' BASHIR A. MUJAHID, J.---Sana Ullah Khan son of Muhammad Nawaz and Zubair Khan son of Ghulam Qasim have challenged judgment dated 21-12-1996 passed by learned Sessions Judge, Mianwali, whereby they were convicted under section 302(b)34, P.P.C. And sentenced to death for commission of murder of Aman Ullah son of Wallayat Muhammad Khan.
2. The occurrence which resulted into murder of Aman Ullah took place on 5-2-1993 at 9.45 a.m. In Mianwali City near Truck Adda at a distance of 2 kms. From the Police Station City, Mianwali and F.I.R. No,26 (Exh. PB) was registered on the statement of Muhammad Ameer Khan, P.W. 5 at 10-15 a.m. By Khalid Bashir, S.-I./S.H.O. P.W.10, alleging therein that Aman Ullah (deceased) was constructing Service Station near Truck Adda Mianwali. On 3-2-1993, Ghulam Qasim Khan, father of Zubair Khan, appellant had injured Aman Ullah (deceased) by fire shot and case was got registered against him. Aman Ullah was admitted in the hospital due to fire injury. On the eventful day, Aman Ullah and Ghulam Muhammad alias Nikka, P.W.6 arrived at the Service Station to see the construction work where the complainant alongwith Anwar Khan 'was already present and they were informed that due to Friday (holiday) the work could not be started at the Service Station on which all the four started walking towards Truck Adda, Near Jamia Masjid they wore confronted with the present appellants armed with guns raised Lalkara that they will teach lesson for setting a criminal case registered against Ghulam. Qasim Khan and for not effecting compromise. Aman Ullah turned back when Sana 'Ullah caused fire shot from his gun hitting on his back, who was falling down when second shot was made by Zubair from his gun which also hit deceased at his back. Aman Ullah fell down and succumbed to the injuries at the spot. The accused decamped from the place of occurrence. The dead body was removed to the hospital by the prosecution witnesses.
' The motive for the occurrence was that accused were compelling to effect the compromise of the earlier case but Aman Ullah and the complainant had not agreed and due to this grudge, present offence was committed.
3. Khalid Bashir Cheema, Inspector/S.H.O. P.W.10 after recording the F.I.R. Exh. PB on the statement of Muhammad Amir Khan, P.W.5, arrived at D.H.Q. Hospital, Mianwali and took into possession the dead body of Aman Ullah and prepared his injury statement and inquest report vide memo. Exh.
PG. And handed over the dead body to Muhammad Aslam, FC for post-mortem examination and he himself arrived at the place of occurrence wherefrom he collected blood-stained earth vide memo. Exh. PC. The memos. Were attested by Ghulam Muhammad and Muhammad Anwar Khan.
On 6-3-1993, he arrested the accused. On 15-3-1993, Sana Ullah accused while in police custody led to the recovery' of gun P.4 and six live cartridges P.5/1-6 which were taken into possession vide memo. Exh.PD. On 18-3-1993 Zubair Khan accused while in police custody led to the recovery of gun P.6 and five live cartridges P.7/1-5 which were taken into possession vide memo. Exh. PE. He completed the investigation and submitted the challan.
' The accused denied the allegations and claimed the trial.
4. During the trial, the prosecution examined as many as 11 witnesses to bring home the guilt of the accused.
' The post-mortem examination on the dead body of Aman Ullah was conducted by Dr. Munawar Hussain Tabassum, who had proceeded abroad and could not be examined but post-mortem examination report Exh.PJ and sketch of injuries Exh. PJ/1 were proved by Dr. Sher Ali Khan, P.W.11, who identified the handwriting and signatures of Dr. Munawar Hussain on both these documents.
According to Exh. PJ and Exh.PJ/1, following injuries were found on the dead body during post- mortem examination:--
1. A healing wound of about three days duration converted with granulation tissue running transversely on outer side of right upper arm, 3 c.m. x 1 c.m., 4 c.m. Proximal to right elbow joint.
2. A fire-arm wound of entry 1 x 1 c.m. On back of left chest, 4 c.m. From mid line and 7 c.m. From inferior angle of left scapula.
3. A wound of entry 1 x 1 c.m., 1 1/2 c.m. Superolatero to injury No,2.
4. A wound of entry 1 x 1 c.m., 2 c.m. Inferolateral to injury No,2.
5. A wound of entry 1 x 1 c.m., 2 c.m. Below injury No,4.
6. A wound of entry 1 x 1 c.m., 3 cm inferomedial to injury No,5. Note:- The maximum distance between injuries 2-6 was 7 c.m.
