KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No. 1164 of 1998 filed by Abdul Majeed alias Bagga and Muhammad Tariq, appellants who were convicted under section 302(b) read with section 34, P.P.C. And sentenced to death with further direction to pay Rs.10,000 each, as fine, in default R.I. For one year and also to pay Rs.10,000 as compensation by learned Additional Sessions Judge, Toba Tek Singh vide judgment dated 1-12-1998.
Murder Reference No.77 of 1999 for confirmation or otherwise of death sentence of both the convicts shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 1-00 a.m. (mid-night) on 29-3-1997 within the revenue estate of Chak No.285/GB at a distance of one mile from Police Station Rajana while the matter was reported to the Police by Bashir Ahmad at 4-30 a.m. On the same morning at Chowk.
Rajana through written complaint Exh.P.B. And formal F.I.R. Exh.P.B./1 was recorded at 4-35 a.m. By Ghulam Sarwar, Head Constable.
3. Briefly stated the facts of the case are that at about 1-00 a.m. (mid-night) on 29-3-1997, Bashir Ahmad, the complainant, his brother Abdul Razzaq (deceased) were watering their fields when Abdul Majeed alias Bagga and Muhammad Tariq armed with shotguns, raising Lalkara to the effect that they would teach a lesson for giving filthy abuses to their womenfolk, emerged there.
Thereafter, Abdul Majeed fired with his shotgun which hit on the right side of back of Abdur Razzaq whereupon he fell down. The second shot was fired by Muhammad Tariq accused which hit on the right buttock of Abdur Razzaq. On alarm of the complainant, Muhammad Sarwar and Javed Akhtar who were supervising the watercourse came and witnessed the occurrence in the light of moon.
The complainant attended Abdur Razzaq but he succumbed to his injuries at the spot: The motive alleged was that few days prior to the occurrence Abdur Razzaq had given filthy abuses to the womenfolk of the accused and due to this grudge the accused murdered Abdur Razzaq, the deceased.
4. Investigation of the case was taken over by Inspector Alam Sher Javed (P.W.9). He, after registration of the formal F.I.R., went to the place of occurrence, inspected the dead body of Abdur Razzaq, prepared injury statement Exh.P.C., inquest report Exh.P.D., took into possession the blood- stained earth vide memo. Exh.P.G. And then the investigation was taken over by Ghazan Khan, Inspector (P.W.11). On 27-5-1997 he arrested both the accused. While in police custody, Abdul Majeed got recovered shotgun P.3 which was taken into possession vide memo. Exh.P.F. After completion of the remaining formal investigation, both the accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 11 witnesses in all. Then the learned A.P.P. Tendered in evidence report of the Chemical Examiner Exh.P.I., report of the Serologist Exh.P.J., report of the Forensic Science Laboratory Exh.P.K. And closed the case of the prosecution.
Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication. However, after conclusion of the trial, both the accused were convicted and sentenced as stated above.
6. Learned counsel for the appellants submits that occurrence had taken place at dead dark hours of the night; no source of light was mentioned in the F.I.R.; both the eye-witnesses are real brothers of the deceased no independent witness has been produced by the prosecution; no Warabandi has been produced by the prosecution to show the turn of water; ocular account is in conflict with medical evidence; no recovery was effected from Tariq appellant; he had pleaded alibi and produced sufficient evidence to prove his alibi; he was also found innocent during the course of investigation which were confirmed by the S.D.P.O.; no recovery was effected from the spot and that the prosecution has not been able to prove its case against the appellants beyond any shadow of doubt.
7. Learned counsel for the State submits that there were two injuries on the person of the deceased, one attributed to each accused; ocular account is fully corroborated by medical evidence; recovery has been effected from Abdul Majeed, appellant and that the eye-witnesses are independent and their testimony cannot be disbelieved. He supports the judgment of the trial Court.
8. We have heard learned counsel for the parties and have gone through the record. The occurrence had taken place at 1-00 a.m. (mid-night) on 29-3-1997 while the matter was reported to the police at 4-30 a.m. At Chowk Rajana and formal F.I.R. Was recorded at 4-35 a.m., the same day. According to F.I.R., it was Abdul Majeed, appellant who fired first shot which hit on the backside of Abdur Razzaq, deceased while the second shot was fired by Muhammad Tariq, appellant which hit on the buttock of the deceased. We have with the help of learned counsel for the parties gone through the post-mortem report of the deceased. The post-mortem examination was conducted by Dr. Aftab Ahmad, Medical Officer (P.W.4). He found two fire-arms injuries on the person of the deceased. Injury No. 1 was attributed to Muhammad Tariq, appellant. On exploration, a wad was recovered from the area of hip joint and the hipbone was fractured. Wad can be recovered only if the fire is shot from a very close range rather by putting the muzzle on a particular part of the body.
