1. ' BASHIR A. MUJAHID, J.--Yousaf alias Jara Masih, son of Barkat Masih, Niamat son of Nawab Masih, Pervaiz Sadiq son of Sadiq Masih and Mushtaq Masih, son of Sohan Masih have challenged judgment dated 1-10-1997 passed by the learned Additional Sessions Judge, Lahore whereby they were convicted under section 302/34, P.P.C. For causing death of Zaman Masih and sentenced to death and each of them was also ordered to pay compensation of Rs,50,000 each to the legal heirs of the deceased or in default of payment of fine they have to undergo 6 months' rigorous imprisonment. They were further convicted under section 324/34, P.P.C. And sentenced to 10 years' rigorous imprisonment each and fine of Rs,10,000 each or in default of payment of fine to further undergo 6 months' rigorous imprisonment for causing injuries to Pervaiz Kundan Masih P.W.6.
2. ' Through the same , judgment Saddique Masih, Shaukat Masih and Akbar Masih were acquitted of the charge: ' Brief facts of the prosecution case are that F.I.R. No,102 of 1995 dated 22-4-1995 Exh.P.C/1 was registered at Police Station Gulberg, Lahore at 8 p.m. On 22-4-1995 on the statement Exh.P.0 of Rehmat Masih P.W.5 recorded by Abdud Wahid, Inspector, S.H.O., P.W.14 at. Emergency Ward, Services Hospital, Lahore at 7-30 p.m. About the occurrence allegedly took place at 5-15 p.m.In Kachi Abadi Jhuggian F.C. College at a distance of one k.m. From the police station, wherein it was alleged that the complainant Rehmat Masih P.W.4 'along with his son Zaman Masih and Pervaiz Masih P.W.6 who was his sister's son-in-law, were going towards the main road and at about 5-15 p.m. When they were near church in a street, they found Yousaf alias Jara Masih armed with Dagger, Niamat alias Kaka also armed with Dagger, Shatkkat Masih, Pervaiz Masih, Mushtaq Masili% armed' with Chhuris while Akbar Masih, Barkat Masih and Saddique Masih empty-handed with whom the complainant had protracted litigation were way laid who emerged all of a sudden.
3. Barkat Masih and Saddique Masih instigated their companions to take revange from the complainant party on which Jara, Niamat Masih, Pervaiz Masih, Sadiq and Mushtaq Masih attacked them. Zaman Masih son of the complainant and Perviiz Masih tried to run away but they were encircled by the accused and were attacked by their respective weapons. The accused who were empty handed kept on kicks and fist blows and were raising Lalkara. The complainant raised hue and cry which, attracted Youna Masih, Saledth Masih and Safdar, Ali son of Hasan Din and other inhabitants ' of the locality. They witnessed the occurrence. They tried to. Intervene. Meanwhile Zaman Masih and Pervaiz Masih fell on the ground after receiving injuries. The accused fled away brandishing their weapons of offence. The injured were removed to the Services Hospital through Rickshaws. Pervaiz Masih was admitted in the hospital while Zaman Masih son of the complainant succumbed to the injuries on the way.
4. ' The motive .For the occurrence was . Alleged, that there was old litigation between the parties.
5. ' Abdul Wahid, Inspector P.W.14 after recording statement Exh.P.0 of the complainant sent the same to police station through Musharraf Javed F.C. For registration of case and he himself took the dead body of Zaman Masih into possession and prepared the inquest report vide memo. Exh.P.K, and entrusted the dead body to Muhammad Munir and Munawar Mushtaq F.Cs. For post-mortem examination and he moved an application Exh.P.L before the doctor for recording the statement of Pervaiz Masih but according to the opinion of the doctor he was not fit to make the statement.
6. Thereafter, he arrived at the place of occurrence and took into possession blood-stained earth from, the spot vide memo Exh.P.I. He recorded the statements of the eye-witnesses under section 161, Cr.P.C. On 23-4-1995 last worn clothes of the deceased were produced before him which he took into possession vide memo. Exh.P.A.
7. ' On 5-5-1995 he arrested all the accused and got their physical remand on 7-5-1995 and on that date Yousaf Masih while in police custody led to ,the recovery of blood-stained Dagger P.3 which was taken into possession vide memo. Exh.P.D.
