SHAIKH ABDUR RAZZAQ, J.- The appellant Abdul Khaliq along with acquitted accused Abdul Saleem, Khizar Hayat, Muhammad Hussain, Abdul Karim, Muhammad Afzal and Muhammad Amir alias Nazar Hayat have been sent up to face trial u/Ss. 302/324/342/148/149, PPC vide F.I.R. No. 75/94, dated 27.3.1994 registered at P.S. Jhal Chakian District Sargodha.
2. Briefly stated the facts are that Nazar Hayat complainant (PW-5) is a Zamindar of Chak No. 69- Shumali. On 26.3.1994 his brother Umar Hayat along with one Muhammad IIyas son of Allah Bux and Muhammad Ramzan son of Muhammad Khan had gone for sowing sugarcane crop of Muhammad Nawaz Maikan in Chak No. 75 Shumali. When they passed near the Dera of Khizar Hayat son of Sardar Bux they found Khizar Hayat and Muhammad Afzal son of Abdullah were sitting there, who exchanged hot words with his brother Umar Hayat and others, as. a result of which they also grappled with each other. On 27.3.1994 at 1.30 p.m. Muhammad IIyas and Muhammad Ramzan were again on their way to the Dera of Muhammad Nawaz for sowing sugarcane. When they passed near the Dera of Khizar Hayat aforementioned they found that Abdul Saleem son of Abdul Rashed, Khizar Hayat son of Sardar Bux, Nazar Hayat Bhatti armed with 12 bore guns whereas Abdul Khaliq son of Muhammad Hussain armed with rifle and one. Muhammad Hussain son of Sama empty-handed along with one unknown person were present there. They caught hold of Muhammad Ramzan and Muhammad IIyas and after giving beating to Muhammad IIyas confined them in a room. However, Muhammad Ramzan fled away and brought this fact into the notice of his brother Umar Hayat. Upon this Umar Hayat and Muhammad Ramzan made for said Dera for rescuing Muhammad IIyas. 0n coming to know about this fact the (complainant) also followed them. At about 2.00 p.m. When his brother Umar Hayat and Muhammad Ramzan reached near the Dera, his brother Umar Hayat requested Abdul Khaliq to release Muhammad IIyas immediately.
Upon this Abdul Khaliq who was already standing there duly armed with rifle fires upon his brother Umar Hayat, which hit him on his right arm above the elbow. Khizar Hayat fired with his gun which hit Muhammad Ramzan on his left ankle as a result of which who fell- down. Abdul Khaliq made two successive fired which hit his brother Umar Hayat on the right side of his chest and on the right said of his neck. Consequently his brother fell down. Abdul Saleem, Nazar Hayat and the unknown person started firing, ln the meanwhile, on his hue and cry Muhammad Bux son of Muhammad Nawaz and Amir Sultan son of Sultan, were attracted and witnessed the occurrence. The complainant and others tried to rescue the victim upon which accused raised lalkara that if any body tried to intervene he would also face the same consequence. Consequently, they could not rescue them and the accused decamped from there. The motive behind this occurrence is the exchange of hot words between his brother Umar Hayat and others and the detention of Muhammad IIyas, for whose release his brother Umar Hayat along with Muhammad Ramzan had gone to the said Dera. This caused annoyance to the accused party who duly armed with lethal weapons committed the murder of his brother and caused injuries to Muhammad Ramzan at the behest of Muhammad Afzal son of Abdullah. Leaving the dead-body of Umar Hayat and injured Muhammad Ramzan, the complainant made for the Police Station to lodge F.I.R.
3. Iftikhar Ahmed, S.I. (PW-10) was posted as SHO at PS Jhal Chakian on 27.3.1994 who on the statement of Nazar Hayat complainant (PW-5) recorded F.I.R. Ex. P.M. He thereafter proceeded to the place of occurrence, took out Muhammad IIyas PW from the Kotha of Dera of Khizar Hayat, prepared injuries statement of Muhammad IIyas Ex. PP. He recovered the dead-body of Umar Hayat lying in the water-course near the said Dera and prepared injuries statement Ex. PE and inquest report Ex. PF. He entrusted the dead-body for post-mortem examination to Muhammad Mirza FC (PW-1). He also prepared injury statement of Muhammad Ramzan PW Ex. PQ and also sent him to hospital for his medical examination through Muhammad Ibrahim FC. Thereafter he inspected the spot and took into possession guns P4, rifle P5 and gun P6 vide memos. Ex. PH, PI and PJ respectively. He also secured blood-stained earth from the place of occurrence where dead- body of Umar Hayat was lying vide memo. Ex. PN. He also recorded the statements of witnesses. 0n 28.3.1994 Muhammad Mirza (PW-1) produced before him last worn clothes of the deceased P1 to P3 which he secured vide memo. Ex. PA. On 12.4.1994 he directed the Patwari to prepare site plans, which he prepared and handed over to him on 15.4.1994 which are Ex. PO, and PO/1. Muhammad Latif, Inspector (PW-11) was entrusted the investigation of this case on 24.4.1994. On the same day the arrested accused Abdul Khaliq, Abdul Karim, Khazir Hayat, Abdul Saleem, Muhammad Afzal, Muhammad Hussain and Muhammad Amir alias Nazar Hayat. The accused Abdul Karim and Muhammad Khaliq produced their licensed guns P7 and P8 which he secured vide memos. Ex. PL and PM respectively. Thereafter the case sent up for trial.
