1994 P Cr (PLP)

RASHID AZIZ KHAN, J.

Liaqat Ali (32), Sakhawat (42) and Siddique (46) were sent up by Police Station Yazman, District Bahawalpur, for trial for an offence under section 302/307/34, P.P.C. Special Court No.6, Bahawalpur, vide its judgment, dated 24-11-1987, gave the benefit of doubt and acquitted Sakhawat and Siddique accused of all the charges. Liaqat Ali was, however, found guilty under section 302, P.P.C. and convicted and sentenced to death with a fine of Rs.50,000, or in default one year's rigorous imprisonment. It was further directed that the fine if recovered, half of it shall be paid to the legal heirs of the deceased as compensation. Liaqat Ali appellant was further convicted under section 307, P.P.C. to ten years' R.I. with a fine of Rs.25,000, or in default six months' rigorous imprisonment, for injuring Noor Muhammad P.W. He was further convicted under section 307, P.P.C. for making a murderous assault on Khuda Bakhsh P.W. to 10 years' R.I. with a fine of Rs.25,000, or in default six months' R.I. It was further directed that the fine if recovered half of it shall be paid to the injured and Khuda Bakhsh respectively. Convict has appealed. State has also filed an appeal challenging the acquittal of Sakhawat and Siddique in which notices to them were issued. This judgment shall dispose of both the matters.

2. According to the, prosecution story in brief as disclosed in the F.I.R. Exh.P.G., lodged by Khuda Bakhsh was to the effect that he with his father and four brothers, namely, Elahee Bakhsh, Ghulam Nabi, Habib Ullah and Abdul Hameed used to cultivate land together. On 29-5-1987, at about 8-30 a.m.. the first informant and his brother Elahee Bakhsh, Habib Ullah and Abdul Hameed went to the Village Mosque to offer Eid prayer. They were sitting in the Mosque when Liaqat Ali, Sakhawat and Siddique also came thereto offer Eid prayer. After a while Liaqat went up to the Imam Masjid to give donation. While he was coming back he intentionally touched the first informant with his foot. The first informant told him why he had done that when they were not on speaking terms; whereupon said Liaqat Ali slapped the first informant. Habib Ullah, a brother of the first informant got up in order to catch hold of Liaqat when Sakhawat and Siddique co-accused caught hold of Habib Ullah from his arm and Liaqat Ali took out a revolver and fired hitting on the front of his chest who fell down in the courtyard of the mosque. Liaqat Ali fired another shot at the first informant which missed him but hit one Noor Muhammad, who was standing by, on his chest who also fell down. Third fire shot was made at the first informant which missed because the first informant's brother Elahee Bakhsh gave a push to the arm of the assailant. In the meanwhile, people who had gathered at the spot got up and tried to catch hold of the accused persons, but Liaqat Ali pointing at the revolver forbade them from coming close and they ran away. The occurrence took place on 29-5-1987, at 8-30 a.m., in the village mosque. F.I.R. Exh.P.G, was lodged by Khuda Bakhsh, P.W.6, on the same day at 12 noon. It was recorded by Munawar Alam, Inspector, P.W.10. The place of occurrence was 24 kilometres from Police Station Yazman. Munawar Alam, Inspector, P.W.10 after recording the F.I.R., inspected the dead body and prepared injury statement Exh.P.K. and inquest report Exh.P.L., and sent the dead body for autopsy. He also prepared injury statement Exh.P.M. of Noor Muhammad P.W. and sent him for medical examination. Blood-stained mats P.3 and P.4 were secured from the spot vide memo. Exh.P.H. He arrested the accused on 30-5-1987. On 2-6-1987 Liaqat Ali accused led to the recovery of Revolver P.5 from his house which contained three empties P.6, 7 and 8, which were secured vide memo. Exh.P.J. He got the site plans Exhs.P.A. and PA./1 prepared from Draftsman and gave his notes in red ink thereunder. After usual investigation he challaned the accused. Dr. Sher-uz-Zaman, M.O. Tehsil Headquarter Hospital, P.W.5, on 29-5-1987, conducted the post-mortem examination of the dead body of Habib Ullah and found the following injuries on his person: -- (1) There was rounded wound of entrance which was 1 c.m. x 1 c.m. It was situated 8 c.m. below the lateral end of right clevicle above the nipple. The edges were inverted. Blackening and tattooing were present. (2) There was another wound which was an exit wound. It was 1/2 c.m. x 1 c.m. at the back of the left side of the upper part of chest, 14 c.m: below lateral part of left shoulder joint. The edges were averted. In his opinion the death had occurred because of fire-arm injury which was ante-mortem and sufficient to cause death in the ordinary course of nature. On the same day he had also medically examined Noor Muhammad P.W. and found the following injury:-- "One rounded wound of entrance 1 c.m. x 1 c.m. on the right side of upper part of his chest. It was caused by fire-arm."

