IJAZ AHMAD CHAUDHRY, J.----This appeal under section 417(2-A) has been directed against the judgment dated 17-11-1997 passed by the learned Additional Sessions Judge, Depalpur by which he has acquitted the respondents Muhammad Rafique etc. From the charge under section 302, P.P.C.
Notice was issued to Muhammad Rafique respondent No.2 only.
2. Briefly stated the facts of the case according to the averments made in the F.I.R. Exh.P.C. Are that on 22-10-1995 at about 4/5-00 p.m. Mukhtar Ahmad son of the complainant Falak Sher was returning from the Dhari of Abdul Sattar the brother of the complainant which was situated at a distance of one k.m. From village to its west. When he was passing by Dhari of Abdul Khaliq and Muhammad Din, the accused Muhammad Rafique armed with .12 bore gun, accused Fakhar Hayat armed with hatchet and accused Kaley Khan armed with Dang emerged there all of a sudden. The accused Kaley Khan raised a Lalkara that Mukhtar Ahmad should not go alive. Mukhtar Ahmad raised alarm and ran to the south of the village. He was intercepted by the accused Fakhar Hayat armed with hatchet. On seeing him Mukhtar Ahmad returned back towards the Dhari of Abdul Khaliq and Muhammad Din and attempted to run away. The accused Muhammad Rafique armed with .12 bore gun coming from his front side assailed upon him and made fire with his .12 bore gun landing on the front side of his abdomen. He fell down. He was shifted to the Hospital of Mandi Ahmad Abad but there no Medical Officer was available. Keeping in view his precarious condition and non-availability of the Medical Officer of the hospital Mandi Ahmad Abad he was shifted to General Hospital Lahore where he succumbed to the injuries. The occurrence was witnessed by the complainant Falak Sher and his brother Abdul Sattar not produced and Abdul Khaliq P.W.7.
3. The motive behind the occurrence was that 5/6 months ago the deceased Mukhtar Ahmad had injured the accused Muhammad Rafique over the question of "Rishta" and the matter was patched up but the accused Muhammad Rafique and his co --accused had assailed upon Mukhtar Ahmad and caused his death because of that grudge.
4. All the accused were arrested during the investigation by Muhammad Ashiq. Inspector/S.H.O.
P.W.9 on 28-10-1995. On 31-10-1995 Muhammad Rafique respondent No.2 led to the recovery of gun P.5 from his residence which was made into a sealed parcel and was taken into possession vide memo. Exh.P.D. Recoveries were also effected from the other accused.
5. Report was submitted under section 173, Cr.P.C. And on denial of the charge framed against the respondent and other accused, the prosecution produced 9 witnesses to prove the guilt of the respondent. The ocular account consists of statement of Falk Sher P.W.6 and Abdul Khalils P.W.7 while medical evidence was furnished by Dr. Rafique Rana P.W.5. The investigation had been conducted by P.W.11. The accused --respondent in his statement under section 342, Cr.P.C. Denied the allegations and to a question why the P.Ws. Have deposed against you and why this case against you replied as under:-- "The P.Ws. Given false evidence against me as they are closely related inter se and to the deceased. Abdul Khaliq and Falak Sher P.Ws. Reside in village Attari which is at a distance of one mile from the spot. They have been set up as false eye-witnesses against me. I have been falsely involved in the case due to suspicion."
The learned trial Judge has passed the impugned judgment which is being assailed through this appeal.
6. Learned counsel for the appellant has contended that both the eye-witnesses are residents of the same locality and their presence at the spot is not doubtful, who are though related with the deceased but are not interested witnesses having no enmity or grudge to falsely implicate the accused --respondents in this case. It is further contended that they are independent and natural witnesses, whose statements are corroborated through the medical evidence and the judgment of the learned trial Court to the extent of acquittal of the respondent No.2 is based on surmises and conjectures, which is liable to be set aside. It is further contended that mere non-mentioning of the name of the contractor of the minor was not sufficient to disbelieve the presence of the witnesses at the spot as labourers as it is not necessary that every labourer should know the name of the contractor. Also contended that non-collection of the blood-stained earth from the spot is also not fatal to the prosecution case and impugned judgment is liable to be set aside resulting in conviction of respondent No.2, who is the main accused and sufficient evidence is available on the record to connect him with the commission of the offence.
