1. ' BASHIR A. MUJAHID, J.---Shafi Ullah, Anayat Ullah and Habib Ullah have challenged judgment dated 24-3-1999 passed by Special Judge, Suppression of Terrorist Activities Court No,1, Mianwali whereby they were convicted under section 302(b)/34, P.P.C. For commission of murder of Muhammad Riaz, and Shafi Ullah was sentenced to death while Anayat Ullah and Habib Ullah were sentenced to imprisonment for life each. All the appellants were directed to pay compensation of Rs,1,50,000 each to the legal heirs of the deceased, in default of payment thereof they had to further undergo 5 years rigorous imprisonment each. Anayat Ullah and Habib Ullah were however, extended benefit of section 382-B, Cr.P.C. Through the same judgment, Nemat Ullah, Hayat Ullah, Muhammad Ayub, Amir Abdullah, Atta Ullah, Asmat Ullah and Hidayat Ullah alias Khan were acquitted of the charge.
2. ' The brief facts of the prosecution case are that F.I.R. No,55 Exh.P.D. Was registered at Police Station Qamar Mashani, District, Mianwali at 10-00 a.m. On 30-4-1.996 at the instance of Ghulam Muhammad Khan, P.W.7 wherein it was alleged that his son Muhammad Riaz was Foot Constable in the police and was on leave. On the day, of occurrence at about 10-00 a.m. In order to leave for his job he was present at Adda Trag in front of Madina Sweet' Shop. The complainant along with his other son Muhammad Hayat P.W.9 and Saif Ullah P.W.8 were also present, when all of a sudden Anayat Ullah, Hadayat Ullah sons of Yaqoob Khan, Shafi Ullah son of Habib Ullah, armed with pistol .30-bore, Habib Ullah, Amir Abdullah son of Yaqoob Khan armed with rifles arrived there while raising Lalkara. Anayat Ullah caused fire-arm shat from his pistol at Muhammad Riaz hitting on left side of his abdomen, Hadayat Ullah and Shafi Ullah also fired one shot each, from their pistols at Muhammad Riaz hitting on his left shoulder. Habib Ullah fired from his rifle hitting left side of abdomen of Muhammad Riaz. Amir Abdullah made fire from his rifle hitting nose of Muhammad Riaz, who fell down on the ground after receiving the injuries. In the meantime, Hayat Ullah, Atta Ullah, Asmat Ullah, Nemat Ullah sons of Amir Abdullah also armed with their respective weapons arrived at the spot while firing in the air and they all resorted to indiscriminate firing. The prosecution witnesses did not intervene due to fear to their' lives. On hearing of fire shot many persons were also attracted to the spot and the accused fled away along with respective weapons. Muhammad Riaz was removed to the hospital in injured condition who succored to the injuries in the hospital. The motive for the occurrence was that on 29-4-1996 at about Deegarwela, an altercation took place between Muhammad Riaz and Anayat Ullah at Adda Trag and to take revenge of that the instant offence was committed by the accused.
3. ' Muhammad Aslam, S.I/S.H.O. P.W.14 after registration of F.I.R. Exh.P.D arrived at Eisa Khel Hospital and took the dead body of Muhammad Riaz into possession and prepared the injury statement through memo. Exh.P.O and inquest report Exh.P.P. And handed over the dead body for post- mortem examination to Muhammad Altaf, F.C. Thereafter, he arrived at the place of occurrence and took the blood-stained earth into possession through memo. Exh.P.E. On the same day Muhammad Altaf, F.C. Produced before him last worn-clothes of the deceased which were taken into possession through memo. Exh.P.N. On 6-5-1996, he arrested Shafi Ullah accused, who while in police custody led to the recovery of pistol .30-bore P.1. And three live bullets P.2/1-3, which were taken into possession through memo. Exh.P.B. On 14-5-1996, he arrested Habib Ullah, Inayat Ullah.
4. On 19-5-1996, Inayat Ullah while in police custody led to the recovery of pistol P.8 and five live cartridges P.9/1-5 which were taken into possession through memo. Exh.P.K. On the same day, Habib Ullah accused also led to the recovery of rifle P.10. And 10 live cartridges P.11/1-10 which were taken into possession through memo. Exh.P.L. He also arrested other accused and effected the recoveries, recorded the statements of the P.Ws. Under section 161, Cr.P.C., completed the investigation and submitted the challan against the accused before the Court.
5. ' The trial Court framed the charge which was denied by the accused and they claimed trial.
6. ' During the trial, the prosecution examined as many as 14 witnesses to prove the guilt of the accused.
