1. BASHIR A. MUJAHID, J.---Said Amir and Alamghir sons of Ghulam Muhammad have challenged judgment dated 17-3-1999 passed by the learned Additional Sessions Judge/Judge, Special Court S.T.A., Mianwali whereby they were convicted under section 302(b), P.P.C. For commission of murder of Amir Sultan, and Said Amir was sentenced to death while Alamghir to imprisonment for life. Both the appellants were also ordered to pay compensation of Rs.20,000 each under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. Was, however, extended to Alamghir appellant. Through the same judgment Abdul Majid was acquitted of the charge.
2. The brief facts of the prosecution case are that F.I.R. No.51 Exh.P.E. Was registered at Police Station Piplan, District Mianwali at 5-55 p.m. On 6-4-1997 at the instance of Muhammad Iqbal, P.W.7 about the occurrence which took place on the same day at 5 p.m. In the area of village Jhal Shamali at a distance of 4 Kms. From the police station. According to the complainant, he alongwith Muhammad Ibrahini son of Muhammad Aziz, Muhammad Eesab son of Ghulam Muhammad and his paternal uncle Amir Sultan son of Ghulam Muhammad were going on foot towards their house along the railway line from Piplan. Amir Sultan .Was few paces ahead of the complainant and the prosecution witnesses when at about 5 p.m. They reached near the house of Abdul Majid accused, resident of Jhal Shamah, Said Amir while armed with pistol .30 bore, Alamghir empty-handed emerged out of the house of Abdul Majid, husband of their sister. Alamghir raised Lalkara to Amir Sultan that they had come to teach lesson for indulging molestation. Said Amir fired from his pistol .30 bore at Amir Sultan hitting in front of his chest, who fell down and the accused fled-away from the spot. Amir Sultan succumbed to the injuries at the spot. The motive for the occurrence was that the accused had a suspicion about Amir Sultan for having illicit relations with daughter of Muhammad Amir, brother of the appellants.
3. Rizwan Manzoor Cheema, S.-I., P.W.11 after registration of the case arrived at the spot and prepared the injury statement of the dead body of Amir Sultan through memo. Exh.P.B. And inquest report through memo. Exh.P.C., and despatched the dead body for post-mortem examination through Muhammad Ashraf, F.C. He also collected blood-stained earth from the place of occurrence through memo. Exh.P.G. On 7-4-1997, Muhammad Ashraf, F.C. Produced the last-worn clothes of the deceased before him which were taken into possession through memo. Exh.P.J. Which was attested by Muhammad Ashraf, F.C. On 22-5-1997, he arrested Said Amir and Alamghir accused. On 30-5- 1997 Said Amir while in police custody led to the recovery of pistol P.1 and 5 live cartridges P.2/1-5 which were taken into possession by the Investigating Officer through memo. Exh.P.F. He declared Abdul Majid innocent by placing him in Column No.2 of the report under section 173, Cr.P.C. He completed the investigation and submitted the challan before the Court.
4. The trial Court framed the charge which was denied by the accused and they claimed trial.
5. During the trial the prosecution examined as many as 12 witnesses to prove the guilty of the accused.
6. The medical evidence was furnished by Dr. Maqbool Mubarak, P. W.1, who on 7-4-1997 at 2-30 p.m.
7. Conducted the post--mortem examination on the dead body of Amir Sultan and found the following injuries:-- (1)A fire-arm wound of entry 1 x 1 c.m. On the front of right chest, 1 c.m. From midline and 8 c.m.
8. Medial to right nipple.
9. (2)A fire-arm wound of exit 1-1/2 x 1 c.m. On the back of right chest, just below the scapula bone and 13 c.m. From the mid line.
10. The ocular account was furnished by Muhammad Iqbal, P.W.7 who was complainant of the case.
11. He supported the version of the F.I.R. And narrated the motive of the occurrence. Muhammad Eesab was examined as P.W.8. He supported the prosecution story as an eye-witness of the occurrence.
12. His statement is in line with that of Muhammad Iqbal, complainant. According to him, he was accompanying the deceased and the complainant when the accused launched attack and Said Amir caused fatal injury to the deceased. Noor Muhammad, A.S.-I. RW.2 was posted as Moharrir/H.C. At Police Station Piplan when he received sealed parcel of blood-stained earth and kept the same in Police Maalkhana. On 13-4-1997, he handed over the same to Muhammad Jamil, P.W.3 for deposit in the office of Chemical Examiner, Lahore. Muhammad Jamil, P. W.3 as mentioned above had deposited the sealed parcel containing blood--stained earth in the Office of Chemical Examiner on 13-4-1997. Muhammad Saleem, F.C. P.W.4 had delivered the sealed parcel at the Office of Forensic Science Laboratory on 18-7-1997 after receiving the same from Noor Muhammad Moharrir/H.C. Qamar Abbas Shah, Patwari, P. W.5 had prepared the site plan of the place of occurrence. Ghulam Ahmad, P.W.6 had identified the dead body of his sort Amir Sultan at the time of post mortem examination. Mulazim Hussain, P.W.9 has stated that on 6-4-1997, Muhammad Akram, P.W. And Ghulam Muhammad father of Amir Sultan deceased had approached him and asked to clarify the suspicion of relationship of Amir Sultan with daughter of Amir, brother of Alamghir accused and on the same day Mulazim Hussain alongwith Muhammad Akram, P. W.
