1. ' Rashid Masih has challenged judgment, dated 23-5-2000, passed by the learned Additional Sessions Judge, Kasur whereby he was convicted under section 302(b), P.P.C. And was sentenced to imprisonment for life for causing death of Mst. Khurshid Bibi and was ordered to pay an amount of Rs,1,00,000 as compensation to the legal heirs of the deceased. He was further convicted under section 324, P.P.0 for causing murderous 'assault on Mst. Nasreen Bibi P.W. And was sentenced to seven years' R.I. And a fine of Rs,10,000 or in default of payment of fine he had to further undergo S.I.
2. For a period of four months and pay Rs,10,000 as compensation. The amount of fine if recovered was ordered to be paid to Mst. Nasreen injured P.W. Both the sentences were ordered to run concurrently.
3. ' The brief facts of the prosecution case are that Fazal Masih got a criminal case registered vide F.I.R. No, 466 of 1996, dated 1-9-1996 Exh. P.A. With Police Station, Saddar Kasur under sections 302/324, P.P.C. Stating therein that Mst. Khurshid Bibi was unmarried daughter was going alongwith Mst. Surriya Bibi (sister-in-law) and' Mst. Nasreen Bibi towards the field in order to ease themselves.
4. The complainant was also going behind them. There was bulb light in the street, when they reached in front of Havali of Sharif Masih whereas Qutba Masih son of Dara Masih empty handed, Rasheed Masih son of Sharif Masih armed with 12 bore gun, Nazir alias Jera Masih also armed with 12 bore gun and Sharif Masih son of Qutba Masih armed with 12 bore gun were present in their Havali, Qutba Masih raised Lalkara that Mst. Khursheed Bibi be done to death on which Nazir alias Jera Masih, and Sharif Masih alias Phula Masih climed over the wall while Rashad Masih raised Lalkara and fired with his gun hitting on left shoulder of Mst. Khursheed Bibi, Nazir alias Jera Masih fired from his 12 bore gun which hit. At Mst. Khursheed Bibi on left side face of Mst. Khursheed Bibi who fell down after receipt of the injuries, while Sharif Masih also fired which missed its target and did not hit Mst. Khursheed Bibi. He fired second shot hitting Mst. Nasreen Bibi. The accused fled away from the place of occurrence.
5. ' Mst. Khursheed Bibi and Mst. Nasreen Bibi were removed to the Hospital in injured condition but Mst. Khursheed Bibi succumbed to the injuries on the way.
6. ' The motive alleged for the occurrence was that the accused had suspected illicit relation of the deceased with Jera Masih. After registration of the case F.I.R. (Exh. P.A.). Muhammad Shafi Khan, S.I.
7. C.W.8, on 1-9-1996 at 12.30 night undertook the investigation. He arrived at District Headquarter Hospital, Kasur and took dead body of Khursheed Bibi into possession and prepared inquest report through Exh. C.E. And handed over through Irshad and Riaz Constables for post-mortem examination. He moved an application Exh. C.F. Focrecording statement of Mst. Nasreen Bibi who was admitted in hospital and recorded her statement. Thereafter, he arrived at the place of occurrence he recorded the statements under section 161, Cr.P.C. Fazal Masih complainant got his supplementary statement recorded that in fact two shots were fired at the spot. He took blood- stained earth from the spot through Exh. C.G. Riaz, F.C. Produced the last worn clothes of the deceased before him which was taken into possession by the Investigating Officer through Exh. C.C.
8. Thereafter, he was transferred from the Police Station and investigation was entrusted to Faqir Hussain C.W.1 who on 2-12-1996 arrested Rashad Masih appellant who while in police custody lead to the recovery of Riffle 7 MM, which was taken into possession by him through Exh. C.A. He also arrested Nazir alias Jera Masih and Sharif Masih and found them innocent during the investigation.
9. He submitted challan against Rashad Masih alone.
10. ' The complainant being dissatisfied with the investigation conducted by the local police, filed private complaint Exh. P.A./1. Learned Trial Judge after summoning the respondents in the private complaint consolidated the proceedings in the challan case as well as in the complaint case.
11. ' The charge was framed by the trial Court which was denied by the accused and they claimed trial.
12. ' During the trial, the prosecution examined Noor Ahmad, H.C. As P.W.1 who had recorded the formal F.I.R. Exh. P.A. Dr. Rashid Ahmad Bhuller as P.W.2 who had medically examined Mst. Nasreen Bibi P.W.
13. Who found the following injuries on her person:---
1. Lacerated fire-arm wound with inverted margins 3 c.m. x 4 bone deep, dorsal surface of left hand.
2. Lacerated fire-arm wound with inverted edges 7 c.m. x 8 c.m. Bone deep, palmar surface of left hand including wrist joint. Pulse was 90 per minute and blood pressure was 110/70.
14. ' Dr. Mumtaz Ahmad P.W.3 had conducted post-mortetn examination on the dead body of Mst.
15. Khurshid Bibi and found following injuries on her body:---
(1) An oval lacerated wound 1 x 1-1/2 c.m on the left side of chin 2 c.m. Below left angle of mouth.
16. Margins were inverted and it was entry wound.
17. (2). A lacerated' wound 1-1/2 x 1/1-2 c.m. On the left side of face near left angle of mendible 3 c.m.
18. Outer to Injury No,I Margins everted (Exit wound).
(3) A lacerated wound 1-1/2 x 1-1/2 c.m. Margins inverted on the top and middle of left shoulder 3 c.m. Out to neck.
(4) A lacerated wound 9 x 6-1/2 c.m. On the back of left shoulder< in scapular area 5 c.m. Below to top of left shoulder.
19. ' Fazal Masih appeared as P.W.5, he supported the version of the complaint filed by him as Exh. P.A.1.
