MUHAMMAD FARRUKH MAHMUD, J.---Abdul Samad son of Shakir, Saghir Ahmad son of Rahim Bakhsh (appellants) along with Murid Hussain were booked for causing the murder of Hazoor Bakhsh son of Allah Rakha Vide judgment dated 31-1-2000 passed by Syed Afzaal Sharif Kazmi, Additional Sessions Judge, Khanpur, Mureed Hussain was acquitted of the charges while Abdul Samad and Saghir Ahmad appellants were convicted under sections 302(b)/34, P.P.C. And each of the appellants was sentenced to death. Feeling aggrieved they have challenged their conviction and sentence through the instant appeal. We propose to decide the appeal as well as Murder Reference No.5 of 2000 seeking confirmation of both the sentences by this single judgment.
2. Imam Bakhsh, P.W.1 brother of the deceased Hazoor Bakhsh while on his way to report the matter at Police Station met Raees Jan Muhammad, A.S.-I. (P.W.15), who was present at 'Bund River' (river embankment) Mauza Mud-Adil who recorded his statement Exh. PA at 9-00 p.m. On 27-8-1995. On the basis of this statement Rafiq Ahmad, Head Constable, P.W.14 registered F. I. R. No. 150, Exh.PA/1 at Police Station Zahir Peer on 27-8-1995 at -9-50 p.m. For offences under sections 302/34, P.P.C.
3. According to the F.I.R. The complainant lived in Mauza Ahmad Kudan. On the fateful day he along with his brothers Rasool Bakhsh and Hazoor Bakhsh (deceased) went to the agricultural land belonging to Manzoor Ahmad in order to spray the cotton crop. In the evening after doing the needful the complainant along with Hazoor Bakhsh, Rasool Bakhsh and Manzoor Ahmad son of Noor Muhammad, P.W.2 were on their way to their house travelling on the bank of water--course.
Hazoor Bakhsh deceased was slightly ahead of the other P.Ws. At about 6-30 p.m. When the complainant party reached near the cotton crop belonging to Jam Munir Ahmad Guleja, Abdul Samad appellant armed with pistol .12 bore, Saghir Ahmad armed with pistol .12 bore came out of the cotton crop. Abdul Samad appellant raised a Lalkara addressing Hazoor Bakhsh deceased that they would teach him a lesson for causing insult to them. Saghir Ahmad fired with his pistol which hit under the left arm pit of Hazoor Bakhsh. Thereafter, Abdul Samad appellant fired at Hazoor Bakhsh which hit him on the right shoulder. Hazoor Bakhsh fell in the cotton crop and became unconscious. Abdul Samad and Sabhir Ahmad accused-appellants made good their escape threatening the witnesses that in case they tried to apprehend the accused they would be fired upon. Hazoor Bakhsh who was unconscious was put on a cot and was to be taken to the hospital when he succumbed to the injuries and died on the spot.
4. The motive as set up in the F.I.R. Was that one year prior to the occurrence Abdul Samad appellant had tried to get a case registered against Hazoor Bakhsh for commission of Zina-bil- Jabr with his daughter. However, the case could not be registered and due to grievance Abdul Samad and his sister's husband Saghir Ahmad (appellants) committed the murder of Hazoor Bakhsh.
5. After recording the complaint, P.W.15 Raees Jan Muhammad, A.S.-I. Visited the scene of occurrence and collected blood-stained earth from the spot which was taken into possession vide Exh.PB and empty P.1 was also taken into possession vide memo. Exh.PC. Both the memos were attested by Elahi Bakhsh, P.W.3 and Jam Allah Nawaz who was not produced.
6. Abdul Samad appellant was arrested on 15-9-1995, he led to the recovery of .12 bore pistol, P.2 from his residential 'Kotha' on 17-9-1995 which was taken into possession vide memo. Exh.PD attested by P.W.3 Elahi Bakhsh and one Muhammad Bakhsh who was not produced during the trial.
