2002 P Cr (PLP)

4. After recording the above statement Exh.P.C. of the complainant, Muhammad Sadiq Alvi, S.‑I./S.H.O. P.W. 12 proceeded to the place, of occurrence. He made recoveries from the spot.. The significant among those is the recovery of 10 empties cartridges of .12 bore gun, three empty cartridges of .7 mm Rifle from the watercourse while 22 empty cartridges of .12 bore gun and eight empty cartridges of .7 mm Rifle from the fields situated at a distance of 2 and 2‑1/2 acres from the path along which occurrence took place, as such, the total number of .12 bore empties came to 32 i.e. Exh.P.13/1‑32 and 11 empties of .7 mm Rifle i.e. Exh.P.14/1‑11 were made into sealed parcels. Recovery memo. was not brought on the file. He arrested seven accused‑persons including Khudadad appellant on 12‑8‑1994 i.e., about two months after the occurrence. The accused‑persons led to recovery of their respective weapons. Mumtaz accused led to recovery of .12 bore gun P.8 which was lying at the Dera of Muhammad Anwar appellant. Khudadad appellant led to recovery of .7 mm Rifle P.9 from a room adjacent to the Baithak at the Dera of Anwar accused which was taken into possession vide memo. Exh.P.J. Muhammad Anwar appellant was arrested by Khalid Mahmood, S.‑I: P.W.13 on 7‑8‑1994 from his Army Unit located in District Kotli, Azad Kashmir. After his arrest, he was produced before Muhammad Siddiqi, S.H.O., for further investigation. Muhammad Anwar led to recovery of .12 bore gun P.6 from his residential Dera situated in Jahaneywala, which was secured vide memo. Exh.P.G. The Investigating Officer after completing other formalities of the investigation submitted challan against 16 persons and they were sent up to face trial in the Court of Mian Jalal‑ud‑Din Akbar, Additional Sessions Judge, Sargodha. The learned trial Judge convicted Muhammad Anwar and Khudadad appellants, as noted above, while rest of the accused were acquitted of the charge.

5. The prosecution in support of its case examined 13 witnesses. Dr. Ehsan Elahi P.W.1 conducted post‑mortem examination and observed the following injuries on the person of Muhammad Nawaz deceased‑aged about 27 years:‑‑ (1) A fire‑arm wound"of entrance 1‑1/2 x 1‑1/2 c.m. with inverted and contused edges on outer and left side of chest 6 c.m. below and outer to left nipple going into the chest cavity. (2) A fire‑arm wound of entrance 1‑1/2 x 1 c.m. with contused and inverted edges on back and left side of lower part of chest 8 c.m. from midline. (3) A fire‑arm wound of entrance 1‑1/2 x 1‑1/2 c.m. with inverted and contused edges on back and lower one‑third part of right upper arm. (4) A contusion mark 6 x 6 c.m. just above and outer to right nipple. Injuries Nos.1 to 3 were caused by fire‑arm whereas injury No.4 was in continuation of injury No.1. All the injuries were ante‑mortem and injuries Nos. 1 and 2 were held to be sufficient to cause death in the ordinary course of nature.

6. The prosecution case mainly hinges on the testimony of eye witnesses' account which was furnished by Mumtaz P.W.4. He reiterated the statement already made by him in Exh.P.C. before the police. He was subjected to an extensive cross‑examination but he stuck to the statement made by him during examination‑in‑chief. P.W.6 Sultan is another P.W. He made a brief statement but as regards attributions of fire‑arm injuries, he supported the statement made by complainant Mumtaz P.W.4. P.W.9 is a witness of conspiracy hatched by the co accused of the appellants. Since they have been acquitted, the statement of this, witness is not of much importance. Umar Draz P.W.10 is a witness who attested the various recoveries effected from the accused persons and also from the appellants Muhammad Anwar and Khudadad. The rest of the witnesses are more or less formal in nature and they were examined to prove and endorse various functions performed during investigation and also to provide necessary links in the prosecution evidence in order to prove the guilt of the accused persons. After 13 prosecution witnesses were examined, the learned prosecutor tendered in evidence the report of Forensic Science Laboratory Exh.P.R. and with that closed the case of the prosecution.

7. Thereafter, the accused persons were examined under section 342, Cr.P.C. Muhammad Anwar as well as Khudadad appellants were also examined. The incriminating evidence brought on record was put up to them. Anwar accused denied the various allegations levelled against him and on a question as to why the witnesses deposed against him, he answered that due to enmity false statements had been made by them. He declined to appear as his own witness as envisaged by section 340(2), Cr.P.C. No evidence in defence was produced either. Similarly, Khudadad appellant whose age was described as 19 years also denied all the allegations made against him. He denied the recovery of any weapon of offence and also of the empties which were described to have been fabricated. He pleaded that he was implicated on the ground of enmity. However, he did not appear as his own witness under section 340(2), Cr.P.C. nor he led any evidence in his defence.

8. As it is evident from the narration of the facts as made by the complainant in Exh.P.C. Large number of accused persons were involved in commission of the offence. The occurrence took place at about 9‑00 p.m. i.e. after sunset. According to the complainant, the accused persons were identified in the moonlight which according to the lunar calendar happened to be 8th of the month. Apart from that, the complainant claimed to have seen the assailants in the light of the torch held by him at the time of occurrence. The details relating to respective participation of various accused persons have been given in the F.I.R. which were reiterated by the complainant Mumtaz and supported by Sultan P.W.6.

