' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,262 of 1999 filed by Shahzad Ahmad Khan, appellant, who was convicted under section 302, P.P.C. And sentenced to death with further direction to pay Rs,50,000 as a compensation, in default six months' S.I. By learned Sessions Judge, Narowal vide judgment, dated 10-3-1999.
' Criminal Appeal No,393 of 1999 filed against the acquittal of Ibrahim by the complainant alongwith Murder Reference No,201 of 1999 shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 5 p.m. On 8-11-1994 at a distance of 14 Kilometers from Police Station, Zafarwal while the matter was reported to the police through written complaint Exh.P.D. At 6 p.m. The same evening at Civil Hospital and the formal F.I.R. Exh.P.D./1 was recorded by Ghafoor Hussain, Head Constable.
3. Briefly stated the facts of the case are that Noor Ahmad, complainant alongwith Ghulam Rasool and Asghar Ali after a visit of Mela Mandi reached Chowk Tapaila and boarded a wagon which used to ply between Tapaile and Qila Sobha Singh. The wagon was parked in the Chowk. According to complainant, some women were also sitting in the wagon. At about 5 p.m. Sadiq Ali (deceased) his real brother who was employed as a clerk in the office of S.P., Narowal also boarded the wagon for going home after having come from his office through a bus in Chowk Tapaila. In the meanwhile, the driver of the wagon requested some of the passengers to get down and push the wagon for its start and when he alongwith the P.Ws. Had boarded down the wagon while his brother kept sitting on right side in the wagon on his seat, Shahzad and Maqsood armed with fire- arms came in the Chowk on a motorcycle. On their arrival, Shahzad fired a shot on Sadiq which hit on his back and little up the buttocks. Ibrahim accused raised Lalkara and made fires while saying that Sadiq be taught a lesson for registration of a case of dacoity and also for injuring Shahzad.
Sadiq in his way to hospital succumbed to his injury.
' The motive alleged was that in February, 1992 Sadiq Ali alongwith Zahoor Ahmed were coming home at night time while Shahzad and Ibrahim were looting people and in the said occurrence of looting. Zahoor Ahmad brother of the complainant and Shahzad was injured, both Shahzad and Ibrahim were challaned in that case, hence they bore a grudge and committed the murder of Sadiq deceased.
4. Investigation of the case was taken over by Mushtaq Ahmad, S.-I. P.W.10. He, after registration of the formal F.I.R. Went to Hospital, examined the dead body of the deceased, prepared injury statement Exh.P.H./3 and inquest report Exh.P.G. Blood-stained earth was taken into possession vide memo. Exh.P.E. Site plan Exhs.P.F. And PF/1 were got prepared from Arif Ijaz, Draftsman and after completion of investigation, both the 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 District Attorney tendered in evidence report of the Chemical Examiner Exh.P.O. Report of the Serologist Exh.P.P. Report of the Forensic Science Laboratory and closed the case of prosecution.
After that, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded false implication and produced Muhammad Younas as D.W.1. After conclusion of the trial Ibrahim accused was acquitted while Shahzad Ahmad was convicted and sentenced as stated above.
6. Learned counsel for appellant Shahzad Ahmad submits that P.Ws 6 and 7 are chance witnesses, their meeting with the deceased was also per chance, both the P.Ws. Are closely related to the deceased, no independent witness was cited or produced by the prosecution though the occurrence had taken place in a Chowk; motive is not of much importance because it is a double edged weapon; no description of the motorcycle was given in the F.I.R. The appellant was whether driving the motorcycle or was sitting on the pillion seat remained in mystery; there is no mention of motorcycle or places of presence of witnesses in the site-plan Exh.P.F./1; if the motorcycle is vanished, then the presence of the appellant Shahzad cannot be there because he was disabled; there is distance of 3 feet between point A to B; there is over writing of figures 3 feet; it is a case of two versions, Muhammad Younis, the driver of the wagon who was most independent and natural witness did not support the case of prosecution rather appeared as D.W.1 and if both the versions are put in juxta position, the version of the defence seems to be more plausible and convincing one, no crime-empty having been recovered from the spot, recovery of fire-arm on pointation of the appellant is of no avail to the prosecution, there is no independent corroboration from any independent source; Zahoor though was mentioned as a witness in the F.I.R. But he was not produced by the prosecution and that the case is shrouded in mystery. Concluding his submissions, learned counsel submits that Muhammad Younis, the driver of the wagon was the most natural and independent witness but he did not support the case of prosecution rather appeared as D.W.1.
