1. BASHIR A. MUJAHID, J.--- Zafar Iqbal and Zulfiqar alias Zula sons of Allah Bakhsh and Muhammad Iqbal son of Ghulam Hussain have challenged judgment, dated 8-3-1995 passed by learned Additional Sessions Judge, Lodhran whereby they were convicted under section 302/34, P.P.C. And Zafar Iqbal and Zulfiqar alias Zula were sentenced to death while Muhammad Iqbal was sentenced to imprisonment for life. All the appellants/accused were ordered to pay fine of Rs.25,000 each, in default of payment of fine to undergo R.I. For two years. They were further ordered to pay Rs.25,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased Naeem Ahmad in default of payment thereof to undergo imprisonment for six months each. All the accused were awarded benefit of section 382-B, Cr.P.C.
2. Through the same judgment Nadir Ali and Javed Iqbal were acquitted of the charge, whereas perpetual warrants were ordered to be issued against Muhammad Hafeez (proclaimed offender) co-accused of the appellants.
3. The brief facts of the case are that Muhammad Bashir, P.W.1 got registered F.I.R. No.236 on 31-8-1989 (Exh.P.A.) at Police Station Duniapur, District Lodhran at 7-15 a.m. About the occurrence which took place at 6 a.m. On the same day, alleging therein that the complainant who was resident of Chak No.343/WB was present alongwith his brothers Naeem Ahmad and, Munir Ahmad at their Dera situated in Killa No. 14 of Square No.35 in Chak No.342/WB where their cousin Arshad Iqbal, P.W.2 was already present. At about 6 a.m. Zulfiqar alias Zula, War Iqbal, Muhammad Iqbal and Hafeez alias Feeja armed with fire-arms arrived there and started firing. The complainant and his brother tried to escape but Zafar Iqbal inflicted butt blow at the back of Naeem Ahmad (deceased) and Hafeez (proclaimed offender) fired at Naeem Ahmad hitting at his right leg. Muhammad Iqbal fired at Naeem Ahmad on his right thigh. Naeem Ahmad after receiving the injuries fell on the ground.
4. On which, Zulfiqar accused fired a shot at his abdomen and War Iqbal also fired at the abdomen of Naeem Ahmad. Hafeez accused caused butt blow at Arshad Iqbal hitting on his right arm. Many persons from the-village and adjoining Deras were attracted to the spot and the accused fled away towards their Dera. Naeem Ahmad succumbed to the injuries at the spot.
5. The motive for the occurrence was that goats of Zafar Iqbal had damaged the cotton crop of the complainant due to which Naeem Ahmad had given beating to Zafar Iqbal and to take revenge of that beating and litigation about the Lambardari between Nadir Ali and Javed Ali with paternal- uncle of complainant Barkat Ali, the accused committed this occurrence at the instance of said Nadir Ali and Javed Iqbal.
6. Muhammad Nazir, S.H.O. C.W.7 after registration of the case undertook the investigation and prepared the injury statement of the dead body of Naeem Ahmad through memo. Exh.C.C. And inquest report Exh.C.D. And despatched the dead body for post-mortem examination and he collected six empties cartridges P.1 to P.6 from the spot through memo. Exh.P.F. And blood-stained earth through memo. Exh.P.E. And recorded the statements of the prosecution witnesses under section 161, Cr.P.C. After post--mortem examination he also took into possession last-worn clothes of deceased through memo. Exh.C.B. On 15-9-1989 he arrested the appellants. On 18-9-1989, Zulfiqar accused while in police custody led to the recovery of gun .12 bore P.14 alongwith two live cartridges P.15 P.16 which were taken into possession through memo. Exh.P.H. On the same day, Zafar Iqbal accused also led to the recovery of gun 12 bore P.11 with two live cartridges P.12 P.13 which were taken into possession through memo. Exh. P. G. On the same day Muhammad Iqbal also led to the recovery of gun .12 bore P.17 which was taken into possession through memo. Exh.P.J.
7. Thereafter, investigation of the case was entrusted to Nazir Ahmad Bhatti, S.-I. C.WA who arrested Hafeez accused on 23-1-1990 who while in police custody led to the recovery of rifle .7. Mm P.1 on 28-1-1990 alongwith two live bullets P.2 to P.4 which were taken into possession through memo. Exh.
8. P. C.
9. During the investigation Javed Iqbal and Nadir Ali accused were declared innocent on which Muhammad Bashir complainant filed a private complaint in which after recording the preliminary evidence the challan case and the private complaint were consolidated and the trial Court summoned the appellants alongwith their co-accused to face the trial. Hafeez accused absented from the trial Court and he was declared proclaimed offender on 29-1-1994. The trial Court framed the charge which was denied by the accused and they claimed trial.
10. During the trial the prosecution examined as many as 11 witnesses to prove the guilt of the accused.
11. Muhammad Bashir complainant of the case was examined as P. W .1, who supported the version of the F.I.R. And complaint Exh.P.B. And he also narrated the motive of the occurrence. Arshad Iqbal cousin of the complainant was examined as P. W.2. He supported the complainant P. W. r and narrated the story as an eye-witness of the occurrence. Haji Muhammad Akram, P.W.3 was the witness of conspiracy between the present appellants and acquitted co-accused Nadir Ali and Javed Iqbal. Basharat Ali, Patwari was examined as C.W.1 who had prepared the site plan of the place of occurrence. Muhammad Akram, C.W.2 had produced the last-worn clothes of the deceased before the Investigating Officer which were taken into possession through memo.