This is the reason that the complainant Bashir Ahmad (P.W.3) while appearing before the trial Court in his examination-in-chief (page 23 of the paper book) stated that when Abdur Razzaq, the deceased has fallen down after receiving injury at the hands of Abdul Majeed, Muhammad Tariq, appellant went near Abdur Razzaq and fired at him with .12 bore shotgun which hit on the right buttock of the deceased when nothing such was stated in the F.I.R., Exh.P.B./1. This dishonest improvement was made by the complainant in order to make in line the ocular testimony with medical evidence. According to site plan, Exh.P.A. And point A thereof from where Abdur Razzaq deceased was fired, the distance between the victim and assailants was 8 Karams which comes to 40 feet, so it also negates the version though with dishonest improvement that Muhammad Tariq, appellant fired while coming near to him. No recovery was effected from Tariq appellant. During the course of investigation, he took the plea of alibi and produced the attendance register and the witnesses before Azan Khan, Inspector (P.W.12). This Investigating Officer came to the conclusion that Muhammad Tariq, appellant was employee of Babar Flour Mills and was present on duty on the date and time of occurrence. The plea of alibi of Muhammad Tariq, appellant was verified by the S.D.P.O. More so, Muhammad Tariq, appellant is brother of Abdul Majeed, appellant, so possibility of his false. Implication also cannot be ruled out. Muhammad Tariq being real brother of Abdul Majeed, appellant; there being conflict between ocular testimony anu medical evidence qua him, dishonest improvement on the part of complainant Muhammad Bashir while appearing before the trial Court and non-recovery of any weapon of offence from him, makes his case of doubtful nature. So while extending the benefit of doubt, we set aside the conviction and sentence recorded against Muhammad Tariq, appellant and acquit him of the charge. He is in jail and shall be released forthwith, if not required to be detained in any other case. The death sentence of Muhammad Tariq, appellant is NOT confirmed and Murder Reference to his extent is replied in the NEGATIVE.
9. Now, we take up the case of Abdui Majeed, appellant. He opened the attack and fired a shot which hit on the back of the deceased. This injury, according to post--mortem report, is present on the person of the deceased. Recovery of shotgun has been effected from him. No crime empty was recovered from the spot for the reason that only one shot was fired with .12 bore gun and unless the .12 bore gun is reloaded, the empty does not eject. He was found guilty durin--g the course of investigation. Though both the eye-witnesses and Bashir Ahmad and Javeu Akhtar, P. Ws.2 and 10 are real brothers or the deceased but they had no enmity whatsoever to falsely implicate Abdul Majeed. Ocular account to his extent is fully corroborated by medical evidence. The injury attributed to him exists on the person of the deceased. The occurrence had taken place on 18th of lunar months so there was sufficient moonlight. Even otherwise, parties were known to each other, so there was no question of mistaken identity. No evidence has been produced by the defence to rebut that on the night of occurrence, there was no water turn of the complainant party. Merely because the eye-witnesses are real brothers of the deceased, their testimony cannot be brushed aside unless they are held to be interested and inimical witnesses which is not the position in the instant case. This discussion leads us to the conclusion that the prosecution has been successful in proving its case against Abdul Majeed, appellant beyond any shadow of doubt. However, there is mitigating circumstance in favour of the appellant and that is that the deceased few days prior to the occurrence had abused the womenfolk of the appellants and such an insult of womenfolk in this part of the country is considered to be matter of honour and prestige, so in view, the punishment of imprisonment for life would meet the ends of justice. So taking this fact to be a mitigating circumstance, though maintain the conviction of the appellant under section 302(b), P.P.C. But reduce his sentence from death to one imprisonment for life, no doubt, with the benefit of section 382-B, Cr.P.C.--In a case under section 302(b), P.P.C., no fine can be imposed, so we convert the imposition of fine to compensation and direct that if the amount of compensation to the tune of Rs.20,000 is not paid, the appellant shall undergo further S.I. For six months. The death sentence of Abdul Majeed appellant is NOT confirmed and Murder Reference to his extent is also replied in the NEGATIVE.