' MIAN MUHAMMAD JAHANGIER, J.---By this judgment Criminal Appeal No,755 of 1999 is being disposed of which has emerged from the judgment passed by Mr. Ghulshad Hassan Alvi, Judge Special Court. Suppression of Terrorist Activities, Faisalabad Division, Faisalabad, dated 25-8-1999, whereby in a case bearing F.I.R. No,442 dated 30-8-1994, registered under sections 302, 324, 148, 149, P.P.C., with Police Station Factory Area, Faisalabad, Mushtaq Ahmad, Ishfaq Ahmad and Ikhlaq Ahmad appellants after conclusion of the trial were convicted and sentenced as under:-- ' Under section 302-B, P.P.C. Mushtaq Ahmad and Ishfaq Ahmad, appellants to death penalty and also to pay Rs,25,000 on each count to the legal heirs of each deceased under section 544-A, Cr.P.C. And in default thereof each one had to further undergo six months' S.-I. On each count.
' Under section 324, P.P.C. Mushtaq Ahmad, Ishfaq Ahmad alongwith their co-appellant Ahmad had to undergo ten years' R.I. Each for attempt to commit Qatl-i-Amd of Muhammad Amin and Muhammad Akhtar and also to pay Arsh i,e, one-third of Diyat amounting to Rs,76,666 under section 337-D, P.P.C. As per nature of injury caused to Muhammad Ameen Butt, in default whereof, each one had to suffer S.-I. Till payment of Arshad and also awarded each one of them the sentence of three years' R.I. Under section 337-F(iii) for causing Jurh Ghayr-Jaifah Madhhah and ordered to pay Rs,5,000 as Daman in equal shares by each of the convicts and in default thereof each one had to be kept in Jail as a sentence to simple imprisonment.
' However, benefit of section 382-B, Cr.P.C. Was extended to them.
' Under section 308, P.P.C. Since Ikhlaq Ahmad appellant was minor at the time of commission of occurrence, therefore. He was ordered to pay Diyat amounting to Rs,2,30,000 on each count to the legal Walies of each deceased and in default thereof he had to undergo S.-I. Till the payment of Diyat.
2. Briefly stated the facts of the prosecution case as disclosed by Muhammad Ramzan son of Ghulam Ahmad, caste Butt, resident of House No,693, Plot No,234, Samanabad (complainant) P.W.9 in his statement Exh.P.K. Recorded befc re the police at about 10-15 p.m. On 30-8-1994 in Civil Hospital at Faisalabad are that at about 9-00 p.m. He alongwith his brother Allah Rakha, Aziz ur Rehman son of Abdul Rehman (nephew) was sitting outside the house of Iqbal Butt in the electric light where the billiard games were placed and also near to their own house, meanwhile Muhammad Ameen, Wasim Ahmad alias Bau sons of Muhammad Ramzan complainant, Hafeez Ahmad son of Allah Rakha, Akhtar son of Abdul Karim also nephew of Muhammad Ramzan came there and started playing billiard games, all of a sudden from the back street Mushtaq Ahmad armed with .222 bore, Nasir Ahmad empty-handed sons of Aftab Ahmad, Ishfaq and Ikhlaq Ahmad armed with pistols sons of Mushtaq Ahmad and Aftab Ahmad son of Abdul Latif alongwith with two unknown persons came there where Aftab Ahmad, Nasir Ahmad and two unknown persons raised Lalkara to tell the taste to the Butts from restraining them to play the game and that they should not be spared today on which Mushtaq Ahmad fired first shot which hit on the left chest of Wasim Ahmad alias Bau and second fire shot hit on the wrist of left arm of Wasim Ahmad and, thereafter, Ishfaq Ahmad had fired straightaway towards Hafeez Ahmad which hit on the right thigh below abdomen, and, meanwhile, Ikhlaq Ahmad fired which hit to Muhammad Ameen towards left side of abdomen and, thereafter, Mushtaq fired another shot which hit on the left knee of Akhtar and, in the meanwhile accused persons had been raising Lalkara not to spare anybody who came near. When the injured persons had fallen, the accused persons saw them and while firing fled away from the spot. The injured persons were removed to the Civil Hospital through the assistance of the relatives but on reaching in the hospital Wasim Ahmad alias Bau and Hafeez Ahmad succumbed to their injuries, while Muhammad Ameen and Akhtar injured persons were admitted in the hospital.