7. On the other hand, learned counsel for complainant submits that it was a broad daylight occurrence; parties were known to each other; there was no question of mistaken identity, it was a case of promptly lodged F.I.R. Motive is admitted by the appellant accused, he had taken the revenge for facing trial in a case of dacoity and amputation of his leg and that the prosecution has been successful in proving its case against the convict appellant.
8. Learned A.A.-G. Adopts the arguments advanced by learned counsel for the complainant.
9. We have heard learned counsel for the parties at length and have gone through the record. In the instant case, the occurrence had taken place at 5 p.m. On 8-11-1994. It was broad daylight. The matter was reported to the police in Civil Hospital, Narowal at 6 p.m. And formal F.I.R. Was recorded at 7-5 p.m. On the same evening though the distance between the place of occurrence and police station was 14 Kilometers, so it was a case of promptly lodged F.I.R. It was Shahzad Ahmad Khan, appellant who according to F.I.R. And two eye-witnesses namely Noor Ahmad and Ghulam Rasool, P. Ws. 6 and 7 who fired at the deceased and the same proved fatal. Both the eye-witnesses though closely related to the deceased being brother and maternal uncle but had no enmity whatsoever against the appellant. Mere relationship of a witness with the deceased is no criteria to discard his testimony if it is otherwise trust worthy. The testimony of both these witnesses has been fully corroborated by the medical evidence. The distance between the deceased and the assailants according to site plans prepared by the draftsman is 3 feet which also lends support to the post-mortem report because there is burning on the injury, Both the eye-witnesses cannot be termed as chance witnesses for the reason that it has not been denied by the defence that there was no Mela (fair) and the people in the village and even in cities do come to attend the fair and it was natural on the part of two eye-witnesses to have come to attend the fair and while going back, they left the bus on which they had come from fair because the bus had to go to Zafarwal and from the Chowk they had to change the wagon for going to Qila Sobha Singh where they were residing. Further corroboration can be sought from the motive. The motive behind the present occurrence was that in the month of February, 1992 Sadiq Ali (deceased) and Zahoor Ahmad were coming to their houses at night when Shahzad and Ibrahim were busy in looting the people, Zahoor and Shahzad appellant were injured and were also challaned in a case of dacoity and due to this grudge, Sadiq Ali was murdered. This motive has been admitted by convict appellant in his statement under section 342, Cr.P.C. While giving reply to Question No,7 though with some modification that a compromise has been arrived at between the parties but no documentary proof was produced on record. It is a big circumstance which lends support to the case of prosecution.
' So far as D.W.1 Younas is concerned, he though has appeared in defence of the convict appellant but he took somersault from the earlier statement made by him before the Investigating Officer when the Investigating Officer visited the spot on the very first day of occurrence. We have also taken aid from the statement of Younas as provided under section 172, Cr.P.C. This Younas did not appear before any Investigating Officer though 3 or 4 investigations were carried out later on. So, we discard his evidence.
' After having heard learned counsel for the parties and going through the evidence on record, we are of the considered opinion that the prosecution has been successful in proving its case against the appellant Shahzad to its hilt beyond any shadow of doubt. However, as far as quantum of sentence is concerned, it is to be noted that in the occurrence which became the motive of the instant case Shahzad appellant lost his leg as the same was amputated. The said amputated leg kept him reminding to take the revenge. A case for dacoity was also registered against him only for the reason that Sadiq deceased was an employee in the Office of S.P., Narowal. It is also a case of single shot. In PLD 1996 SC 122, their Lordships of the Honourable Supreme Court treating single shot alongwith other circumstances to be mitigation reduce the sentence of death to imprisonment for life. Taking the above noted facts as mitigating circumstance we though maintain conviction of the appellant under section 302(b), P.P.C. But alter the sentence of death into one imprisonment for life with the benefit of section 382-B, Cr.P.C. The sentence of compensation is, however, maintained.
The death sentence of Shahzad Ahmad Khan, appellant is not confirmed and murder reference is replied in the negative.
' So far as Criminal Appeal No,393 of 2003 is concerned, it was an appeal against acquittal of Ibrahim, respondent. The learned Division Bench on 8-6-1999 passed the following order:-- "First appeal against conviction. Admit.
(2) Send for the record. To be heard alongwith Criminal Appeal No,262 of 1999."
' The role attributed to Ibrahim was that of Lalkara. He was found innocent during many investigations. In the facts and circumstance of the case and the role ascribed to respondent, there is no merit in this appeal which is dismissed.