8. ' On the same day Pervaiz Masih led to the recovery of Chhuri (blood-stained) which was taken into possession vide memo. Exh.P.E, Niamat Masih while in police custody led to the recovery of blood- stained Dagger P.5 which was taken into possession vide memo. Exh.P.F. Mushtaq Masih got recovered Chhuri P.6 from the same place 'Which was taken into pos'session vide memo. Exh.P.G.
9. He completed the investigation and submitted the challan of the case. All the recovery memos.
10. Were attested by Younas Masih P.W.7 along with Abdul Wahid Malik Investigating Officer, P.W.14. He recorded statements of the prosecution witnesses.
11. ' During the investigation he found Barkat Masih, Shaukat Masih and Saddique Masih innocent and got them discharged from the Magistrate on 23-5-,1995.
12. ' The trial Court framed the charge which was denied by the appellants/accused and claimed trial.
13. ' During the trial prosecution examined as many as 14 witnesses to prove the guilt of the accused.
14. ' Medical evidence was furnished by Dr. Muhammad Saleem Malik P.W.9 who on 22-4-1995 at 5-45 p.m. Medically examined Pervaiz Masih and found the following injuries on his person:-
(1) A stab wound 2 x 1/2 c.m. Depth not proved on the right side of chest in the anterior axillary line at the level of 7th intercostals space.
(2) A stab wound 2 x c.m. Depth not proved 3 c.m. Inner and lower to injury No, I.
(3) An incised wound 6 x '/2 "c.m. On the lateral (outer side of right thigh in the upper and middle 1/3 with the cut in the trouser corresponding to injury. Injury was muscle deep.
(4) .A stab wound 2 x V2 c.m. In left 11th intercostals space on back in the posterior axillary line.
(5) An incised wound 5 xV2 c.m. Behind injury No,3.
(6) An incised wound 3 x V2 c.m. On the upper and inner part of right thigh.
(7) An incised wound 3 x 1/2 c.m. On the inner side of middle 1/3 of right thigh.
15. ' Dr. Muhammad Maqsood P.W.12 on 23-4-1995 at 11-30 a.m. Conducted postmortem examination on the dead body of Zaman Masih and found the following injuries:-
(1) An abrasion 3 x 1 c.m. On left upper cheek 4 c.m. From left car tragus and lc.m. Below left eye brow.
(2) An abrasion 2 x 1.5 c.m. On left nasal ala 2.2 c.m. Below the root of nose.
(3) A linear oblique scratch 4 x 0.2 c.m. On left side of the neck 5.5 c.m. Left ear louble and 5.5. c.m.
16. From mide line.
(4) A spindle shaped incised wound 3.5 x 2 c.m. Going deep on lower chest 11 c.m. Below left nipple at 6.0 clock position and 9.5 c.m. From mid line. Margins are clean cut, inverted and lower angle was acute. It was lying obliquely and corresponded with cut on the Shirt.
17. ' According to his opinion injuries Nos.1 and 2 were caused by blunt weapon while injuries Nos.3 and 4 were caused by sharp-edged weapon (pointed). Injury No,4 was stab wound and cause of the death was perforation of hearth under injury No,4 leading to shock and death.
18. ' The ocular account was furnished by Rehmat Masih P.W.5 who was complainant of the case. He supported the version of the F.I.R. And narrated the motive for the occurrence. Pervaiz Kundan Masih P.W.6 was injured eye-witness of the occurrence. He supported the prosecution story as narrated by the complainant implicating the appellants for causing injuries to him as well as to the deceased \ Zaman Masih. Younas Masih P.W.7 was also eye-witness of the occurrence. He supported the complainant as well as Pervaiz Kundan Masih P.W.6. He was brother of Pervaiz Kundan Masih injured P.W.6. He also attested the recovery memos. Of weapons of offence got recovered by the accused/appellants. Safdar Ali P.W.8 also supported the prosecution case as eye-witness. He stated that on the day of occurrence at about 5 p.m.He was present near Kachi Abadi in order to purchase cigarettes and in his presente the appellants inflicted injuries to Zaman Masih and Pervaiz Masih. The remaining witnesses are of formal in nature and need not be discussed.
19. ' Prosecution evidence was closed by tendering in evidence the report of Chemical Examiner as Exh.P.N and that of the Serologist as Exh.P.O.