7. A wound of entry 1 x 1 c.m., 4 c.m. From mid line and 8 c.m. From inferior angle of right scapula.
8. A wound of entry 1 x 1 c.m., inferolaterol to injury No,7.
9. Two entry wounds each 1 x 1 c.m. And lc.m. Apart, 5 c.m. From injury No,7 and 3 c.m. From mid line.
Note:- The maximum distance between injuries on right side was 7 c.m. And between injuries on right and left was 17 c.m.
10. Three exit wounds each 3/4 x 3/4 c.m. On front of left chest in curve, 7 c.m. Superomedial to left nipple.
11. A wound of exit 3/4 x 3/4 c.m., 4 c.m. Inferomedial to left nipple.
12. A wound of exit 3/4 x 3/4 c.m., 10 c.m. From left nipple and 3c.m. From mid line.
' The ocular account was furnished by Muhammad Amir Khan, P.W.5, who was complainant of the case and Ghulam Muhammad, P.W.6. Muhammad Amir Khan, P.W.5 supported the version of the F.I.R. And narrated the prosecution story as an eye-witness of the occurrence. He also proved the motive for the occurrence. Ghulam Muhammad, P.W.6 also supported the prosecution story as an eye-witness of the occurrence. His statement is in line with the statement of complainant P.W.5.
Ghulam Muhammad, PW6 also attested the recovery memo. Exh.PC whereby blood-stained earth was taken into possession from the spot. Muhammad Aslam, FC P.W.3 had escorted the dead body for post-mortem examination and produced last worn clothes of the deceased before the Investigating Officer Exh.PA. Rayees Khan, A.S.-I. Was examined as PW7, who had attested the recovery memo. Exh.PD regarding gun P4 got recovered by Sana Ullah, accused and Exh. PE whereby gun P.6 was got recovered by Zubair, accused. Muhammad Shafiq Khan, P.W.8 prepared the site plan of the place of occurrence. Khalid Bashir Cheema, P.W.10 investigated the case as mentioned above.
' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.
PK and that of Serologist Exh.PL.
' The statements of the accused/appellants were recorded under section 342, Cr.P.C. Towards the end of the trial. They denied the charge, claimed their innocence and false involvement. In reply to Question No,7 as to why the case against them, both the accused replied as under:-- "The version of the case has been concocted with the consultation of the lawyers, who are related to the complainant and the deceased. In order to create alibi he was admitted in the hospital at the instance of the doctor, who was his relative and he left the bed early in the morning when it was dark and the occurrence had taken place during dark hours and out of enmity they have been falsely implicated in this case."
' Muhammad Hafeez Khan, petition-writer was examined in defence as PW1,who brought his register relating to the year 1992 to prove the agreement/rent deed dated 3-10-1992 between Aman Ullah and Nijabat Hussain of plot where Service Station was being constructed. Sana Ullah, accused also produced in his defence Nikah Nama, Exh.DJ and copy of the order of Court dated 9- 7-1996 Exh. DK and copy of judgment dated 20-3-1993 Exh. DL, and copy of order of case titled Mst.
Bakhat Bano v. Ghulam Muhammad Khan dated 2-2-1986 Exh.DM.
' The trial culminated into conviction of the appellants as mentioned above.
' The appellants have challenged their conviction and sentence through Criminal Appeal No,1110 of 1996, while the complainant has filed Criminal Revision No,37 of 1997 for imposition of compensation. The trial Court, has sent up Murder Reference No,48 of 1997 for confirmation of death sentence of the accused/appellants under section 374, Cr.P.C. All the matters are outcome of the same judgment, therefore, are disposed of by this single judgment.
' Learned counsel for the appellants has argued that the nature/dimension and seat of injuries show that it is a result of one and single fire shot and two persons have been involved falsely. It has been further argued that the time of occurrence was not mentioned in the F.I.R., but has been interpreted subsequently after obtaining the postmortem report which proves that the occurrence took place during early hours of the day and it was an unwitnessed occurrence; the dead body was removed to the hospital by some unknown persons and the appellants have been implicated falsely; the presence of the eye-witnesses at the spot was not natural and unbelievable as the agreement/rent deed between Aman Ullah and Nijabat Hussain regarding the same plot for construction of Service Station was executed between the parties in October, 1992 and the present occurrence took place on 5-2-1993 when Aman Ullah had no concern with construction of Service Station; that the prosecution witnesses are interested and inimical and their testimony has not been corroborated from any other independent source. Lastly, it has been argued that this case is not of capital punishment.
' Conversely, the appeal has been opposed by learned counsel for the complainant and for the State. Learned counsel for the complainant stressed for awarding compensation.
' We have given due consideration to the contentions raised at the bar and have also perused the record minutely.