7. Learned counsel for the respondent No.2 has opposed this appeal on the ground that F.I.R. Was lodged with the delay of 8/9 hours without any explanation and there were other enemies of the deceased also but there was no motive for the respondent No.2 to murder the deceased. It is also contended that no blood-stained earth was collected from nearby the dead body which is sufficient to show that occurrence had not taken place at the mentioned place. It is also contended that prosecution witnesses were in contradiction with each other on material points.
8. Learned State Counsel has also opposed this appeal.
9. We have heard the learned counsel for the parties and also perused the record with due care and caution. Falak Sher P.W.6 is father of Mukhtar Ahmad deceased while Abdul Khaliq P.W.7 is his brother-in-law. Both these eye-witnesses are residents of the same locality and have explained their presence at the spot satisfactorily. They had no motive to falsely implicate respondent No.2 in the case in hand. Mere relationship with the deceased is not sufficient to declare them interested witnesses and discard their evidence which otherwise is trustworthy as they remained consistent on material points with each other. Mere non-collection of blood-stained earth from the spot cannot be held fatal to the prosecution case as the doctor has clearly stated that 1 x 2 litre of dark blood was removed from abdominal cavity and about one litre was removed from right chest cavity. One wad and four small pellets were recovered from abdominal cavity and the death had occurred due to the shock and haemorrhage caused by the above mentioned injuries and probable time between injury and death was 12 hours. In such circumstances, the injury was also found on the abdomen and medical evidence is in corroboration with the ocular account. The recovery effected from respondent No.2 was not believed as no empty was recovered from the spot but learned trial Court has omitted to take into consideration that only single shot was fired and it being not repeated, there was no possibility of the recovery of the empty from the spot. After the perusal of the statements of both the eye-witnesses, we are of the view that they were present at the spot at the time of occurrence. They have explained each and every detail of the occurrence consistently and could not be contradicted with each other on material points. They remained consistent regarding the time and place of occurrence. They also unanimously stated that blood had not fallen at the ground though the clothes of the deceased were smeared with the blood and in an injured condition he was immediately taken to the hospital. The delay in lodging the F.I.R. Is sufficiently explained as the complainant is father of the deceased who having received fire-arm injury in the abdomen was in a serious condition and the first priority of the complainant should no doubt be to get him treated medically first instead of approaching the police station for the registration of the case. Naturally he did not want to waste even a single moment to save the life of his son and due to the non-- availability of the doctor in hospital, Mandi Ahmadabad he had taken the injured to hospital at Lahore. The minor discrepancies in the statements of the two eye- witnesses are not sufficient to affect the prosecution case. In these circumstances we are not convinced with the reasons given by the learned Additional Sessions Judge for acquittal of respondent No.2 in the case in hand as there is unimpeachable evidence available on the record to connect him with the commission of the crime beyond any doubt. Hence the impugned judgment to the extent of acquittal of respondent No.2 is set aside and he is convicted under section 302(b), P.P.C. As regards quantum of sentence, we are of the view that motive remained throughout in mystery and the shot was not repeated by respondent No.2. Hence taking the same as mitigating circumstance we feel not inclined to award him capital sentence. Therefore, respondent No.2 is sentenced to imprisonment for life with a direction for payment of compensation to the legal heirs of the deceased amounting to Rs.50,000 as required under section 544-A, Cr.P.C. And in case of default in payment of compensation he shall further undergo for 6 months' S.I. Benefit of section 382-B, P.P.C. Is also given to the respondent No.2. This appeal to the extent of respondent No-.2 is accepted and he shall be sent to jail to serve out the sentence. As regards respondents Nos.3 and 4, this appeal stood already dismissed as not pressed vide order dated 16-5-2000.