' BASHIR A. MUJAHID, J.--- Sarfraz alias Mido son of Mahni has challenged judgment, dated 26-3- 1998 passed by learned Additional Sessions Judge, Jhang, whereby he was convicted and sentenced to death under section 302(b), P.P.C. And a fine of Rs,25,000 to be paid to the legal heirs of the deceased under section 544, Cr.P.C. In default thereof he had to undergo six months' S.I., for commission of Qatl-i-Amd of Sajjad Hussain. He was also convicted under section 324, P.P.C. And sentenced to 10 years' R.I. And a fine of Rs,10,000 in default of payment of fine he had to undergo one year's R.I. The fine if realized to be paid to the injured/complainant. He was further convicted under section 337-F(iii), P.P.C. And was ordered to pay Daman of Rs,2,000 and imprisonment of two years as Ta'zir, in default of payment of Daman to suffer simple imprisonment till payment of Daman. Both the sentences were ordered to run concurrently.
2. Through the same judgment, Haq Nawaz and Zulfiqar sons of Mahni were acquitted of the charge.
3. The brief facts of the prosecution case are that F.I.R. No,146/187 Exh.P.B. Was registered at Police Station Massan District Jhang on 24-8-1996 at 2 p.m. About the occurrence which took place at 9- 00 a.m. Same day, at the statement of Ghulam Farid son of Sardar with the allegation that he was cultivator and his residence was in Killa No,5 Square No,57 of village Dhidoana while his son Yousaf was residing in Killa No,18, Square No,52. On 24-8-1996, at 9 a.m. The complainant alongwith his sons Haq Nawaz and Sajjad Hussain were going towards Dhari of Yousaf and were near Killa No,17, Square No,52 when the accused Haq Nawaz, Sarfraz, Zulfiqar sons of Mahni, Muhammad Bakhsh son of Wali Muhammad, Abdus Sattar son of Muhammad Bakhsh, Haider son of Muhammad Bakhsh armed with guns .12 bore and Sarfraz son of Rehman armed with rifle 7 mm emerged all of a sudden from sugarcane crop. Muhammad Bakhsh son of Wali Muhammad raised Lalkara to the effect that me complainant party be finished to eliminate the evidence of murder case of Yousaf, on which, Haq Nawaz fired from his gun .12 bore at Sajjad Hussain hitting on his left side of chest, second fire was made by Sarfraz hitting upper part of left arm of Sajjad, who fell on the ground after receiving the injuries. Zulfiqar son of Mahni fired at Haq Nawaz from his .12 bore gun hitting right side of his chest. The remaining accused kept on firing in the air and extending threats to the P.Ws. Jalal son of Bahawal and Allah Ditta son of Allah Yar were also attracted to the place of occurrence and they witnessed the occurrence. The accused fled away from the spot. Sajjad Hussain died at the spot.
4. Muhammad Nasrullah, Inspector C.W.1 recorded the statement Exh.C.W.1/1 of Ghulam Farid at Chowk Jaina Shah and sent the same to the police station for registration of formal F.I.R. And he himself arrived at the place of occurrence. He took the dead body of Sajjad Hussain into possession and prepared his injury statement through memo. Exh.C.W.1/2 and inquest report Exh.C.W.1/3 and dispatched the dead body for post-mortem examination through Muhammad Ramzan, F.C. He collected the blood-stained earth from the spot through memo. Exh.P.E. Recorded the statements of the prosecution witnesses. Muhammad Ramzan, F.C. Produced the last-worn clothes of the deceased after postmortem examinations which were taken into possession through memo.
Exh.P.D. On 25-8-1996, he recorded the statement of Haq Nawaz, P.W.12 in the hospital where he was admitted after seeking permission from the doctor. On 19-10-1996, he arrested Haq Nawaz, Sarfraz, Zulfiqar, Muhammad Bakhsh, Abdus Sattar and Haider, and Sarfraz alias Mido appellant was in possession of .12 bore gun which was taken into possession through memo. Exh.C.W.1/6. According to his investigation, Abdus Sattar, Haider, Muhammad Bakhsh, Haq Nawaz and Zulfiqar were innocent and Sarfraz appellant and his brother Mumtaz were guilty for murder of Sajjad. Mumtaz could not be arrested and was declared proclaimed offender.