7. Saghir Ahmad appellant was arrested on 22-1-1996. On 24-1-1996 he led to the recovery of pistol 12 bore, P.8 which contained an empty, P.9. The same was taken into possession by Raees Jan Muhammad, A.S.-I., vide memo. Exh.PJ attested by Kamal and Ghulam Nazak. During trial Jan Muhammad could not be produced as he had died. The other witnesses were also given up.
8. After completion of investigation the appellants were sent up to face trial. They denied the charge and trial commenced. During the trial the prosecution produced 15 witnesses to prove its case. Imam Bakhsh brother of the deceased and his Phuphizad Manzoor Ahmad appeared as P.Ws.1 and 2 and furnished the ocular account and also stated about the motive. Dr. Muhammad Iqbal appeared as P.W.6 and furnished the medical evidence. He also brought on the record of the case post-mortem report Exh.PE. Elahi Bakhsh appeared as P.W.3 and stated about the recoveries relating to Abdul Samad as well as spot recoveries. Ahmad Nasir Patwari appeared as P.W.12 and stated about the site plan. Raees Jan Muhammad, A.S.-I., P.W.15 stated about recording of the statement of the complainant and the investigation of the case. Rest of the witnesses were formal in nature.
9. The statements of the appellants were recorded under section 342, Cr.P.C. Abdul Samad appellant in reply to question No.5 stated that there was no other enmity between the deceased and him and that there was a dispute of civil nature between him and husband of the complainant were's sister (Sali) and for that reason he was involved in a false case. He also submitted certified copy of the civil suit which was placed on the record as Exh.D.7. Abdul Razzaq appeared in defence of Abdul Samad appellant. He stated that Abdul Samad was his maternal nephew and he was involved in a false case due to the dispute relating to the land coupled with the circumstance that Samad appellant had promised to marry his daughter with one Munir Ahmad son of Ranjah. Saghir Ahmad appellant simply denied the allegation and stated that he was involved in the case due to enmity. Both the appellants did not appear in their defence as envisaged by section 340(2), Cr.P.C.
10. The learned counsel for the appellants has argued that the case of the prosecution was not free from doubt as both the P. Ws. Were closely related to the deceased. No independent witness who resided near the place of occurrence was produced; that it was an un-witnessed occurrence and F.I.R. Was recorded after deliberations. He further argued that as far as case of Saghir Ahmad appellant is concerned no motive was attributed to him and only one empty of the cartridge was recovered from the place of occurrence which wedded from the pistol allegedly recovered from the co---accused Abdul Samad and no witness of recovery relating to Saghir Ahmad was produced during trial, therefore, his case was on much stronger footing than Abdul Samad appellant and prosecution has failed to connect him with the offence. He has also argued that in any case it was not a case of capital sentence as according to the motive Abdul Samad suspected that Hazoor Bakhsh deceased had committed Zina with his daughter. Conversely, the learned counsel for the complainant have argued that the story of the prosecution was very natural and untainted. The presence of the witnesses at the scene of occurrence was fully established and that trial Court had rightly convicted and sentenced the appellants to death. The learned A.A.-G. Has supported the conviction but when questioned about the sentence his reply was that he would say nothing about the sentence as it lied within the discretion of the Court.
11. We have heard the learned counsel for the parties at length and have gone through the entire evidence. The place of occurrence and the time of occurrence has not been challenged. It is true that Imam Bakhsh, P.W.1 and Manzoor Ahmad, P.W.2 are related to the deceased but they had no enmity, whatsoever, to involve the appellants in a false case. Both these witnesses were subjected to extremely lengthy cross---examination yet nothing material could be brought on record to show that the P.Ws. Were not present at the scene of occurrence. Manzoor Ahmad appeared as P.W.2 and he stated that on the day of occurrence the P.Ws. And the deceased had assembled for the purposes of spraying the cotton crop. Manzoor Ahmad was cross-examined by the learned counsel for the appellants on the point but his testimony could not be shaken. He answered each and every question relating to the assembly of the deceased and the P.Ws. For the purposes of spray in a very straightforward manner. Nothing is available on record to show that P.W.2 Manzoor Ahmad did not own the land or that cotton crop was not sown in the fields. In the circumstances the presence of the deceased and the P. Ws. At the time of occurrence has been proved beyond doubt. They cannot be termed as chance witnesses. The occurrence took place on 27-8-1995 at 6- 30 p.m. And sufficient day light was available at that time and, therefore, the question of identification does not arise.