' The said complainant stated that the motive behind the occurrence was that Mushtaq Ahmad accused being their Mohallandar has placed the billiard game in front of his house to whom their boys had been asking to take away the game and in this connection one day earlier there was an altercation between their boys and Mushtaq Ahmad. So because of this grudge the accused in furtherance of their common intention had assaulted on them.
3. Zafar Iqbal, S.-I. (P.W.14) was posted at Police Station Factory Area, Faisalabad on 30-8-1994.
After recording the statement of Muhammad Ramzan in Civil Hospital, Faisalabad he sent it to police station for registration of the case. He prepared the injury statement and Inquest Report Exh.P.B. And Exh.P.C. Of Wasim Ahmad deceased, Injury statement and Inquest Report Exh.P.R. And Exh.P.S. In connection with Hafeez Ahmad, deceased and dispatched the dead bodies for post- mortem examination. He recorded the statements of the prosecution witnesses including the supplementary statement of the complainant wherein the names of two unknown persons were disclosed. He prepared the Injury Statements of the injured persons as well. On 31-8-1994 he collected the blood-stained earth from the place of occurrence. The last-worn clothes of the deceased were produced before the said Investigating Officer which he had taken into his possession vide memo. Exh.P.E. And Exh.P.F. He prepared the rough sketch Exh.P.U. Himself but on 2- 9-1994 he got the site-plan Exh.P.D. Prepared by the draftsman. On 12-9-1994 he arrested Aftab Ahmad accused in this case. On 25-9-1994 he recorded the statements of Akhtar and Ameen injured persons in this case. On 11-10-1994, Mushtaq accused was arrested and on his pointation .222 bore rifle P.8 was recovered which he took into his possession vide recovery memo. Exh. P. E. He prepared the rough sketch Exh.P.L./1 of the place of recovery and recorded the statements of the witnesses in this regard. Thereafter, he arrested two other accused who were the main accused except Nasir and recovered fire-arms from them which were pistols. He had arrested four accused persons but, thereafter, he was transferred.
' Mushtaq Elahi, S.-I. P.W.5 on 30-1-1995 produced the record of this case in the Court of learned Additional Sessions Judge, Faisalabad in connection with pre-arrest bail of Farid and Tahir accused and on cancellation of bail he arrested both the accused of this case. On 2-4-1995 he arrested Mahtab accused after cancellation of his pre-arrest bail. Zafar Iqbal, S.-I. Had also prepared the challan.
4. After framing of the charge the prosecution produced 16 oral witnesses and the documentary evidence as well to prove its case based upon motives, ocular account medical evidence, recoveries and other circumstances.
5. Muhammad Ramzan complainant (P.W.9) repeated almost the contents of his complaint Exh.P.K.
As discussed above. Aziz ur Rehman (P.W.10) being an eye-witness of the prosecution furnished the ocular account, motive behind the occurrence and about recovery of .222 bore rifle P.8 at the instance of Mushtaq accused and taken into possession vide memo. Exh.P.L. In his presence and also in presence of Allah Rakha (not produced).
' Muhammad Ameen (P.W.12) and Muhammad Akhtar (P.W.13) being the injured witnesses furnished the ocular account in line with the other eye-witnesses as mentioned above.
Muhammad Ameen had also stated about the motive behind the occurrence.
' Aurangzeb draftsman P.W.2 who prepared the site plan (Exh.P.B.), Ahmad Nawaz F.C. (P.W.16) who drafted the formar F.I.R. Exh. P.K./1 the witnesses formal in nature were also produced by the prosecution.
' Shahid Mehmood, F.C. (P.W.3) who escorted the dead body of Hafeez Ahmad and produced the last-worn clothes P.1 to P.3 before the Investigating Officer, Altaf Hussain, F.C. (P.W.4) who escorted the dead body of Wasim alias Bau for post-mortem and produced his last-worn clothes consisting of P.4 and P.5 before the Investigating Officer; Ijaz Ahmad P.W. In whose presence blood-stained earth was collected from the spot and Ishfaq Ahmad accused got recovered .30 bore pistol Exh.P.6 in his presence, Tahir Rehman (P.W.7) in his presence the last-worn clothes of Hafeez Ahmad were taken into possession and Ikhlaq accused got recovered .30 bore pistol, were the witnesses on the factum of recoveries produced by the prosecution. Abdul Karim who identified the dead bodies at the time of post-mortem examination appeared as P. W .
