' KHAWAJA MUIHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,22 of 1999 filed by Mukhtar Ahmad alias Mukhi, appellant, who was convicted under section 302(b) and sentenced to death with further direction to pay Rs,50,000 as compensation, in default 6 months'
S.I. By learned Additional Sessions Judge, Sargodha vide judgment, dated 13-1-1999.
' Murder Reference No, 71 of 1999 for confirmation or otherwise of death sentence of convict appellant shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 5-15 a.m. On 29-4-1996 within the revenue estate of Chak No,20 at a distance of 5 kilometers from Police Station Kotmoman while the matter was reported to the Police at Police Station by Hassan Abdullah at 6 a.m., the same day.
3. Briefly stated the facts of the case are that on 29-4-1996, Hassan Abdullah, the complainant and his father went to say Fajar prayer in the mosque. After saying prayer, the complainant alongwith his father Muhammad Abdullah, Akram and Ghulam Hussain reached near their house at 5-15 a.m, they witnessed that Mukhtar alias Mukhi armed with a .12 bore gun was standing in the outer verandah. Sooner Muhammad Abdullah entered in the verandah, Mukhtar raised Lakara that a lesson would be taught for pursuing the cases against him (Mukhtar) and simultaneously fired a shot, which hit on the left upper arm and then entered into the chest. Muhammad Abdullah fell down and succumbed to the injuries at the spot. Hassan Abdullah the complainant, Akram and Ghulam Hussain allegedly witnessed the occurrence. Six persons were made accused of abetment.
' The motive alleged was enmity between the parties on murder cases.
4. Investigation of the case was taken over by Inspector Khadim Hussain (P.W.I1). He after registration of the F.I.R. Went to the spot, took into possession the dead body of Muhammad Abdullah, prepared injury statement Exh. P. D. , inquest report Exh . P. E. , from the spot took into possession the bloodstained earth vide memo. Exh.P.B. And on 8-5-1996 arrested Zafar lqbal, Khalid Mahmood, Muhammad Arshad, Tahir Mahmood, Sarfraz and Iftikhar. Mukhtar appellant was arrested on 13-5-1996. This accused while in Police custody on 14-5-1996 led to the recovery of .12 bore gun P.I which was secured vide memo Exh.P.F. On the same day Khalid Mahmood accused was arrested. After completion of investigation. All the seven accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 11 witnesses in all. Then the learned DDA tendered in evidence Exh.P.L., report of the Chemical Examiner, Exh.P.M, report of the Serologist and copies of different F.I.Rs, and closed the case of prosecution. Statements of the accused recorded under section 342, Cr.P.C. In which they pleaded false implication. After conclusion of the trial, all the six accused except Mukhtar the present appellant, the remaining were acquitted.
6. Learned counsel for the appellant in support of this appeal submits that the occurrence having taken place in early hours of the morning, it was an unwitnessed occurrence, allegedly there were 3 eye-witnesses who witnessed the occurrence but they did not try to apprehend the appellant, except the complainant, none from the two eyewitnesses, was produced before the trial Court, there is conflict between ocular account and the medical evidence, the doctor who had conducted postmortem examination on the dead body of the deceased had demolished the case of prosecution, stamps on the inquest report were affixed earlier and then it was prepared, no crime empty was recovered from the spot, the appellant had no direct motive to commit the murder of the deceased, it was a case of single shot and that at time of occurrence the appellant was less than 15 years of age as is proved from Exh. P . G , School Leaving Certificate. Further submits that close relations of the complainant are highly placed officers in the Government and for this reason, the appellant has been falsely involved in this case. Concluding his submissions, learned counsel submits that prosecution has miserably failed to prove its case against the appellant and he is entitled to acquittal.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that there it was a case of promptly lodged F.I.R.; it is a case of single accused, there was no question of substitution, ocular account is fully corroborated by medical evidence, the Court has to see the quality and not the quantity of evidence and that Juvenile Justice System Ordinance, 2000 is not to operate retrospectively hence the offence having taken place in 1999, this Ordinance would not be applicable to the instant case. He has relied on 2001 SCM R 177 and 2002 SCM R 1455.
According to learned counsel, there is no mitigation in favour of the appellant.
8. We have heard learned counsel for the parties and have gone through the record. In the instant case, 7 accused were tried in all. Six accused of abetment were acquitted by the trial Court. A Division Bench of this Court dismissed appeal against their acquittal bearing No,84 of 1999. The occurrence had taken place at 5-15 a.m. While the matter was reported to the Police at police station at 6 a.m. On the same day though distance between the place of occurrence and the police station A was 5 kilometers so it was a case of promptly lodged F.I.R. The appellant was the only accused present at the spot and fired a single shot, which firstly hit on the upper left arm and then went to chest cavity. The ocular account is fully corroborated by medical evidence because distance given between the deceased and the appellant was 5 feet. To fire a shot, one has to stretch the arm and then the length of the barrel is also to be calculated, so there has to be blackening and it so happens when the shot is fired from a close range. There is thus no conflict between ocular account and the medical evidence.
' As far as non-production of two eve-witnesses before the trial Court is concerned, the Court has to see the quality and not the quantity of evidence. Moreover, Ghulam Hussain an eyewitness died before commencement of the trial. Akram the other eye-witness was given up. The solitary statement of Hassan Abdullah, complainant inspires-confidence is duly corroborated by medical evidence. Despite lengthy cross-examination, defence failed to shatter the testimony of complainant. An eye-witness examined as P.W.10. The complainant had no enmity whatsoever against the appellant to falsely implicate him.
' For what has been discussed above, we are of the considered opinion that the prosecution has been successful in proving its case against the appellant beyond any shadow of doubt. However, there are some mitigating circumstances which are mentioned as under:--
(i) The motive set up by the complainant in the F.I.R. Was that were cases of murder between the parties but there was no case got Registered either by the complainant party against the appellant or the appellant against the complainant party, so the motive alleged by the prosecution is shrouded in mystery.
(ii) No doubt Juvenile Justice System Ordinance, 2000 is not to operate retrospectively but according to Exh. D.G., the Matriculation Certificate, the appellant had born on 1-4-1981 and had appeared in matriculation examination in 1997 while in jail, so there is doubt whether the appellant was 18 years of age or not at the tithe of occurrence. Moreover the prosecution never rebutted this certificate.
(iii) It is a case of single shot. In PLD 1996 SC 122 alongwith, other factors, single shot was also considered to be a mitigating circumstance.
(iv) In F.I.R., there was no mention that the appellant had concealed himself at the time of occurrence but before the trial Court it was stated that appellant had concealed himself, so it was a dishonest improvement on the part of the complainant.
(v) As far as recovery of gun from the appellant is concerned, it is of no help to the prosecution because no crime empty was recovered from the spot.
' There being mitigating circumstances enumerated above, through conviction of the appellant under section 302(b) is maintained but the sentence of death is reduced to imprisonment for life' with the benefit of section 382-B, Cr.P.C. The sentence of compensation and in default thereof is maintained. The death sentence is thus NOT confirmed and Murder Reference is replied in the NEGATIVE.
Sentence reduced.