12. The ocular account is fully supported by the medical evidence and in his statement Dr. Muhammad Iqbal made it clear that the deceased suffered two fire-shot injuries. The occurrence took place at about 6-30 p.m. Thereafter, the P.Ws. Arranged for a cot and wanted to take Hazoor Bakhsh to the hospital but unfortunately he succumbed to the injuries and died on the spot. The nearby residents appeared there and thereafter the complainant left the scene of occurrence for reporting the matter to the police. While on his way he met Raees Jan Muhammad, A.S.-I. At 9-00 p.m. At a place which was situated 3/4 miles away from the place of occurrence. The F.I.R. Was recorded at the Police Station Zahir Peer on the same night at 9-50 p.m. The distance between the scene of' occurrence and police station is 18 k.m. Considering all these circumstances it cannot be said that the F.I.R. Was lodged after deliberations and delay. The empty recovered from the spot was received at the Forensic Science Laboratory on 7-9-1995 while the pistol recovered from Abdul Samad appellant was received at the Laboratory on 21-9-1995. Abdul Samad appellant was arrested on 15-9-1995. According to the report of Forensic Science Laboratory Exh.PM the empty recovered from the spot wedded with the pistol recovered from the appellant Abdul Samad, therefore, the recovery of pistol has provided a very strong corroboratory evidence. However, the alleged recovery of pistol from Saghir Ahmad appellant cannot be used as incriminating evidence against him as the recovery witnesses did not appear before the, trial Court and the report of ballistic expert is relevant to the extent that the pistol recovered was to working condition.
15. The motive as set up in the F.I.R. Was fully proved during the trial. During the cross-examination of P.W.1 it was brought on record that Shahida Mai was daughter of Samad appellant with whom Hazoor Bakhsh deceased allegedly committed Zina. It was suggested to P. W.1. That at the time of allegation of Zina the age of Mst. Shahida Mai was nine years, in reply P.W.1 stated that at that time the age of Shahida Mai was only seven years. Both the appellants are related inter se. In these circumstances the joining of appellants with common intention to avenge their insult would not be unusual.
14. The upshot of the whole discussion is that the prosecution has proved its case against the appellants beyond doubt. We, therefore, maintain the convictions of the appellants under section 302(b), P.P.C. We have given our anxious and serious thought to the quantum of sentence in the circumstances of the case. The deceased was not Masoom--ul-Dam (). Abdul Samad appellant father of Mst. Shahida Mai had been trying to get a case registered against Hazoor Bakhsh deceased for commission of rape with his daughter. That means that appellant Abdul Samad and his close relative Saghir Ahmad felt very aggrieved as the matter related to their family honour.
There was no other existing enmity between the deceased and the appellants. Although the appellants have denied the motive in their statements under section 342, Cr.P.C. But we have to consider the case as a whole. The motive was set at the very inception by the prosecution and is mentioned in the F.I.R. Itself. During trial the P.Ws. Stuck to the motive and it was proved.
Considering the above mentioned circumstances we are of the opinion that mitigating circumstances exist in this case, therefore, while maintaining the conviction we alter the sentence of the appellants from death penalty to life imprisonment to each of the appellants. Each of the appellants would also pay Rs.20,000 as compensation under section 544-A, Cr.P.C. Which if recovered would be given to the legal heirs of the deceased. In default of payment of compensation the appellants would further suffer six months' S.-I. Each. Benefit of section 382-B, Cr.P.C. Is extended to the appellants.
15. With the above modifications in the sentence this appeal is dismissed. The Murder Reference is answered in the negative. Death sentence is not confirmed