8.
6. Dr. Masood Iqbal Bukhari, (P.W.1) conducted the post-mortem examination on the dead body of Wasim Ahmad alias Bau. His observations and the injuries found by him were as follows:-- ' The body was that of a young man of age about 25/26 years with rigor mortis and post-mortem staining present, eyes and mouti were closed. The clothes were Shalwar and Bunian of white colour and bloodstained which were signed by him.
' On removing the clothes the following injuries were noted:--
(1) A fire-arm wound of entry 1/2 c.m. x 1/2 c.m. x cavity deep (chest cavity) with inverted margins on left side of chest 3 c.m. On let side from left nipple and 9 c.m. Oblique downward and inward from left interior axillary fold. On dissection the projectile after entering through skin and muscles passed through 4th intercostals on left side chest and entered into upper lobe of left lung and damaged that, then took its way to the left ventricle of the heart and shattered it badly then the projectile entered into lower lobe of right lung and damaged it and finally approached and was seated on posterior surface of right side chest lower part in the muscles of the back of right side chest after causing fracture of .9th rib on posterior side and a foreign metallic body (bullet) was recovered from there.
(2) A fire-arm wound of grazing 5 c.m. x 3 c.m. x bone deep on 'inner and lower side of left fire-arm 3 c.m. Above the left wrist. On dissection the lower end of left side of ulna bone was fractured.
' SKULL: That was not opened.
' THORAX: All the organs were found to be injured as mentioned under Injury No,1 other than larynx and trachea.
' ABDOMEN: All the organs were found to be healthy, The stomach was full of semi-solid undigested food material and urinary bladder contained about 3 and 4 ounces of urine.
' In the opinion of the doctor, in this case, the cause of death was haemorrhage and shock due to injuries Nos.1 and 2 collectively and Injury No,1 individually. Both the injuries were caused by fire-arm and grievous in nature and ante-mortem. Injury No,1 which was caused by fire-arm was individually sufficient to cause death in the ordinary course of nature.
' The probable time that elapsed between injuries and death was a few minutes while between death and post-mortem examination was about 15-1/2 hours.
' He stated that after completion of the post-mortem examination the dead body alongwith police papers and last-worn clothes of deceased as well as the sealed bottle containing bullet was handed over to police. He also delivered carbon copy of post-mortem examination report Exh.P.A.
To police alongwith sketch of injuries Exh.P.A./1. Before postmortem examination the abovesaid doctor examined the Injury statement Exh.P.B., Inquest RepOn Exh.P.C. And signed them.
7. Dr. Qaisar Abbas (P.W.11) medically examined Hafeez Ahmad on 30-8-1994. His observations and the injuries found by him-were as under:--
(1) A fire-arm wound of entry with inverted margins 2 c.m. x 1-1/4 c.m. x DNP on front of right inguinal region. Bleeding profusely corresponding hole was present on Shalwar.
' Note.---Patient was received in very serious condition cold clammy under shock and was gasping.
' Injury No,1, was dangerous to life, the duration of injury was fresh and the weapon used was fire- arm. The patient was brought by Khalid Parvez son of Muhammad Ramzan cousin of patient.
Exh.P.M. Was the correct carbon copy of his MLR, the sketch of Injury Exh.P.M./1 was in his handwriting and signed by him.
' On the same day the said doctor also medically examined Amin Butt son of Muhammad Ramzan aged 32 years' resident of House No,693 Block No,23, Sammanabad Police Station Factory Area, Faisalabad. He was brought by Khalid Parvez son of Muhammad Ramzan brother of patient. He observed the following injury on his person:-
(1) A fire-arm wound of entry with inverted margins in front of left abdomen 1 c.m. x 1 c.m. Size with a fire-arm wound of exit 1 c.m. x 1 c.m. On outer side of right abdomen.
' Note.---Patient was bleeding profusely BP was low, pulse was repid and feeble, under shock and condition was serious.