3. The prosecution in support of its case produced ten witnesses in all. Muhammad Akram Sial, P.W.1 had prepared site plans Exhs.PA. and PA./1 on the direction of the police. Faqir Muhammad, Constable, P.W.2 had escorted the dead body to the hospital. The ocular account was furnished by Khuda Bakhsh, Noor Muhammad, Allah Diwaya and Elahee Bakhsh, P.Ws.6, 7 and 8, respectively. The case was investigated by Munawar Alam Leghari, P.W.10.

4. At the conclusion of the prosecution evidence appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. Liaqat Ali appellant in answer to a question further stated that one Mst. Amiran, niece of Khuda Bakhsh and Habib Ullah deceased was married to one Peer Bakhsh. Some differences arose between the spouses therefore, a suit for dissolution of marriage was filed by her and the appellant used to help her in pursuing the suit. In return a case under Hudood Ordinance was got registered by the ex-husband of Mst. Amiran Bibi. Ultimately, Mst. Amiran got divorced on paying Rs.5,000, to Peer Bakhsh, the former husband. Thereafter she married the appellant. On account of fear of the witnesses, they left the village. On the fateful day he had come to offer Eid prayer as well as to make efforts to effect a compromise. He further stated that he was grappled by the deceased and his brother and given fist and kick blows. In the commotion somebody fired hitting the deceased. He however, neither produced any defence evidence nor appeared in his defence on oath. It was contended by learned counsel for the appellant that the case against him was extremely doubtful. Submitted that the defence version found full corroboration from the prosecution story and the motive was on the prosecution side to give a beating to the appellant. The accused persons had no motive to commit the offence. Contended that in any case it was a case under section 304, P.P.C., for which the sentence already undergone would adequately meet the ends of justice. Contentions were opposed by learned counsel for the State.

5. We have heard the learned counsel and gone through the file. The occurrence took place inside the mosque. It was Eid day when all the witnesses had gathered to offer Eid prayer and in such circumstances their presence at the spot cannot be doubted. Noor Muhammad was also injured and blood stained earth was secured from inside the mosque. The witnesses were cross- examined at length. We have noticed that all of them have admitted that after the appellant had married Mst. Amiran Bibi he came to the village for the first time on the fateful day. It is also in evidence that the marriage in question took place more than a year before the present occurrence. The background of the enmity is established. We feel that reliance on the statements of the witnesses can safely be placed. Their presence at the spot is established and their statements inspire confidence. The last contention of learned counsel for the appellant however requires consideration which was to the effect that it was not a case in which capital punishment could be awarded. We have considered this aspect. The occurrence took place inside the mosque at the spur of the moment which was neither pre-planned nor the appellant had a motive to commit the murder. In 8 these circumstances, we feel the sentence of imprisonment for life would adequately meet the ends of justice. While altering the sentence from death to imprisonment for life, we dismiss the appeal. We have noticed that the appellant was also convicted under section 307, P.P.C. on two counts. He had C caused fire-arm injury to Noor Muhammad P.W. and on the other count he had made ineffective firing, we feel the conviction and sentence under section 307, P.P.C. about ineffective firing cannot be sustained. Therefore, the p conviction and sentence under section 307, P.P.C. regarding ineffective firing at Khuda Bakhsh, his appeal is accepted and he is acquitted. The conviction and sentence under section 307 P.P.C for injuring Noor Muhammad P.W., we maintain the sentence. However, the sentence of fine is reduced from Rs.25,000 to Rs.10,

000. Both the sentences shall run concurrently. He shall also be given the benefit of section 382-B, Cr.P.C. As far as State appeal is concerned, we have noticed that the only allegation against the respondents Shakhawat and Siddique is that they were present in the mosque on Eid day and when the first informant was given a slap the, deceased get up, they caught hold of him. This can hardly constitute E their common intention with the co-accused. Upon such an incident everybody present in the mosque would have got up. In the absence, of any other overt act, we feel the learned trial Court had rightly given the benefit of doubt to them. Therefore, the State appeal fails which is accordingly dismissed. N.H.Q./L-51/L Order accordingly.