5. After completion of the investigation challan against the appellant was submitted.
6. The complainant being dissatisfied with the investigation of the police filed a private complaint Exh.P.B. In which after recording preliminary evidence Haq Nawaz, Sarfraz alias Mido and Zulfiqar son of Mahni were summoned to face the trial.
7. The trial Court framed the charge which was denied by the accused and they claimed trial.
8. During the trial the prosecution examined as many as 13 witnesses to prove the guilt of the accused.
9. The medical evidence was furnished by Dr. Allah Bakhsh P.W.1 who on 24-8-1996 medically examined Haq Nawaz son of Ghulam Farid, P.W.12 and found the following injury on his person:-- "A fire-arm entrance wound .8 x .8 c.m. On the middle left clavicle. Depth not probed with complaint of pain and left chest, margins of the wound were inverted."
10. Dr. Zafar Iqbal, P.W.6 on the same day conducted the postmortem examination on the dead body of Sajjad Hussain and found the following injuries:--
(1) A fire-arm wound of entrance .8 x .8 c.m. x DNP on the front of left chest 3.5 c.m. Above the left nipple. The margins were inverted and there was no blackening around the injury.
(2) A fire-arm entrance wound 1 x 1 c.m. x bone deep on the front of left arm upper part. The margins were inverted and there was no blackening around the wound.
(3) An abrasion .5 x .5 c.m. On the bridge of the nose. The corresponding holes were present on the shirt.
11. The ocular account was furnished by Haq Nawaz, P.W.12 , who filed the complaint. He supported the version of the F.I.R. And of the complaint Exh.P.B. He was injured in the same occurrence and stated that Zulfiqar accused caused him fire-arm injury. He also narrated the motive of the occurrence. Allah Ditta, P.W.13 was another eye-witness of the occurrence. He supported the prosecution story and his. Statement was in line with the statement of Haq Nawaz, P.W.12.
12. Mushtaq Hussain, Patwari, P.W.2 had prepared the site plan of the place of occurrence.
Muhammad Yar, F.C. P.W.4 kept the sealed parcels of the blood-stained earth in police Malkhana in safe custody and handed over the same to Liaqat Ali, F.C. On 1-10-1996 to deposit at the office of Chemical Examiner. Muhammad Zafar, F.C. P.W.5 caused the arrest of Sarfraz appellant on 19-10- 1996 and attested the recovery memo. C.W.1/6 whereby gun .12 bore was taken into possession by the Investigating Officer from the appellant. Liaqat Ali, F.C. P.W.7 had delivered parcel at the office of Chemical Examiner. Muhammad Ramzan, F.C. P.W.8 had escorted the dead body of Sajjad Hussain deceased for post-mortem examination and produced the last-worn clothes of the deceased before the Investigating Officer which were taken into possession through memo. Exh.P.D. Which was attested by him. Mukhtar son of Theraj, P.W.9 and Sardara, P.W.10 were the witnesses of extra- judicial confession made by Mumtaz co-accused. They were declared hostile and are not relevant for the purpose of instant case. Yaqoob son of Ghulam Farid, P.W.11 identified the dead body of Sajjad deceased at the time of post-mortem examination.
13. The prosecution evidence was closed by tendering in evidence certified copy of report of Serologist Exh.P.G. And judgment dated 11-5-1991 (State v. Ghulam Farid) and F.I.R. No,11, dated 11-8- 1990.
14. The statements of the accused were recorded under section 342, Cr.P.C. They denied the allegations and claimed innocence and false involvement. However, Sarfraz alias Mido appellant in reply to Question No,10, has he anything else to say, replied as under:-- "My brother Mumtaz involved in the murder case of Yousaf was still a P.O. On the fateful day he was present at my Dhari alongwith me, my younger brother Mazhar and my mother. The river Chanab was in high flood. My Dhari was in between the two creeks of the river. Learning about the presence of Mumtaz, Haq Nawaz complainant. Sajjad deceased alongwith some other persons came at our Dhari. They wanted to murder Mumtaz to take the revenge of Yousaf. They started firing towards us.
