' KHAWAJA MUHAMMAD SHARIF, J.---This appeal is directed against the judgment of Additional Sessions Judge-I, Mianwali dated 9-12-1998 whereby Imtiaz Khan and Sami Ullah Khan accused were convicted under section 302(b), P.P.C. And sentenced to death and a compensation of Rs,50,000 each which were to be given to the legal heirs of Gulistan Khan and Ajab Khan deceased under section 544-A, Cr.P.C., whereas Ahmed Khan appellant was also convicted under sections 302(b)/34, P.P.C. And sentenced to undergo life imprisonment with a fine of Rs,50,000 and in case of default the three appellants were ordered to further undergo. R.I. For six months. Ahmed Khan appellant was also given the benefit of section 382-B, Cr.P..C.
2. The facts briefly for the disposal of this appeal are that in the area of Village Mochh, District Mianwali a volley-ball match was being played on 17-12-1993 near the Shrine of Dada Sher Muhammad, in which both the deceased were also playing. During this time Ahmed Khan armed with a knife, Imtiaz Khan armed with pistol .12 bore and Sami Ullah Khan also armed with pistol .12 bore came there. Ahmed Khan shouted that Ajab Khan and Gulistan Khan would not be spared.
Ahmed Khan tried to inflict knife blow to Gulistan Khan but he escaped. Thereafter, Imtiaz Khan fired at Gulistan with .12 bore pistol which hit on his right buttock and he fell down on the ground.
Samiullah also fired with his .12 bore pistol at Ajab Khan which hit him on his neck and chin and he also. Fell down on the ground. Thereafter the accused fled away from the spot. Both the injured were removed to Police Station Mochh but Ajab Khan died in the way. The occurrence was witnessed by Abdul Sattar Khan Complainant besides Saifullah Khan and Taj Muhammad Khan.
After recording the F.I.R. Exh.P.N. Gulistan Khan was brought to P.I.M.S. Hospital Islamabad, where he died. The aforesaid F.I.R. Was recorded by Sultan Ahmed S.-I. On the same day at 4-30 p.m. The police after necessary formalities challaned the three accused. The charge was framed under section 302/34, P.P.C. To which the accused pleaded not guilty and claimed to be tried.
3. The motive behind this occurrence was that two days before the incident Ajab Khan and Gulistan abused the accused appellants and used insulting language. To take the revenge this incident took place in which two persons lost their lives.
' The prosecution examined Ikramullah (P.W.1), Javed Iqbal (P.W.2) Hidayatullah (P.W.3), Munawar Hussain (P.W.4), Gul Jahan (P.W.5), Akhtar Khan(P.W.6), Muhammad Khan Patwari (P.W.7) and Dr. Mehr Khan, M.O. DHQ, Hospital Mianwali who appeared as (P.W.8) and conducted post-mortem examination on the dead body of Ajab Khan and found the following two injuries on his person;
(1) A fire-arm wound destroying a tip of the chin (bone plus muscular) measuring 5 x 4 c.m. With margin of the wound black and burnt. It was 3 c.m. Below the lower lip.
(2) Multiple small size entry wounds measuring 1/4 x 1/4 c.m. To 1/3 x 1/3 c.m. With two big entry wound 1 x 1 c.m. And 2 x 3 c.m. x 1 c.m. With blackening around and between these wounds over the front of the neck in the area of 6 x 5 c.m.
' Fourth rib was fractured and rest of the organs were normal and healthy. Left lung was also punctured. Numerous very small sized pellets were found in the tissues of the left lung. Many of them were recovered and sealed into a parcel which was signed by the doctor. In the opinion of the doctor death was due to shock and haemorrhage due to Injury No,2 which was sufficient to cause death in the ordinary course of nature. Time between injuries and death was immediate and between death and post-mortem was 13 to 18 hours.
' This witness also medically examined Gulistan Khan deceased and his observations were as under:
(1) an entry wound of fire-arm 4 x 3-1/2 c.m. Just above the right iliace crest on back, 0 c.m. From the vertebral column with an area of blackening surrounding the entry.
' The injury was kept under observation and was the result of a fire-arm. In the opinion of the doctor the cause of death was haemorrhage which was the result of the injury which was sufficient to cause death in the ordinary course of nature.
' Similarly Khalid Mehmood (P.W.9) supported the prosecution version. He was also relative of the deceased Gulistan Khan and identified his dead body.
' Muhammad Iqbal (P.W.10) appeared in support of prosecution case and stated that he was posted at Police Station Mochh as Constable and being so he received two sealed parcels of blood-stained earth which he retained in the Malkhana.
' Ghulam Qasim (P.W.11), also deposed in favor of the prosecution stated that blood-stained earth was collected in his presence and the same was taken into possession vide recovery memo Exh.
P.L. Which was also attested by him.