12. Exh.C.B. And he attested the said recovery memo. Dr. Muhammad Ismail Mangla, C.W.3 conducted the post-mortem examination on the dead body of Naeem Ahmad deceased and found the following injuries on his person:--
(1) An oval lacerated wound 3.5 x 3 c.m. Deep to abdominal cavity 2.5 c.m. Below umbilicus edges were inverted. Omentum coming out of the wound.
(2) Six fire-arm wounds were on right upper side of injury No. 1 in cresentic line. There were six corresponding holes in the shirt.
(3) A lacerated wound 1 x 1 c.m. Just above in medial size of right knee joint with corresponding hole in Chadar.
(4) A fire-arm wound on medium side on right thigh 12 c. m. Above injury No.3.
(5) A fire-arm wound on medial side of right leg with exit wound on opposite side.
(6) A contusion mark size 6 x 2 c.m. On right buttock.
13. Akhtar Hussain Shah, A.S.-I., C.W.5 was posted at Police Station Duniapur as Moharrir and kept the sealed parcels in Police Malkhana in safe custody handed over to him by the Investigating Officer.
14. Sardar Khan, F.C., C.W.6 delivered the sealed parcel containing the guns .12 bore recovered from the accused at the Office of Forensic Science Laboratory on 26-9-1989. Ghulam Haider, F.C., C.W.8 delivered the sealed parcel of the empties and blood--stained earth at the office of Forensic Science Laboratory and' of Chemical Examiner on 12-9-1989 after removing the objection.
15. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.C.G. And that of Serologist Exh.C.H. As well as of Technical Services Exh.C.J.
16. The statement of the accused/appellants were recorded under section 342, Cr.P.C. They denied the allegations and claimed their innocence and false involvement. Zafar Iqbal and Zulfiqar alias Zula in reply to question No.7 replied as under:-- "We have falsely been involved in this case on account of political enmity. P.Ws. Have deposed false due to relationship with the complainant party. They are also inter se related. "
17. The trial culminated into conviction of the appellants as mentioned above. Zafar Iqbal and Zulfiqar alias Zula have filed Criminal Appeal No.53 of 1995 against their conviction and sentence while Muhammad Iqbal has filed Criminal Appeal No.70 of 1995 against the same judgment and the trial Court has sent up Murder Reference No. 304 of 1997 for confirmation of death sentence of both the appellants Zafar Iqbal and Zulfiqar alias Zula. All the matters are being decided by this single judgment being outcome of the same judgment.
18. Learned counsel for the-appellants at the very outset has stated that she does not challenge the conviction recorded against the appellants Zulfiqar Ahmad alias Zula and Zafar Iqbal. However, she prays for reduction in their sentence on the ground that the motive set up by the prosecution has not been proved. Reliance has been placed on 2002 SCM R 1473 titled Muhammad Amin v. M. Khan and others, that the legal heirs of the deceased had effected the compromise with co-accused Nadir Ali and Javed Iqbal and had stated that the complainant will not press the complaint.
19. Thereafter, the trial in the complaint was not legal and proper. The prosecution witnesses had also not appeared to depose against the appellants till their warrants for arrest were issued. According to the learned counsel, these are the sufficient mitigating circumstances for awarding lesser sentence.
20. Conversely, the appeals have been opposed by learned counsel for the State who has supported the impugned judgment.
21. Heard. Record perused.
22. The alleged occurrence took place at 5-30 a.m. On the last day of August, 1989 and the matter was reported at the police station at 7-15 a.m. And the accused are nominated in promptly recorded F.I.R. Muhammad Bashir, P. W.1 and Arshad Iqbal P.W.2 have no previous enmity for false implication of the appellants or their substitution by letting of the real culprits. Mere relationship is no ground to discard their testimony as it is very common in the society and impartial people do not come forward to depose against the criminals. They have sufficiently explained their presence at their Dera in their fields where the occurrence took place, therefore, learned counsel for the appellants is justified in not challenging the conviction recorded against them.
23. As far as their sentence is concerned, we agree with the arguments of the learned counsel that the motive alleged by the complainant in the F.I.R. Was not proved and the matter of beating was not reported to the police. The complainant party compromised with the other co-accused and had sworn affidavits wherein it has been clearly stated that they do not want to prosecute the complaint. The conviction was recorded in the trial conducted in the private complaint. Both the appellants Zulfiqar alias Zula and Zafar Iqbal are in continuous incarceration since 1989 and are in death cell since the impugned judgment was passed on 8-3-1995 and they have expectancy of life, therefore, we do not find that it is a fit case to maintain capital punishment so while maintaining the conviction, the same is altered from death to imprisonment for life by extending benefit of section 382-B, Cr.P.C. Their appeal is dismissed with the above modification.
24. As far as case of Muhammad Iqbal appellant is concerned, the ocular account has not been corroborated by medical evidence or the recovery of weapon of offence and according to statement of the doctor possibility cannot be ruled out that injuries Nos. 3, 4 and 5 could be the result of one fire shot, therefore, benefit of doubt is to be extended in his favour. Resultantly, his appeal is allowed and his conviction and sentence is set aside. He is on bail, his sureties are discharged.
25. Murder Reference No.304 of 1997 is answered in the negative.