2014 P Cr (PLP)

MUHAMMAD ALAM, J.

Through this Criminal Appeal, appellants have challenged order dated 13-12-2011 of the learned Additional Sessions Judge Diamer, whereby, the learned Additional Sessions Judge has convicted the appellants, sentencing Mr. Muhammad Riaz, appellant No.1, to death and awarded sentence of life imprisonment to Mr. Abdul Bari, appellant No.2, and Mr. Zia-ul-Haq alias Zail, appellant No.3. Besides the said sentence, learned trial Court sentenced appellant No.1 for payment of fine of Rs.200,000 payable to the legal heirs of the deceased and in default thereof, directed for undergoing rigorous imprisonment of six (6) months. Mr. Muhammad Riaz, appellant No.1, has also been convicted for imprisonment for seven (7) years for the offence of section 13 of the Arms Ordinance XX of the year 1965. Learned trial Court has fined appellant Muhammad Riaz for offence of section 13 of the Arms Ordinance, besides corporal punishment of seven (7) years' rigorous imprisonment.

2. Appellants have filed this appeal praying that convicts/appellants be acquitted setting aside the impugned judgment/conviction.

3. F.I.R., Exh-P.W.1/B, has been chalked on written report wherein the prosecution story of the occurrence is that the complainant purchased 16 kg ghee from Jehangir for payment of Rs.6,

000. On demand of payment of said amount, there was a quarrel between complainant and accused party. Then parties agreed for acting upon a sharie decision through Molvi Abdul Rahman. This happened on 2-8-2008. At Asr prayer time of the said day, accused approached the complainant demanding Rs.8,200 instead of Rs.6,000 but at this time accused had weapons in their hands and after exchange of harsh words, accused Riaz opened fires resulting to bullet injuries to deceased Shaukat son of Sher Khan.

4. Police conducted investigation and charge-sheeted convicts/appellants for trial. Learned trial Court completed trial proceedings and passed the impugned conviction. Learned trial Court relied on prosecution evidence.

5. We have heard learned counsel for parties at length and have gone through the file of the learned trial Court. We have found that:-- The F.I.R., Exh.P.W.1/B, is a very important document which does not attribute any fires being opened by appellants No.2 and

3. It is not disputed that deceased has died after receiving bullet injuries and cause of death therefore is the only bullet injuries. It is also very important to note that it has been alleged, in the F.I.R. that appellants No.2 and 3 were armed during the occurrence but .police did not recover any arms from the said two appellants. Another piece of prosecution evidence is Exh.P.W.6/A, the site plan, which does not show names of the appellants Nos.2 and

3. We do not find any mention of presence of appellants Nos.2 and 3 at any place in Exh.P.W.6/A. P.W.6 is stating about Exh. P.W.6/A who owns the contents of Exh.P.W.6/A as correct. On the backside of the challan, the Investigating Officer has not attributed any criminal role to appellants Nos.2 and 3 for the occurrence. In para No.27 of the impugned judgment, learned trial Court has himself written that appellants Nos.2 and 3 were not armed at the time of occurrence. So, conviction of appellants Nos.2 and 3 is not based on any evidence. Mere presence of appellants Nos.2 and 3, even if for arguments' sake, admitted on the scene of occurrence, without attribution of any specific role in commission of the offence, is never sufficient evidence for recording conviction. The above are the simple reasons on the basis of which we hold that conviction/sentence against appellants Nos.2 and 3 is wrong and we set aside the same to the extent of the two said appellants.

6. As to appellant No.1, prosecution evidence is based on previous enmity between parties. Prosecution has produced P.W.1 and P.W.2 as eye-witnesses. The occurrence has taken place at day time. The scene of occurrence is not disputed. Inquest report shows that deceased received bullet injuries. Defence has failed to shatter the veracity of the eye-witnesses who are directly charging appellant No.1 for opening fires on the deceased or on the complainant. Learned counsel for defence did not dispute the place of occurrence. The presence of P.Ws. on the scene of occurrence is natural. The statements of the eye-witnesses are corroborated from recoveries and inquest report. Even perusal of the examination of convict/appellant Muhammad Riaz under section 342, P.P.C. shows that, in answer to questions Nos.2 and 3, the said appellant has admitted the two quarrels between the parties and also has admitted his presence on the scene of occurrence at the time of occurrence. The defence plea that appellant No.1 took is that he lost senses at the beginning of the occurrence. This very plea not proved through any independent evidence.

7. So, prosecution has established guilty of convict/appellant No.1. In their statements, the eye-witnesses are stating that the target of firing by appellant No.1, was P.W.1 who admittedly escaped and instead a child Shaukat son of Sher Khan died receiving the bullet injuries from the firing of convict/appellant No.1. Moreover, we find mention of quarrel between the parties. So, the occurrence was result of spur of the movements and not pre-meditated. We have considered all aspects of the case and have come to the conclusion that we convert death sentence of convict/appellant No.1 into life imprisonment. Fine of Rs.200,000 (Two Lac) imposed through impugned conviction/judgment enhanced to Rs.700,000 (Seven Lac) and in default of the payment of the same, convict/appellant No.1 to further undergo rigorous imprisonment for seven years. Fine if recovered be paid to the legal heirs of the deceased. Moreover, conviction and sentence of convict/appellant No.1 for offence of section 13 of the Arms Ordinance upheld. Appellants Nos.2 and 3 acquitted from the case. Impugned order varied accordingly. Appeal accepted partly in the above terms. Reference under section 374, Cr.P.C. (Murder Reference No.5 of 2011), answered accordingly. This file be consigned to record. HBT/2/GB Order accordingly.