' It is correct that two certified copies of F.I.R. Have been placed on record as Exh. P.B. In one of those, the time of occurrence has not been mentioned but in the other the time of occurrence has been written as 9.45 a.m. The objection of the learned counsel has got no force as in the relevant column of the F.I.R. In both the copies, the time of occurrence is given as 9.45 a.m., therefore, non-narration of the time in the body of the F.I.R. Is immaterial. The time for the occurrence has also been corroborated by the post-mortem examination report which was conducted at 1.30 p.m. On 5-2- 1993 wherein it is stated that time between occurrence and post-mortem examination was 4/5 hours, therefore, the appellants cannot be given any benefit on this score.
' Another argument advanced by the learned counsel for the appellants was that Aman Ullah, deceased left the hospital on his own before 8.00 a.m. And was done to death by some unknown person, has no force as Ghulam Muhammad, P.W.6 stated before the trial Court that he accompanied the deceased from the hospital to the Service Station, where they met the complainant. He has not been cross-examined on this aspect. The accused are closely related to the deceased. They have no previous enmity except the case got registered by Aman Ullah deceased against Ghulam Qasim, father of Zubair accused for which the efforts for compromise were being made, therefore, there is no reason for false implication of the appellants and the prosecution witnesses cannot be termed as interested and inimical due to the relationship with the deceased. Ghulam Muhammad P.W.6 although is involved in many other cases, put his testimony cannot be discarded only for this reason.
The accused were nominated in the promptly recorded F.I.R., as the occurrence took place at 9-45 a.m, and the was recorded at the police station at 10-15 a.m. It was a daylight occurrence. The parties are closely related inter se. There is no question of mistaken identity. The statements of both the eyewitnesses Muhammad Amir Khan, P.W.5 and Ghulam Muhammad P.W.6 are consistent on material points. Their presence at the spot at relevant time has also been established and their evidence even without further corroboration is sufficient to maintain the conviction. We do not find any reason for the substitution by letting off the real culprits.
' After deep re-appraisal of evidence, we are convinced that prosecution case has been established against the appellants beyond any shadow of doubt and did not find any force to interfere in the conviction recorded against the appellants.
' As far as the sentence is concerned, the argument of the learned counsel for the appellants that Dr. Munawar Hussain Tabassum who had conducted the post-mortem examination was not examined from whom it could be asked whether the injuries on the deceased could be result of one fire shot, has weight. According to Muhammad Ameer Khan P.W.5 and Ghulam Muhammad P.W.6, deceased on hearing Lakara turned back when first fire was made by Sana Ullah accused and he was in falling position when he received second shot made by Zubair Khan accused. The size of wounds and seat of the injuries are almost same. The doctor was not examined who could be cross-examined by the accused/appellants regarding the nature, dimension, the distance and location or position of assailants from where they fired at the deceased. The point No,2 in site plan Exh. PF is where from both the accused fired. Their place of presence has not been shown separately. No empties were taken into possession from the spot, therefore, recoveries of the guns is immaterial. It was also not stated in the F.I.R. As to with what kind of gun each of the accused was armed at the spot but the recoveries effected from them are of single barrel guns, therefore, it cannot be said with certainty that injuries were caused by two persons with different guns of which benefit is to be extended in favour of the accused. The accused have succeeded to cast some doubt on the version of the prosecution and genuinely they are entitled for its benefit in matter of sentence as held in 1993 SCM R 1660 titled Ansar Ahmad Khan Barki v. The State and another. We also feel that the occurrence might not have been taken place in the manner described by the prosecution as the dead body was removed by the prosecution witnesses on their own from the place of occurrence and the motive is also double-edged weapon particularly in the instant case the motive was more to the deceased to take revenge from the complainant party, therefore, in safe administration of justice the penalty of death is uncalled for. Reliance can be placed on 1988 SCM R 213 titled Nabi Bakhsh and another v. The State and others. Keeping in view all the circumstances of the case, while maintaining the conviction under section 302(b)/34, P.P.C., we reduce the sentence to imprisonment for life which will meet the ends of justice. Resultantly, Criminal Appeal No,1110 of 1996 filed by the appellants is dismissed with the above modification.
' The trial Court has not imposed the compensation which is mandatory required of law, therefore, we allow Criminal Revision No,37 of 1997 filed by the complainant and the appellants are directed to pay compensation of Rs,50,000 each to the legal heirs of Aman Ullah deceased and in default of payment of the same, they will further undergo six months' R.I. Each. Benefit of section 382-B, Cr.P.C.
Will also be available to the accused/appellants.
' The death sentence of Sana Ullah Khan and Zubir Khan is not confirmed. Murder Reference is answered in the negative.
Sentence reduced.