7. ' The medical evidence was furnished by Dr. Mohib-ur-Rehman; P.W.1, who on 30-4-1996 at 2-00 p.m. Conducted the post-mortem examination on the dead body of Muhammad Riaz and found the following injuries on his body:-
(1) A grazing fire-arm wound 9 x 3 c.m. x muscle deep in the right renal area, 22 c.m. Below the midaxillary point and 20 c.m. Away and above the right anterior superior iliac spine, and 19 c.m.
8. From the umbilicus. There was corresponding hole in the clothes.
(2) A fire-arm wound of 1.5 x 1.5 c.m. On the left lateral chest wall, 11 c.m. Above the injury No,1, 14 c.m.
9. From the thoracic spine on the back. There was corresponding hole in the clothes.
(3) A fire-arm wound of entry 1 x 1 c.m. On the left lateral chest wall, 10 c.m. Below the left nipple, 7 c.m. Below the left mid axillary point.
(4) A fire-arm wound of entry 1.5 x 1 c.m. On the anterior aspect of left arm, 9 c.m. Below the left shoulder tip. There was corresponding hole, in the clothes.
(5) A lacerated wound of exit 1.5 x 1 c.m. On the anterior aspect of left shoulder, 3 c.m. Below the tip of left shoulder and 5 c.m. Above injury No,4.
(6) A grazing fire-arm wound smashing the palace of the nose with anterior part of septum of the nose 4.5 x 1.5 c.m.
(7) Two lacerations each measuring 1.5 x 2 c.m. On the occipital region of skull.
10. ' The ocular account was furnished by Ghulam Muhammad Khan, P.W.7 who was complainant of the case and eyewitness of the occurrence. He supported the version of the F.I.R. And narrated the motive for the occurrence. Saif Ullah Khan was real brother of the complainant who was examined as P.W.8, he supported the prosecution story as an eye-witness of the occurrence. Muhammad Hayat was also son of the complainant and brother of Muhammad Riaz deceased. He was examined as P.W.9." He also supported the prosecution story as an eye-witness of the occurrence.
11. Muhammad Akbar, F.C. P.W.4 had attested the recovery memo. Exh.P.B through which Shafi Ullah got recovered his weapon of offence. Faiz Ullah Khan A.S.I. P.W.10 had attested the recovery memo.s. Exh.P.K and Exh.P.L along with the Investigating Officer whereby Inayat Ullah and Habib Ullah appellants got recovered their weapons of offence. The remaining witnesses are of formal nature and need not to be discussed.
12. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.R and that of Serologist Exh.P.S. ' The statements of the accused were - recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. Shafi Ullah appellant in reply to question No,8 as to why the case against him and the P. Ws. Deposed against him stated as under:- "On 18-4-1996 a Patwar Khana contiguous to the house of the deceased and his father was auctioned by the Government. My uncle Amir Abdullah and Muhammad Hayat, P.W. Participated in the bidding and my uncle Amir Abdullah succeeded in outbidding Muhammad Hayat, P.W. As the Patwar Khana was contiguous to their house, the complainant party took it ill and was after us to have a quarrel with us. On the day of occurrence my uncle Atta Ullah was waiting for the ambulance of D.H.Q Hospital Isakhel because my grandmother was operated a few days before this occurrence and was to be taken to Jinah Hospital Mianwali for checking when Muhammad Riaz, deceased armed with a pistol and Muhammad Hayat with knife attacked him and injured him and I in order to save the life of my uncle Atta Ullah fired at Muhammad Riaz who sustained injuries and died. At that time no other accused was present there. I made the same plea before the police."
13. ' The accused examined Dr. Sher Ali Khan as D. W .1 who on 30-4-1996 medically examined Atta Ullah Khan and found the following injuries on his person:-
(1) A tiny fire-arm wound 0.2 x 0.2 c.m. x edges burnt on front and lateral side of left side of neck. If was muscle deep.
(2) There were two abrasions parallel and 2 c.m. Apart on front and lateral side of left side of neck and clavicle. These were 4 x .2 c.m. Each. These were 3 c.m. Lateral to injury No,l.
(3) A grazing fire-arm wound .5 x .3 c.m. On front of left chest, 5 c.m. Above and lateral to left nipple.
14. The edges were burnt on upper side. It was skin deep.
(4) An incised wound 3.5 x .5 c.m. x bone deep on left forehead, 1-1/2 c.m. Above eyebrow.
15. ' The trial culminated into conviction of the appellants as mentioned above. They have challenged their conviction and sentence through Criminal Appeal No,297 of 1999 while the complainant has filed Criminal Appeal No, 404- of 1999 against acquittal of co-accused. Both the matters are being decided by this single judgment.