20. ' Statements of the accused were recorded under section 342, Cr.P.C. They denied the allegation and claimed their innocence and false involvement. They also denied the motive for the alleged occurrence.
21. ' Accused examined Wali Muhammad D.W.2 and Muhammad Javed D,W.3 in their defence and proved alibi of Shaukat Masih and. Saddique Masih.
22. ' The trial culminated into conviction of the appellants as mentioned above. They have, challenged their conviction and sentence through Criminal Appeal No,601 ' of 1997 while the trial Court has sent up Murder Reference No,601 of 1997 for confirmation of death sentence under section 374, Cr.P.C.
23. Both these matters are being decided by this single judgment.
24. ' Learned counsel for the appellant at the very out set has argued that he would not challenge the conviction and prays for reduction of sentence on the ground that the fatal injury was only injury No,4 on the person of deceased which is not attributed to any of the appellants and all of them have allegedly caused one injury each to the deceased and out of four injuries, injuries Nos.1 and 2 are the result of blunt weapon while the appellants were allegedly armed with sharp-edged weapons. It has been further argued that the motive alleged by the prosecution of old standing enmity of litigation has not been proved rather the motive has been changed during the trial.
25. Therefore, this is not a case of extreme penalty of death.
26. ' Conversely the 'appeal has been opposed by the learned State counsel and for the complainant.
27. ' Heard. Record perused.
28. The appellants are nominated accused in promptly recorded F.I.R. They A have been attributed specific role and all of them caused four injuries to the deceased and 7 injuries to Pervaiz Kundan Masih P.W.6. The ocular account furnished by the eye-witnesses who are Rehmat Masih complainant P.W.5, Pervaiz Kundan Masih P.W.6, Younas Masih P.W.7 and Safdar Ali P.W.8, has been fully corroborated-by A the medical evidence. The presence of the eye-witnesses at the spot is natural and their testimony is confidence-inspiring. Presence of Pervaiz Kundan Masih P.W.6 who received as many as 7 injuries in the same occurrence at the spot cannot be doubted. Therefore, after deep re-appraisal of evidence, we find that the learned counsel for the appellants is justified for not challenging the conviction recorded against the appellants.
29. As far as the sentence is concerned, we agree with the learned counsel for the appellants that injury No,4 which was declared fatal by the doctor P. W.12 who conducted the post-mortem examination has not been specifically attributed to any of the appellants. They have been attributed only one injury each having been caused to the deceased while injuries No,1 and No,2 on the deceased have been caused with blunt weapons. The complainant P.W.6 even in his statement before the trial Court has not attributed injury No,4 to any of the appellants. However, -Pervaiz Kundan Masih P.W.6 injured in the same occurrence has attributed injuries No,3 and 4 to Yousaf alias Jara and Mushtaq Masih respectively, but he has been confronted by the defence with his statement Exh.D.A made by him under section 161, Cr.P.C. Wherein he had hot attributed these injuries to any accused specifically. Therefore, he has improved his statement which cannot be relied upon. We also find that the motive alleged by the complainant in the F.I.R. Was old litigation between the parties but he has failed to give any stance about the pendency of litigation between them at any stage. During the trial, he has changed his motive by stating that there was controversy of leadership in the locality.
30. ' Learned counsel for the complainant has placed reliance on 2001 SCM R 387 to argue that absence or weakness of motive is no ground for awarding lesser sentence. We agree that no other view can be taken to the proposition put by the learned counsel for the complainant but according to the latest pronouncement of Honourable Supreme Court in case reported as 2002 SCM R 99 Feroze Khan v. The State, that if the complainant changes his motive by jumping from one to another it may be taken 'as mitigating circumstance for awarding lesser sentence. In the instant case as the complainant could not prove his alleged motive of old enmity or longstanding litigation and he has changed his stance as each one of them wanted to become 'Chaudhary of the village. Therefore, after deep re-appraisal of evidence, we find that it is not a case to maintan, the normal penalty of death. Therefore, we while maintaining the conviction alter the sentence from death to imprisonment for life to each of the appellants in the safer administration of criminal justice which will 'meet the ends of justice. The other sentences are, however, maintained. Both the sentences shall run concurrently and benefit of section 382-B, Cr.P.C. Will also be available to the appellants. This appeal is dismissed with the above modification.
31. ' Murder Reference No,306 of 1997 is answered in the negative.
32. Sentence reduced.