' Injury No, 2 falls under Jaifah. Duration of the injury was fresh and weapon used was fire-arm.
Exh.P.N. With sketch of injury Exh.P.N./1 was correct carbon copy of the MLD which bore his signatures.
' On the same day at 9-45 p.m. The abovesaid doctor also medically examined Muhammad Akhtar son of Abdul Karim, aged 17 years, resident of H/No,694, Block No,23, Sammanabad Police Station Factory Area, Faisalabad. He was also brought by Khalid Pervaiz son of Muhammad Ramzan cousin of the injured. He observed the following injuries on his person:--
(1) A fire-arm wound of entry with inverted margins 1 c.m. x half c.m. On back of left-knee joint with a fire-arm wound of exit 2-1/4 c.m. On outer side front of left-knee joint. Injury No,1 was kept under observation and patient was referred to Surgical Unit-I for management.
' Duration of injury was fresh on arrival and weapon used was fire-arm. Exh.P.O. Was correct carbon copy of MLR and Exh.PO/1 was the sketch of injuries Which were in the hand of the doctor and signed by him.
' On 31-8-1994 on police application Exh.P.Q. To issue MLR of injured P.W. Akhtar he gave his note that Exh.PQ/1 that- MLR was already issued.
' During cross-examination he deposed that on 30-8-1994 he had medically examined Mushtaq son of Aftab aged 40 years, caste Sheikh, resident of Gate No,2, Muhallah Sammanabad, Faisalabad who arrived at hospital at 10-20 p.m. And was medically examined at the same time.
His observations and the injuries found by him were as follows:--
(1) A lacerated circular wound 2 c.m. x 2 c.m.. On front and inner side of right leg with blackening present.
' There was a corresponding hole on Shalwar. There was a small wound 1/4 c.m. x 1/4 c.m. On back and outer side of right leg middle part.
' Note.---The patient was profusely bleeding from wound.
' Injury No,1 was kept under observation, X-ray was advised and patient was referred to Surgical Unit-1 for management and expert opinion. Duration of injury, was fresh on arrival and weapon was firearm. He further stated that on 24-9-1994 on the application of Muhammad Hanif son of Chiragh Din cousin of the injured he gave a note on the same Medico-legal Report that according to him, patient was in lock-up, again X-rays and surgical opinion was advised about the injury. Medico- legal Certificate was received by Muhammad Hanif on 24-9-1994. His aforestated note was Exh.DB/1 on Exh.D.B. He denied the suggestion that he recorded that no corresponding hole was on Shalwar of accused Mushtaq dishonestly to favor the accused party. He further denied the suggestion that he recorded the non-presence of corresponding hole on the Shalwar of accused Mushtaq to favor the opponent party. He does not know how long Akhtar and Amin injured P.Ws.
Remained admitted in the hospital. No application was moved before him to the statement of injured P.Ws.
' On permission granted by the learned trial Court this witness was re-examined by the learned D.D.A. His statement on re-examination in verbatim was as under:-- "Circular wound may be caused by a fire-arm. A circular wound may be caused by a pointed edged weapon. Entry wound had that's exit."
8. Dr. Muhammad Akhtar Pervaiz S.M.O. (P.W.15), had conducted the post-mortem examination on the dead body of Hafeez Ahmad. His observations and the injuries found by him were as under:-- ' EXTERNAL APPEARANCE: There was no sign of ligature on his neck. The dead body was that of well built male aged about 25 years, eyes and mouth were semi-open, post-mortem staining was present on back, rigor mortis was present, he was wearing light blue Shalwar Qameez and white vest, all the clothes were blood-stained, corresponding hole was present on Shalwar to Injury No, 1 .
SCALP, SKULL AND VERTIBRAE: No abnormality was detected membrain and brain were healthy.
' Spinal cord not opened.
' Injury No,1: A fire-arm wound of entry with inverted margins 2 c.m. x 1-1/4 c.m. On front of abdomen in right inguinal region 6 c.m. Away from base of penis and 7 c.m. Away from right superior iliacrest.
On dissection it was found that projectile had damaged the skin, subcutaneous tissues, muscles and femoral vessles through and through. The bullet was found impacted in the muscles just below the.Right hip joint.