16. ' Learned counsel for the appellants has argued that Atta Ullah uncle of the appellant Shafi Ullah was injured by the complainant party and in exercise of right of self-defence and to save Atta Ullah, Shafi Ullah caused fire shots to the deceased Muhammad Riaz; According to the statement of Dr. Mohib-ur-Rehman, P.W.1, the injuries on the deceased could be the result of one fire shot, therefore, there is clear contradiction in ocular account and medical evidence. The defence plea is more reasonable and probable and the conviction recorded against the appellants is not sustainable under the law; that the P. Ws. Are closely related inter se and to the deceased and admittedly many other persons gathered at the spot, but no independent witness was examined by the prosecution and the testimony of interested witnesses has not been corroborated from any other independent source; that the co-accused were acquitted of the charge by disbelieving the same prosecution evidence, therefore, the conviction of the appellants cannot be maintained on the basis of statements of those witnesses; that the prosecution has failed to prove its case against the appellants beyond shadow of doubt, therefore, their appeal be accepted and they be acquitted of in charge.
17. ' Conversely, the learned counsel for the complainant and for the State have supported the impugned judgment. Learned counsel for the complainant has prayed for conviction of the acquitted co-accused.
18. ' Heard. Record perused.
19. The occurrence took place at 10-00 a.m. On 30-6-1996 and case was registered at 10-45 a.m. On the same day at the police station which was at a distance of 8 k.Ms. From the spot. It was a daylight occurrence and the appellants with specific role are nominated in the promptly lodged F.I.R. Shafi Ullah, Anayat Ullah and Habib Ullah, appellants have been attributed fire-arm injuries caused to Muhammad Riaz deceased from their respective weapons. The arguments of the learned counsel that according to the medical evidence furnished by Dr. Mohib-ur-Rehman P.W.1, the injuries on the deceased could be the result of one fire shot, is not correct. As injury No,1 which has been attributed to Habib Ullah, Injury No,3 to Anayat Ullah while Injury No,4 to Shafi Ullah are independent and separate injuries and we do not find any contradiction in the ocular account and the medical evidence, as microscopic picture of the occurrence and minute detail of injuries is not possible. The non-recovery of the empty from the spot also shows that only one fire shot was caused by each of the appellants. The defence plea of Shafi Ullah that he caused fire-arm injuries to the deceased in exercise of his self-defence after receiving information of attack launched by the deceased at his uncle Atta Ullah has no force and has not been proved by convincing evidence Dr. Sher Ali Khan, D.W.1 admitted in his cross-examination that Injuries Nos.1 and 3 did not cause much damage and he could not say that if these were self-suffered or caused with friendly hands.
20. According to record Atta Ullah injured had left the hospital on 30-4-1996 at 11-00 p.m. On his own which also creates serious doubt about the defence version. The place and time of occurrence has been admitted. The testimony of eye-witness Ghulam Muhammad Khan, P.W.7, Saif Ullah Khan, P.W.8 and Muhammad Hayat P.W.9, is confidence-inspiring and they are truthful witnesses.
21. Although they are closely related inter se but they have no previous enmity for false implication of the appellants or their substitution by letting off the real culprit. It is also understandable that neutral persons do not come forward to depose against the culprits due to fear to their lives and property. After deep reappraisal of evidence, we find that the appellants are the real, culprits and they caused the death of innocent young man by fire-arm injuries and there is no ground to interfere in the conviction recorded against them by the trial Court.
22. As far as the quantum of sentence is concerned, in the opinion of Dr. Mohibur-Rehman, P.W.1 who conducted the postmortem examination the death was ',accumulative result of all fire-arm injuries on the deceased and the role of Shafi Ullah is not different from the co-convicts. The motive alleged by the complainant was also with Anayat Ullah for having altercation on 29-4-1996, therefore, he deserves the same treatment. In the interest of justice we find that death penalty awarded to Shafi Ullah, appellant is not just and proper and the reasons given by the learned trial Judge forwarding him death penalty are not borne out from the record, therefore, we alter his sentence from the death to imprisonment for life. The sentence cu other appellants and the compensation imposed on the appellants is maintained but In default of payment . Of compensation each a appellant will undergo six months simple imprisonment. The benefit of section 382-B, Cr.P.C. Will be available to all the appellants. Criminal Appeal No,297 of 1999 is dismissed with the above modification.
23. ' Criminal Appeal No,404 of 1999 filed by the complainant is also dismissed having no force.