' Abdus Sattar (P.W.12) also appeared to support the prosecution case because he was the complainant of this case had seen the occurrence minutely. He reiterated his stance taken in the F.I.R.
' Saifullah Khan (P.W.13) was also another eye-witness. He was the uncle of Gulistan Khan deceased and he was also seeing the match alongwith complainant and Taj Muhammad eye-witnesses. He supported all the facts and circumstances narrated by the complainant in the F.I.R.
' Similarly P.W.14 Sultan Ahmed S.-I. Who recorded the formal F.I.R. Appeared as prosecution witness and he also corroborated the statement of the complainant in detail.
' Dr. Nusrat Ali P.W.15, who was posted as Medical Officer at P.I.M.S. Hospital, Islamabad supported the prosecution case as he had issued the death certificate of Gulistan Khan deceased Exh.P.X.
4. After tendering in evidence the reports of the Chemical Examiner Exh.P.Y. And Exh.P.Z. And that of Serologist Exh.P.AA and Exh.P.BB, the learned ADA closed the prosecution case.
5. The statements of the accused were then recorded under section 342, Cr.P.C. They pleaded not guilty and denied the recoveries of their respective weapons which were actually made from their residential houses. They attributed the case to enmity. They did not make their statements under section 340(2), Cr.P.C, except Samiullah who opted to give evidence in defence.
6. The accused/appellants produced Abdul Qadir D. W.1 in defence, who had recorded the statements of Islam Ullah QureshiMutwalli of the shrine of Dada Sher Muhammad, Ramzan and other persons as he was posted as DSP as the time of occurrence and during investigation he concluded that both the deceased alongwith Muhammad Bashir came to volley-ball ground where accused/appellants were also present. There was a dispute regarding pigeon between Samiullah and Bashir. He also came to conclusion that Imtiaz accused was empty-handed.
Samiullah also tendered in evidence copy of his school leaving certificate Exh.DA and Exh.DB and a certificate from Secretary Union Council Mochh Exh.DC that his birth entry was not available in the record of the Union Council and closed his defence- evidence. The trial thus concluded and the appellants were convicted and sentenced as mentioned above. Hence this appeal.
7. Learned counsel for three of the appellants submits that as far as Ahmed Khan is concerned he was armed with a knife but he did not cause any injury to any person. As far as Samiullah is concerned, according, to his school leaving certificate his date of birth is 2-6-1977 while occurrence took place on 17-12-1993, so at the time of occurrence he was 16/17 years to age and death sentence cannot be awarded to him. As far as Imtiaz is concerned he was found to be present at the place of occurrence but he was empty handed. He further submits that on the dead bodies of Gulistan Khan and Ajab Khan there was blackening around the wounds moreover there is no report from Forensic Science Laboratory in this regard and possibility cannot 'be ruled out that the occurrence had not taken place in the manner as mentioned above. No recovery was made from Imtiaz Khan appellant. Recovery from Ahmed Khan has been disbelieved by the learned trial Court and immediate cause of murder is not known, therefore, there is a mitigating circumstances in favor of Imtiaz Khan and he is entitled to lesser sentence.
' On the other hand learned State counsel submits that it was a broad daylight murder and there was no previous enmity between the parties, therefore, question of faise implication does not arise.
8. We have heard learned counsel for the parties and have gone through the record. Occurrence took place at 4-00 p.m. And the matter was reported at 4-30 p.m. F.I.R. Was promptly lodged. There was no question of mistaken identity because the parties were well known to each other, therefore, there is no question of false implication or substitution. Abdus Sattar and Saifullah eye-witnesses were produced by the prosecution whose statements are fully corroborated, by the medical evidence. As far as Ahmed Khan is concerned, according to F.I.R. He was armed with knife. He tried to give injury on the person of Ajab Khan but he could not inflict the same. While granting him benefit of doubt his sentence is set aside. He shall be released forthwith if not required in any other case. As far as the other two appellants Imtiaz Khan and Samiullah are concerned we are of the opinion that they were armed with lethal weapon with which they caused injuries to the deceased so we maintain their conviction but there is mitigating circumstances in favor of Samiullah.
According to school leaving certificate his date of birth is 6-2-1977 and occurrence took place on 17-9-1993, so at the time of occurrence Samiullah was 16/17 years of age. So we convert his sentence from section 302, P.P.C. To section 308, P.P.C., death sentence awarded to him is set aside.
Murder reference to his extent is replied in the negative. His is awarded 14 years R.I. With further direction to pay Diyat amount to the legal heirs of Ajab Khan. As far as Imtiaz Khan is concerned there is no mitigating circumstance. Specific injury has been attributed by him. His death sentence is confirmed. Murder reference is replied in the affirmative to, his extent. As far as benefit of section 382-B, Cr.P.C. Is concerned, Samiullah is also awarded the same.
' Murder Reference and Criminal Appeal are disposed of.