4. A charge under Sections 302/324/342/148/149, PPC was framed against the accused, to which they pleaded not guilty and claimed trial.
5. To bring home guilt to the accused prosecution examined PW-1 Muhammad Mirza FC, PW-2 Dr. Irfan Fareed, PW-3 Munir Hussain, Constable, PW-4 Mian Mushtaq Ellahi, PW-5 Nazar Hayat complainant, PW-6 Muhammad Ramzan (injured eye-witness), PW-7 Sakhi Muhammad Patwari, PW-8 Rehmat Ali Shah, PW-9 Muhammad IIyas, PW-10 Iftikhar Ahmed, SI, PW-11 Muhammad Latif, Inspector and PW-12 Muhammad Ibrahim, Constable. Thereafter, the learned DDA produced report of Chemical Examiner Ex. PR and report of Serologist Ex. PR and then closed the prosecution case vide his statement dated 21.3.1996.
6. When examined under Section 342, Cr.P.C, the accused Abdul Khaliq denied the prosecution version and stated that he has been implicated in this case falsely. Similarly, the accused Khizar Hayat, Abdul Karim, Muhammad Amir alias Nazar Hayat, Abdul Saleem, Haji Muhammad Hussain and Muhammad Afzal denied the prosecution version and stated that they have been implicated in this case falsely. The accused Abdul Khaliq, however, tendered copies of F.LRs. Ex. DF to DP and then closed his defence evidence on 26.3.1996.
7. After going through the evidence produced bv the prosecution as well as the defence, the Trial Court while acquitting Abdul Karim, Khizar Hayat, Abdul Saleem, Muhammad Afzal, Muhammad Hussain and Muhammad Amir alias Nazar Hayat convicted the accused Abdul Khaliq under Section 302-B, PPC and sentenced him to death and further directed to pay Rs. 1 lac as compensation under Section 544-A, Cr.P.C, to the legal heirs of the deceased or in default thereof to further undergo R.I. For 6 months.
8. Feeling aggrieved of the said judgment, instant criminal appeal has been filed.
9. Along with this appeal, Murder Reference No. 159/96 has also been forwarded by the Trial Court as required u/S. 374, Cr.P.C.
10. As the instant Criminal Appeal as well as Murder Reference No. 159/96 arise out of the same judgment so the? Are being disposed of by this single judgment.
11. We have heard the learned counsel for the appellant as well as learned counsel for ' the complainant, assisted by the learned counsel for the State.
12. It is submitted by the learned counsel for the appellant that motive behind this occurrence relates to an incident which had taken place on 26.3.1994 but the contents of F.I.R, do not give the background of said incident, that as such the motive behind this occurrence has been intentionally concealed by the complainant, that as per prosecution version accused' party fired at the complainant party with their guns and rifle, but no empty has been recovered from the site and this fact falsify the prosecution stand, that as per contents of F.I.R, the injuries on the person of deceased are said to have been caused by the accused/appellant with his rifle but the said injuries have been disclosed to be of gun by PW-6 Muhammad Ramzan, that presence of the complainant as well as injuries on the person of Muhammad Ramzan (PW-6) have been disbelieved by the Trial Court, that occurrence is alleged to have been seen by the complainant along with Muhammad Ramzan (PW-6) and Muhammad IIyas (PW-9), but Muhammad IIyas has denied the said fact, as he had been confined in the alleged Kotha, that even otherwise ocular account is in conflict with medical evidence, so it cannot be relied upon without any independent corroboration, that the previous conduct of Muhammad Ramzan and Muhammad IIyas PWs reveals that they have been implicated in so many cases of narcotics, as such their evidence cannot be considered trustworthy, that on the same evidence the Trial Court has acquitted all the co-accused of the present appellant, which fact further makes the prosecution highly doubtful. He further contended that if his said submissions do not find favour with the Court, even then the sentence awarded to the accused/appellant is a harsh one and it required modification. While explaining his aforesaid submission he submitted that case of the petitioner falls within the ambit of Section 302-C, PPC as such he be dealt with in accordance with law, that as the complainant party had attacked duly armed with lethal weapons so apprehending danger to their lives they had acted in their self-defence resulting into the death of deceased.
13. Conversely, the impugned judgment has been supported by the learned counsel for the complainant assisted by the learned counsel for the State.