' THORAX: Walls, ribs and cartilages healthy, plureas were healthy, larynx and trachea were healthy, hyoid bone was intact, both lungs were healthy, right side of heart was full of blood and left side empty, blood vessels damaged as stated in Injury No,l. Abdomen, walls as stated in Injury No,1, paritoneium was healthy and intact, mouth pharynx and eoesophagus were healthy, diaphram was healthy, stomach was full of semi-solid, white coloured material, pancreas was healthy, small and large intestines were healthy and empty, liver spleen and both kidneys were healthy, there was about 2 ounces of urine in the bladder, organs of generations were healthy.
' MUSCLES: muscles were damaged as stated in Injury No,1, there was no bony injury.
' REMARKS: In the opinion of the doctor the cause of death was haemorrhage and shock due to Injury No,1, this injury was sufficient to cause death in the ordinary course of nature. This injury was ante-mortem in nature and caused by fire-arm weapon. The probable time between injury and death was about 45 minutes and between the death and post-mortem was 14 and a half hours.
' While closing the prosecution case death certificate of Hafeez Ahmad Butt. Exh.P.K., Report of Chemical Examiner about bloodstained earth Exh.P.Y. And report of Serologist Exh.P.Z. Were produced as documentary evidence.
9. Arshad Ahmed Anjum, Record Keeper, D.H.Q. Hospital, Faisalabad, was also produced as a witness who brought the Register of M.L.R. No,2704 dated 30-8-1994 of D.H.Q. Hospital pertaining to medical examination of Mushtaq son of Aftab, resident of Sammanabad, Faisalabad (accused).
10. While making the statements under section 342, Cr.P.C. The accused persons denied the allegation as levelled by the prosecution and professed about their innocence. However, Mushtaq appellant submitted his reply on the question that as to why this case was registered against him which was as under:- "I had placed a billiard table out of my house about a month before the occurrence and the boys of the Muhallah started playing at the table after paying nominal charges. Waseem Ahmad alias Bau used to smoke heroin and was of a desperate character, he used to collect Jagga Tax from the shopkeepers, Rehri Wala arid owners of the billiard game in the Muhallah. As could not afford to pay Jagga Tax Rs,100 daily, said Waseem Ahmed threatened me with the dire consequences. On the day of occurrence I and my father Aftab Ahmad were going to Bazar at about 8 p.m. When I reached near the house/shop of Iqbal Butt, Waseem Ahmad raised Lalkara that he would teach me a lesson for not removing billiard table from outside of my house. In the meanwhile Hafeez Ahmad, Muhammad Amin and Akhtar also came out of the shop of Muhammad Iqbal, raising Lalkara at which Waseem Ahmed fired with his pistol at me which hit me at my right leg and I fell down. On seeing me in injured condition Aftab Ahmad started firing with his revolver in self-defence. I remained admitted in Iqbal Ward, Civil Hospital for about 15 days. 1 have been involved in this case without any lawful justification alongwith my late father. Out of the remaining accused Ashfaq Ahmed and Ikhlaq Ahmed are my sons, Mahtab Nasir is my real brother whereas, Farid and Muhammad Tahir are the sons of my brother-in-law. The complainant party had falsely involved all the able bodied members of my family in this case. The P.Ws. Have deposed against me falsely because they are closely related inter se and all of them are also related to the deceased and injured P.Ws."
' Ashfaq Ahmad appellant stated that he was falsely involved in this case due to his relationship with Mushtaq (appellant) and Aftab co-accused and that the witnesses have deposed against him due to their relationship with the deceased and the injured persons. While Ikhlaq Ahmed stated that he was falsely implicated in this case due to his relationship with Mushtaq and Aftab and that he was aged about 13/14 years at the time of occurrence and he came to know about the occurrence when he was involved in this case and that the witnesses deposed against him due to their relationship with the deceased and the injured persons.