We hid ourselves and returned the firing as a result of which both Sajjad and Haq Nawaz were injured and Sajjad died. His dead body was then shifted to the deserted Dhari of Yousaf and a false case was registered against us. Mumtaz and myself have returned the firing in our right of self- defence. Haq Nawaz and Zulfiqar co-accused were not present there. They had gone to Chak No,253 where they resided. Nobody else as stated by the P.Ws. Was present there. I am innocent.
The complainant has involved falsely all the members of our family in this case due to previous enmity."
' Ghulam Nabi D.W.1 and Sher Muhammad D.W.2 were examined by the accused to prove the plea of alibi of Haq Nawaz and Zulfiqar accused.
15. The trial culminated into conviction of the appellant as mentioned above, who has filed Criminal Appeal No,253 of 1998 while the complainant has filed Criminal Appeal No,788 of 1998 against acquitted co-accused Haq Nawaz and Zulfiqar sons of Mahni. The trial Court has sent up Murder Reference No,104 of 1998 for confirmation of death sentence of Sarfraz alias Mido, appellant. All the matters are being decided by this judgment.
16. Learned counsel for the appellant has argued that from the very beginning the defence plea was that the complainant party had a motive to take revenge of murder of Yousaf and on knowing that Mumtaz is present at his Dhari due to flood in the river launched attack and Mumtaz in self- defence opened fire at the complainant party hitting the deceased and this suggestion was put to Muhammad Nasrullah, Inspector C.W. I (Investigating Officer); that the same P.Ws. Have been disbelieved qua the co-accused then they cannot be relied upon against the appellant. The enmity between the parties is admitted and the ocular account furnished by Haq Nawaz and Allah Ditta has not been corroborated from any other independent source; that Haq Nawaz who was injured in the same occurrence has not attributed fatal shot to the appellant, therefore, it is not case of capital punishment.
17. Conversely, the appeal has been opposed by learned counsel for the State, who has supported the impugned judgment. None has turned up from the complainant side.
18. Heard. Record perused.
19. The occurrence took place at 9 a.m. And the F.I.R. Was lodged at 2 p.m. At the police station which was at a distance of 12 miles from the place of occurrence which shows that the F.I.R. Was promptly recorded and the appellant was nominated accused with specific role. The motive is although double-edged weapon but the occurrence and participation in the occurrence has been admitted by the appellant as they wanted to eliminate the prosecution evidence in murder case of Yousaf. The presence of Haq Nawaz P.W.12 at the spot who was injured cannot be doubted. The defence plea that the complainant party was the aggressor is not believable as nobody was injured from the accused side. He has implicated the present appellant with specific role having fired at the deceased. The injury attributed to the appellant is corroborated by medical evidence.
The appellant himself admits his participation in the occurrence and presence at the spot, therefore, by keeping the prosecution case and the defence plea in juxta-position, we find that the prosecution case has been established against the appellant beyond any shadow of doubt and do not find any reason to interfere in the conviction recorded against him.
20. As far as sentence is concerned, Haq Nawaz P.W.12 has not attributed fatal injury having been caused by the appellant to Sajjad Hussain deceased but was attributed to Zulfiqar who has been acquitted by the trial Court. The same witnesses Haq Nawaz and Allah Ditta have been disbelieved against co-accused Haq Nawaz and Zulfiqar, therefore, for safer administration of justice we find that it is not a case for capital punishment. Therefore, while maintaining the conviction, we reduce the sentence from death to imprisonment for life. The imposition of compensation to be paid to the legal heirs of the deceased or sentence in default thereof is however, maintained.
21. As far as conviction under sections 324 and 337, P.P.C. Is concerned, the injury of Haq Nawaz is not attributed to the appellant, and therefore, his convictions under these sections are set aside.
Benefit of section 382-B, Cr.P.C. Will be available to the appellant. The appeal is dismissed with the above modification.
22. Murder Reference No,104 of 1998 is answered in the negative.
23. Criminal Appeal No,788 of 1998 filed by the complainant is also dismissed having no force.