14. According to the prosecution version the accused party had resorted to firing resulting into injuries to Muhammad Ramzan (PW-6), Muhammad IIyas (PW-9) and causing death of Umar Hayat. PW-2 Dr. Irfan Fareed examined Muhammad IIyas (PW-9) on 27.3.1994 at 3.30 p.m. And found 7 injuries on his person. Similarly, he examined Muhammad Ramzan (PW-6) on the same day at 10.15 p.m. And found one injury on his person. He also conducted the postmortem examination of Umar Hgyat on 28.3.1994 at 11.30 a.m. And found the following injuries on his person:--
(1) A i.e-arm wound of entry 3/4 c.m. 3/4 c.m. With inverted margin and blackening of edges on front and upper part of right side of chest just near the right shoulder with corresponding marks present on shirt.
(2) Linear superficial skin burn wound of i.e-arm 1-1/2 c.m. x 3/4 c.m. On outer and lower part of right side of neck with corresponding marks present on shirt.
(3) A linear superficial skin burn wound of i.e-arm 3 c.m. x T c.m. On outer side of right elbow with corresponding marks present on shirt.
(4) A i.e-arm wound of entry 3/4 c.m. x 3/4 c.m. Muscle deep with blackening of edges margin inverted on back and upper part of right side of chest closed to the mid line with corresponding marks present on shirt.
15. As per internal examination Medical Officer removed one pellet under the skin area on middle and back of lower part of chest, ln his opinion the cause of death of due to injury No. 1, which was caused by firearm.
16. Much stress has been laid by the learned counsel for the accused/appellant on the point that according to the contents of F.I.R, Ex. PM fatal injury attributed to the present accused/appellant had been caused by his rifle as he (accused/appellant) has been shown to be armed with rifle at the relevant time. He further contends that even according to the statement of PW-2 a pellet has been removed from the person of the deceased which also shows that said injury is the result of rifle. However, it has been deposed by PW-6 Muhammad Ramzan that the accused/appellant was not carrying a rifle but a gun. Similar is the statement of the complainant, which he made subsequently after lodging the F.I.R: His contention is that as there is a discrepancy regarding the very weapon alleged to have been used in the commission of this offence so this fact alone makes the prosecution case doubtful. He further contended that the Investigating Officer had recovered gun P4, rifle P5 and gun P6 from the place of occurrence vide memo. Ex. PH, PI and PJ respectively and the said guns and rifle belong to the complainant party. His contention is that as the complainant had come fully prepared with lethal weapons so the accused party had the right to defend their person and property and in the exercise of said right they had caused the injuries to the deceased and as such could not be. Held responsible for the murder of the deceased. The stand of the learned counsel for the accused/appellant looks very plausible on its face. However, when the matter is probed minutely, it looses force. The right of self- defence was not claimed by the accused/appellant during the trial. However, the said right can be claimed if it emerges from the cross-examination, to which prosecution witnesses have been subjected. Even if it is assumed for the sake of argument that right of self- defence was available to the accused/appellant, the question arises if said right was availed or not. Admittedly none from the accused side had received even a scratch on his person. This being the factual position the question of resorting to firing in the exercise of right of self-defence on the part of accused is a devoid of any force. Had the accused party been injured or received any scratch on their person this contention could be pressed into service. As there is no such injury on the person of the accused party and this plea of self-defence was also not raised during the trial so we do not find any force in this submission of the learned counsel for the accused/appellant.
17. Learned counsel for the accused/appellant has also laid much stress on the point that accused/appellant is said to have caused injuries with rifle but a period of the injuries on the person of deceased shows that it has not been caused by a rifle. Even PW-6 Muhammad Ramzan, it is contended, has admitted that the said injuries are the result of gun and not a rifle. The discrepancy in the description of weapon used by the accused/appellant is due to the fact that complainant party was inside the Kotha whereas accused party had resorted to firing from outside. The mere fact that complainant has disclosed the accused/appellant to be armed with rifle and his statement has 'not been, corroborated by PW-6 Muhammad Ramzan does not mean that deceased was not done to death by the accused/appellant. The ocular account of the complainant regarding injuries on the person of deceased stands corroborated by medical evidence which has come on record in the form of statement of PW-2. Thus prosecution has succeeded in bringing home guilt to the accused/appellant beyond any reasonable doubt.
18. Now the question if the accused/appellant has been awarded sentence -in accordance with law or not. Admittedly incident dated 27.3.199 is the result of some incident' which had taken place on 26.3.1994. The background/motive of occurrence dated 26.3.1994 consequent upon which occurrence dated 27.3.1994 had taken place neither appears in the F.I.R, nor has been disclosed by the complainant while recording his statement as PW-5. Thus, the motive of this occurrence remains shrouded in mystery. This being the position, the capital punishment has not been approved under these circumstances. Accordingly, while dismissing the appeal we modify the sentence of death to imprisonment for life and similarly reduce the amount of compensation from Rs. 1 lac to Rs. 50,000/- and further order that in case the amount of compensation is not paid the appellant shall suffer R.I. For 6 months. However, we extend benefit of Section 382-B, Cr.P.C, to the appellant.
19. With this modification the appeal stands disposed of and the Murder Reference is answered in negative.