Mushtaq Ahmed (appellant) got recorded his statement on Oath. Mehmood son of Badar Din, resident of Mohallah Samanabad, Faisalabad: D.W.1 (Mohalladar), Muhammad Iqbal son of Mehmood Alam of the said residence (D.W.2), Muhammad Hanif son of Bandu Khan (D.W.3) resident of H/No,45, Swami Nagar, G.T. Road, Lahore, Sheikh Muhammad Zafar (D.W.4), resident of Swami Nagar Road, 45 G.T. Road, Lahore, Muhammad Arshad son of Rashid Ahmed (D.W.5) resident of H/No,1392, Bazar Wachu Wali, Shoe Market, Shah Alam, Lahore, Muhammad Jameel son of Muhammad Ikram, resident of H/No,1376-D, Bazar Wachu Wali, Rang Mahal, Lahore, D.W.6 Abdul Lateef, Inspector FIA, Faisalabad (D.W.7); and Mushtaq Ilahi S.-I., Police Station Jhang Bazar, Faisalabad (D.W.8) appeared in defence of the appellants and other accused persons.
11. While concluding the trial the appellants as mentioned above were found guilty on the basis of finding that the prosecution had established its case to their extent, therefore, they were convicted and sentenced as mentioned above.
12. We have heard the learned counsel for the parties and have also gone through the record placed before us.
13. Learned counsel for the appellants argued that the learned trial Court failed to appreciate that the prosecution could not establish its case beyond any shadow of doubt; that actually the prosecution evidence was inconsistent and. Defective which in no case proved the prosecution case, even otherwise all the private witnesses in this case were related to the complainant party, therefore, their statements on question of motive, and ocular account were not confidence- inspiring and unreliable; that the F.I.R. In this case was lodged after consultation and some preliminary investigation resulting into improved version of the prosecution was brought forward; and that the evidence of the recoveries of the crime weapons shown against the appellants was in violation of section 103, Cr.P.C. And neither any crime empty was recovered nor forwarded to Forensic Science Laboratory, therefore, this piece of evidence was also not trustworthy. He further argued that the medical evidence did not corroborate the ocular account and also the incident connected with the alleged motive a day prior to the occurrence; that the ocular account furnished by the eye-witnesses was lacking with independent corroboration. He argued that the learned trial Court illegally presumed that the motive behind the occurrence was proved. He further submitted that the illegality and infirmities in the prosecution case based upon dis-honest investigation was not reliable in any case but the learned trial Court presumed it to be established whereas ,it has discarded the sound defence version advanced by Mushtaq appellant and if both the versions are examined at juxtaposition it would reflect that the complainant party was aggressor in the affair and being so the maximum penalty could not be awarded and last of all, the learned counsel submitted that if at all the prosecution case is presumed to be established then there are mitigating circumstances to take lenient view in case of sentence of death passed against Mushtaq Ahmad and Ishfaq Ahmad appellants.
14. On the other hand the learned State Counsel submitted that the prosecution case is based upon motive, ocular account, medical evidence, recoveries and that the evidence in connection with all these aspects, is quite convincing due to which the learned trial Court rightly observed that the prosecution has succeeded to prove the guilty of Mushtaq Ahmad, Isaac], Ahmad and Ikhlaq Ahmad the accused for committing the Qatl-i-Amd of Waseem Ahmad and Hafeez Ahmad as well as for having murderous assault on Muhammad Ameen and Muhammad Akhtar.
15. It would appear from the evidence on the record that there is no serious dispute about time of occurrence and the time of recording the formal F.I.R. At the Police Station Block No,23 of Samanabad (the place of occurrence) was at distance of 2-1/2 kilometres from the Police Station Factory Area. Apparently it appears that the statement of Muhammad Ramzan (Exh.P.K.) was recorded at 10-15 p.m. On the same night i,e, 30-8-1994 in Civil Hospital. Muhammad Ramzan (P.W.9) made the statement at trial that he went to the police, but the police did not meet him at Police Post and, thereafter, he went to Madni Chowk where the police met him and he informed about the occurrence and then the police went to the place of occurrence without recording his statement and then they went to hospital after the incident where the police recorded his statement. Even in cross-examination he repeated that Thanedar soon after hearing the story of occurrence from him proceeded to the spot. But so far Zafar lqbal, S.-I. (P.W.14) is concerned he denied the suggestion that Ramzan complainant came to him at Madni Chowk and informed him about the occurrence and his version was that some one had informed him about the occurrence in Madni Chowk wherefrom he went to the hospital.
' The point for examination is as to what could be the impact of this discrepancy. In our opinion this discrepancy is not material which could force to believe that the F.I.R. Was lodged after some preliminary investigation. In fact formal F.I.R. Exh.P.K./1 was prompt because after recording the statement in the hospital at 10-15 p.m. The period of half an hour could be consumed in reaching at the police station and for recording the same.