20. He narrated the story implicating the respondents as accused and also narrated the motive for the alleged occurrence that on asking of the accused, he had not broken the engagement of his daughter Mst. Khursheed Bibi with son of Mehnga Masai. Surriya Bibi wife of Sadiq Masih was examined as:P..W.6. She was also an eye-witness of the occurrence and corroborated the prosecution story. Her statement is in line with the statement of P.W.5, Mehnga Masih son of Ahmad Masih appeared as P.W.7,. He also supported the prosecution story as an eye-witness of the occurrence. He also narrated the motive part as alleged by the complainant.
21. ' Faqir Hussain, S.I. C.W.1 had arrested the accused effected recovery and examined the challan.
22. Umar Hayat, A.S.I, C.W.4 had attested the recovery memo. Exh. C.A. Whereby the accused Rashad Masih had got recovered rifle. Muhammad Shafi Khan, S.I., C.W.8 had partly ,investigated the case.
23. The remaining witnesses are of formal nature and need not be discussed. The statement of the accused appellant was recorded under section 342, Cr.P.C. Who denied the allegation and claimed his innocence and false implication and replied to the question No, 5 have you say anything else?
24. He replied as under:-- ' Question No,5.
25. ' I am innocent. The real facts are that 1 was not present in my Havali at the time of occurrence.
26. There was no arrangement of light in my Havali. It had come in my knowledge that it was Nasar Masih and my son Rashad Masih present at the spot; Nasar Mashi was armed with 7 MM rifle and it went off suddenly at the hands of Nasar Masih, which hit both the deceased and the injured, Later on 7 MM rifle was produced by Nasar Masih before the Investigating Officer at the police station.
27. ' I was nominated in the F.I.R. As empty handed but was never arrested and was declared innocent by the police alongwith my co-accused Nazir Masih. The prosecution had involved all the major male members of the family in the private complaint with mala fide after a long time obtaining legal advise. Prosecution has involved us just to blackmail us with ulterior motive.
28. ' The trial culminated into conviction of the appellant as mentioned above. While his co-accused were acquitted of the charge. The appellant has challenged his conviction and sentence through Criminal Appeal No, 913 of 2000 while Fazal Masih complainant of the case has filed Criminal Revision No, 532 of 2000 for enhancement of the sentence. Both the matters are being outcome of the same judgment, therefore, the same are being decided by this single j udgment.
29. ' Learned counsel for the appellant has argued that it was an unwitnessed night occurrence. Light of electric bulb was not available in the street and the first plea of the appellant was that he was sitting alongwith co-accused Nasar Masih who had his gun and when it was being unloaded, the appellant pulled its triger which went off so it was not intentional murder and this plea was found correct during the investigation and the complainant by changing his motive had filed private complaint for false implication of whole family of the appellant. The case of the appellant falls under section 319, P.P.C. And not under section 302, P.P.C.
30. ' The appellant is young offender and was minor at the time of commission of crime. Therefore, .The conviction recorded by the trial Court be set aside by allowing appeal of the appellant.
31. ' Conversely, the appeal has been opposed by the learned counsel for the State.
32. ' Heard. Record perused.
33. Admittedly, the occurrence took place at 9.30 p.m. And there was no street light at the spot. Many persons of the village joined the investigation and it was ultimately found that the gun was fired by the appellant by mistake. He had no motive/intention or knowledge that the deceased (Mst.
34. Khursheed Bibi and Mst. Nasreen. Bibi (Injured) were passing through the lane infront of the Havali, therefore, it was not pre-planned murder. It was also found that there was only one fire shot. The co-accused were found innocent. It was the case of the complainant that the accused fired over the wall from inside the Haveli. The identification of the accused in dark night was not possible in absence of any source of Tight. The, presence of P. W .5 , P. W .6 and P.W.7 at the spot is doubtful.
35. The defence version that one fire shot of gun hit both the victims has been corroborated by medical evidence. This was plea of appellant from the very first day, the motive has als.O been disbelieved. The co-accused have been acquitted by disbelieving the same prosecution evidence.
36. This is case of two versions. By placing the version of the appellant and of prosecution in juxta- position, the defence plea seems to be more probable and correct. The same. Was the result of investigation. The complainant by changing his motive filed the instant private complaint. The prosecution witnesses are closely related inter se. Although the, complainant has no previous enmity for falsely implicating the appellant but it the same time, the appellant had also no motive for commission of crime. No allegation was levelled by the complainant against the Investigating Officer for his partiality to get investigation transferred.
37. Therefore, after reappraisal of the evidence, I am convinced that the case of the appellant falls under section 319, P.P.C. Instead of 302, P.P.C. The conviction is, therefore, altered, accordingly. The appellant is directed to pay compensation of Rs,2,01,058 which was fixed as minimum by the Federal Government vide notification at the time when alleged occurrence took place. The appellant is also sentenced to term of four years' R.I. However, benefit of see-tion 382-B, Cr.P.C. Will be available to him. The sentence under section 324, P.P.C.Is also reduced to four years' R.I. And fine 13 imposed or sentence in lieu will remain intact. However, both the sentences will run concurrently.
38. The learned counsel has prayed that the appellant is a poor neither he nor his Wali is in a position to, arrange the payment of "Dayiat" in lump sum so he he released on bail and be allowed to pay the "Dayiat" amount in easy instalments. The prayer is genuine and has not been opposed by the learned counsel for the State. Resultantly when the appellant serves out his substantial sentence, he be released subject to furnishing surety-bond against the Dayiat amount to be paid by him in equal instalments within a period of three years. The "Dayiat" amount so realised will be paid to the legal heirs of the deceased.
39. ' The appeal is dismissed with the above modification. The revision petition filed by complainant is also dismissed having no force