dispose of Criminal Revision No,66 of 1998 filed by Tariq Mehmood complainant, for enhancement of the compensation as notice case, which was ordered to be heard along with murder reference and enhance the amount of compensation from Rs,50,000 to Rs,100,000 to be paid by each appellant to the legal heirs of the deceased.
26. ' With the above modification in the sentence and compensation, we dismiss the Criminal Appeal No,185 and 186 of 1998 answer Murder Reference No,358 of 1998 in the negative.