13. Approached Abdul Majid and furnished the explanation about the innocence of Amir Sultan.
14. Muhammad Amir, P. W.10 had attested the recovery memo. Exh.P.G. Whereby blood-stained earth was taken into possession from the spot by the Investigating Officer. Muhammad Ashraf, F.C. P.W.12 had produced the last-worn clothes of the deceased before the Investigating Officer which were taken into possession through memo. Exh.P.J. And he also attested this memo.
15. The prosecution evidence was closed by tendering in evidence reports of Chemical Examiner Exh.P.K. And that of Serologist Exh.P.L. As well as of Forensic Science Laboratory Exh.P.N.
16. The statements of the accused were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. Said Amir in reply to question No. 7 as to why the case against him and the P. Ws. Deposed against him, stated as under:-- "The witnesses are closely related to the deceased and are inimical to me. This case has been managed by Muhammad Afzal, A.S.-I., who is a close relative of the deceased, against me. The witnesses were not present at the spot and were summoned by Muhammad Afxal, A.S.-I. Who was having close relations with police of Police Station Piplam The murder of Amir Sultan was seen by hundreds of people, who were present near the spot and were watching the Volley ball match, but none from them is cited as a witness. "
17. While Alamghir accused to the same question adopted the same answer as was given by Said Amir.
18. The trial culminated into conviction of the appellant as mentioned above. Hence this appeal.
19. Learned counsel for the appellants has argued that it was an unwitnessed occurrence, admittedly, took place in front of house of the accused party and there was no occasion for the deceased and the prosecution witnesses to be present there at that particular time as there was no road; that only single fire shot was made by Said Amir, he had not repeated the shot, therefore, it is not a case of capital punishment; that the prosecution witnesses are closely related inter se and to the deceased and their testimony has not been corroborated from any other independent source.
20. Alamghir appellant has been only attributed Lalkara and has been implicated to widen the net due to relationship with the main accused.
21. Conversely, the appeal has been opposed by learned counsel for the State who has supported the impugned judgment. Despite showing the name of Mr. Irshad Hussain Rhatti, Advocate for complainant none has turned up.
22. Heard. Record perused.
23. The occurrence took place at 5 p.m. In the month of April and case was registered at 5-45 p.m, at the police station at a distance of 4 lam, from the police station which means that the accused were nominated in promptly recorded F.I.R. It was a daylight occurrence, The presence of the complainant Muhammad Iqbal, P.W.7 and Muhammad Eesab, P.W.8 cannot be doubted as Muhammad Eesab remained present with the dead body when Muhammad Iqbal went to police station to lodge F.I.R. Both of them had furnished sufficient explanation by going with the deceased alongwith Railway Line near the place of occurrence. They stood the test of lengthy cross- examination but nothing has been brought on record to discard their testimony. They are truthful and reliable witnesses. The ocular account has been corroborated by medical evidence and the motive alleged by the complainant, therefore, we, after deep reappraisal of evidence, are convinced that the prosecution case against Said Amir appellant has been established beyond any shadow of doubt and do not find any reason to interfere in the conviction recorded against him.
24. As far as his sentence is concerned, it is correct that occurrence took place in front of house of Abdul Majid co-accused and Said Amir appellant caused only one fire-arm injury and had not repeated the same. The element of family honour has alto been admitted in the prosecution evidence by producing Mulazim Hussain, P.W.9 And also in the F.I.R. And what transpired between the parties at the spot immediately prior to the occurrence is not clear, therefore, we find that it is not a case of capital punishment, so while maintaining the conviction we alter the sentence from death to imprisonment for life which will meet the ends of justice. However, the compensation is enhanced from Rs.20,000 to Rs.50,000 to be paid to the legal heirs of the deceased failing which Said Amir will undergo sit months' S.I, Benefit of section 382-B, Cr.P.C. Will also be available to him.
25. As far as case of Alamghir appellant is concerned, he has been only attributed Lalkara. He has not caused any injury to the deceased. The complainant had also implicated Abdul Majid who has been acquitted by the trial Court, therefore, possibility cannot be ruled out that Alamghir was also implicated by widening the net to involve the other members of the family; therefore, by extending benefit of doubt his appeal is allowed. His conviction and sentence is set aside. He is ordered to be released forthwith if not required to be detained in any other case.