9. The resume of the statements made by the witnesses and also as emerged from the prosecution story given in the F.I.R" three accused persons were specifically attributed fire shots. Aqwar appellant was stated to be armed with a shotgun and he fired a shot hitting Muhammad Nawaz deceased who is son of the complainant at his back. This injury has been described by the Doctor as a fire‑arm wound of entrance 1‑1/2 x 1 c.m. with contused and inverted edges on back and left side of lower part of chest. The other injuries have been atitibuted to Yara who was armed with a shortgun. He fired a shot hitting Muhainmad Nawaz at his upper arm and according to Doctor it was a wound of entrance 1‑1/2 x 1‑1/2 c.m. with inverted and contused edges on back dnd lower one‑third part of right upper arm. The third accused‑person was Muhammad Hayat who was also armed with a shotgun. He inflicted a fire‑arm injury on Muhammad Nawaz at his chest which as per medical evidence is ' a wound of entrance 1‑1/2 x 1‑1/2 c.m. with inverted d1id contused edges on outer and left side of chest. Although in the opinion of the Doctor P. W.1, injuries assigned to Anwar" Yara and Muhammad Hayat accused have been declared to be fatal yet the learned trial Judge after trial held Yara and Muhammad Hayat as not guilty and they were acquitted of the charges against them. The main consideration weighed with the learned trial Judge for not recording conviction of the two accused persons i.e. Yara and Hayat is that they had been found to be innocent during course of investigation, therefore, benefit of doubt qua their involvement in the case was extended to them. As regards Muhammad Anwar right from the beginning, he is alleged to be armed with the gun and fired a shot hitting Muhammad Nawaz deceased on his back. The same position remained during trial. Both the witnesses unequivocally implicated Muhammad Anwar as an accused having fired at the deceased. According to the Doctor, the injuries caused by Anwar and alleged to have been caused by Hayat, both were declared 'to be dangerous to i. e. All the three fire‑arm injuries on the person of the deceased hive almost the same dimension and the other description indicates that they have been caused by pellets. Neither of the injuries appear to have been caused by bullet. As large number of the accused‑persons were involved which is supported by the fact that 32 empty cartridges of .12 bore and l I empty cartridges of .7 MM Rifle were recovered but the fact remains the manner in which the occurrence took place and the time at which it happened, it was perhaps not possible for the complainant and other witnesses to have identified all the assailants or members of the unlawful assembly with absolute certainty or with precision. The learned trial Judge, therefore, proceeded to grant benefit of doubt to them and they were acquitted of the charge. Muhammad Anwar appellant fired a straight shot on the person of deceased had been picked up as a main accused and he could have possibly been picked up being the main person who fired a fatal shot. The witnesses have made consistent statements qua his involvement. Apart from that, the recovery of various fire‑arms used in the commission of the offence was effected from his Dera. The conviction of Muhammad Anwar, therefore, appears to be well‑founded and the same, as such, is upheld and maintained.

10. As regards quantum of punishment, we have examined the relevant circumstances and we find that according to prosecution itself, three persons were accused to have fired at the deceased, as noted above, they are Anwar, Hayat and Yara. Although according to Doctor the injury caused by Hayat and Anwar have both been held to be fatal yet the fact remains that the deceased received fire‑arm wounds and each of the injury would have contributed towards his death. Two of the co‑accused have been acquitted as‑ they were found to be innocent during investigation. Large number of persons, according to prosecution, were together and proceeded to mount an attack. Except the two appellants, the rest of the accused‑persons could not be proved beyond doubt to be the participants. All these facts when assessed and weighed in order to determine the question of sentence, imposition of extreme penalty of death does not appear to be justified, therefore, the alternate sentence provided in this behalf i.e. imprisonment for life is substituted with the sentence of death.

11. Coming to the case of Khudadad, no injury has been attributed to him on the person of the deceased. Although the learned counsel for the complainant has argued that his participation in the occurrence has been established through recovery of weapon and its matching with the empties but various co‑accused against whom similar allegations have been made and similar evidence had been adduced have been granted the benefit of doubt by the learned trial Judge, therefore, it would be improper rather unsafe to discriminate his case from his co‑accused against whom similar allegations have been made. Out of abundant caution, in the interest of safe administration of justice, the benefit of doubt is extended to him, therefore, he is acquitted of the charge against him.

12. As a result of above discussion, the appeal to the extent of Muhammad Anwar is dismissed. His conviction under section 302(b), P.P.C. is maintained. However, his sentence of death is converted to that B of imprisonment for life. He had been ordered to pay Rs.50,000 as compensation to the legal heirs of Muhammad Nawaz deceased. The same is enhanced from Rs.50,000 to Rs.1,00,000 (Rupees one lac) which will be recovered as arrears of land revenue and in default thereof he will undergo R.I. for four years. The benefit of section 382‑B, Cr.P.C. is extended. The appeal to the extent of Khudadad appellant is allowed and he is acquitted of the charge against him. He is on bail and discharged from the bail bonds.

13. Criminal Appeal No.995 of 1996 against the acquittal of the co accused, for various reasons enumerated above, is dismissed.

14. Through Criminal Revision No. 91 of 1997. a grievance has been i expressed that amount of compensation is inadequate. The prayer is C reasonable. The amount of compensation of Rs.50,000 is enhanced to Rs.1,00,000 (Rupees one lacy. The criminal revision is, therefore, partly allowed to the extent of enhancement of compensation.

15. The sentence of death is not confirmed. Murder Reference No.296 of 1996 is answered in the negative. J.A.M./M‑874/1 Order accordingly.