16. Consequently we see that the ocular account was furnished by four witnesses out of whom two were injured witnesses. They were the residents of the same locality, therefore, there is nothing on the record to believe that Muhammad Ramzan (P.W.9) and Aziz-ur-Rehman (P.W.10) were not present at the spot and Muhammad Ameen and Muhammad Akhtar are injured witnesses. If the ocular account furnished by all these witnesses is examined minutely, it would appear that their statements were quite consistent on all material aspects of the case. It was further corroborated by the medical evidence. The availability of electric light is shown at the spot, the parties were known to each other but any independent witness including Iqbal the owner of the shop at the spot appears to be not available at the time of occurrence.
17. So far as the defence version, if any, is concerned, it has been discussed in detail from all angles by the learned trial Court, however, it may be mentioned here that the injury sustained by Mushtaq Ahmad appellant came on the record through the statement of Dr. Qaiser Abbas (P.W.11). The statement of Dr. Qaisar Abbas (P.W.11) made it clear that there was circular wound on right leg with blackening but there was no corresponding hole on Shalwar. He was cross-examined and suggested about corresponding hole but he denied the suggestion that no corresponding hole was present on the Shalwar of Mushtaq, dishonestly to favor the accused party. In view of this suggestion one is forced to believe that the version of Mushtaq appellant was that there was a corresponding hole on the Shalwar but when he came in the witness-box to make statement on oath, he stated in cross-examination that at the time of sustaining the fire shot injury he was wearing the Shalwar but he had rolled up his Shalwar above his knees.
' It is obvious that due to the said reply in cross-examination the .Version of Mushtaq appellant was that there was no corresponding hole on his Shalwar. The question worth examination is as to what is the output of this material contradiction in the stand of the appellant taken while cross- examining the Medical Officer as mentioned above and in his statement on Oath, he was suggested that his injury was self-suffered to concoct the story. In view of above circumstances this suggestion put to him carries much force, therefore, the obvious result of this contradiction is that the injury sustained by him was self-suffered, meaning thereby, there is no force in the defence version that the complainant party could be aggressor at the spot and it was rightly observed by the learned trial Court that the prosecution had established its case.
18. The point for examination is as to whether there is any circumstance on the record to take any lenient view in case of sentence of death. In this connection, we see that the motive itself either given by Muhammad Ramzan (P.W.9) in his statement Exh.P.K. Or explained in the statements at trial, is sufficient to take lenient view. It is stated in the statement Exh.P.K. That Mushtaq. Ahmad appellant being resident of the same Mohallah had placed the billiard game, in front of his house, and the boys from the complainant's side had asked him to remove the same. The prosecution witnesses were cross-examined at length in this connection, even Muhammad Ameen (P.W.12) an injured witness stated that the bone of contentions was to restrain the accused from running the billiard game. It would appear that the prosecution witnesses could not justify as to why the Mushtaq appellant could be forced to remove the billiard game. There is no need to discuss the conduct and attitude of Waseem deceased which came on the record but one thing in proved that while asking Mushtaq appellant to replace the billiard game the members of the complainant party had taken the law into their own hands. If there was any inconvenience in placing of the billiard game by Mushtaq appellant, the proper course was that the complainant party should have approached the local police. Therefore, the motive itself is a circumstance to take a lenient view in case of sentence. But at the same moment we feel that the amount of Rs,25,000 in case of each appellant to pay as compensation to the legal heirs of the deceased is insufficient which should be enhanced.
19. In view of the discussion above, the conviction passed by the learned trial Court vide judgment dated 25-8-1999 is maintained but the sentence of death in case of Mushtaq Ahmad and Ishfaq Ahmad appellants is. Reduced to imprisonment for life, however, the amount of Rs,25,000 as compensation under section 544-A, Cr.P.C. Is enhanced to Rs,100,000 (Rupees one lac) each on each count to be paid to the legal heirs of each deceased.
' While all other sentences including the sentence of Ikhlaq Ahmad appellant are also maintained.
Appeal is disposed of accordingly.
' Death sentence awarded to Mushtaq Ahmad and Ishfaq Ahmad appellants is not confirmed.