1. ' MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.--- Appellant Abdul Waheed son of Atta Rasool along with -two co-accused namely Raiz-ur-Rehman son of Abdur Raheem and Khursheed Anwar son of Abdul Sattar was tried by learned Additional Sessions Judge, Mianwali for the murder of Hidayat Ullah in case F.I.R. No,217 of 1993 dated 11-8-1993 under section 302 read with section 109, P.P.C.
2. Registered at Police Station City Mianwali, who vide judgment dated 25-2-1999 while acquitting co- accused convicted the appellant under section 302(b), P.P.C. And sentenced him to death.
3. Appellant was also directed to pay Rs,50,000 (Rupees fifty thousand) as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default whereof to further undergo six months' R.I.
4. ' Feeling aggrieved by the impugned judgment the appellant filed criminal appeal (Criminal Appeal No,184 of 1999), whereas trial Court has made a reference (Murder Reference No,10.2 of 1999) seeking confirmation of death sentence as required under section 374, Cr.P.C. And complainant has filed criminal appeal against acquittal of respondents Faizur Raheem and Khursheed Anwar (Criminal Appeal No,381 of 1999). All these matters are being disposed of by this single judgment.
2. Hidayat Ullah was done to death in the shop of one Khalid tailor situated in lane of M.C. High School falling within the jurisdiction of Police Station City Mianwali on 11-8-1993 and case F.I.R. No,217 (Exh.P.C.) was registered upon the statement of Nawab Hussain son of Ghazi (P.W.5) cousin of the deceased.
5. ' Facts of the prosecution case as narrated in the F.I.R. Are that on 11-8-1993 at 11 a.m. Complainant along with Hidayat Ullah son of Ameer Abdulla (deceased) went to the shop of Khalid tailor. The deceased after removing his shirt had handed over the same to the tailor for alteration, when suddenly Abdul Waheed (appellant) being armed with .12 bore gun also came there and made straight fire which hit Hidayat Ullah on the right flank. Thereafter Abdul Waheed (appellant) while raising Lalkara ran away from the spot. The injured was removed to the hospital where he succumbed to the injuries. This occurrence was also witnessed by Singhar son of Ahmad Yar and Ghulam Muhammad son of Noor Muhammad. Statedly the said witnesses also informed the complainant that a short while before the occurrence Abdul Waheed appellant while armed with .12 bore gun, Faizur Raheem son of Abdur Raheem and Khursheed Anwar son of Abdul Sattar were standing in front of the shop of one Wazir son of Sanghara and were conspiring about the commission of this offence. Allegedly Faizur Raheem and Khursheed were asking Abdul Waheed (appellant) that he should murder Hidayat Ullah to avenge the insult.
6. ' The motive for this occurrence as narrated in the F.I.R. Was that about 5/6 months prior to the occurrence Hidayat Ullah and Abdul Waheed had quarrelled but matter was patched up due to the interference of the complainant and other respectables of the Bradari. Statedly to wreak the vengeance of said insult appellant had committed the murder of Hidayat Ullah.
3. On the same day at 12-45 p.m. Nawab Hussain reported the matter at the police station where Zulfigar Ali, S.-I. P.W.7 entered the formal F.I.R. Exh.P.C. And started the investigation. The Police Officer after inspecting the dead body of Hidayat Ullah prepared injury statement Exh.P.G., inquest report Exh.P:H. And sent the dead body to the mortuary for post-mortem examination. During the spot inspection he also collected the blood-stained earth vide recovery memo. Exh.P.F. After the post-mortem examination last-worn clothes of the deceased were also produced before him which were taken into custody vide recovery memo. Exh.P.A. During the investigation on 13-8-1993 he arrested Faiz Raheem and Khursheed Anwar.
7. ' This case was also investigated by Zulfigar Ali S.-I./S.H.O. P.W.B. On 2-9-1993 this Police Officer got prepared scaled site plan through draftsman. On 4-9-1993 he moved application Exh.P.J. For the issuance of warrants of arrest of Abdul Waheed appellant and on the same day the required warrants Exh.P.J/1 were issued. Thereafter on 11-9-1993 appellant Abdul Waheed was arrested and during his personal search .12 bore gun P.3 along with three cartridges P.4/1-3 were recovered from him and the same were taken into possession vide recovery memo. Exh.P.D. Finally the challan was submitted after complying with the legal formalities.
8. ' In order to prove its case before the trial Court' prosecution produced ten witnesses.
9. ' Sana Ullah, Constable P.W.1 took the dead body to the mortuary for post-mortem examination and after the same produced last-worn clothes of the deceased before the Investigating Officer. He also took the parcel (case property) to the office of Chemical Examiner and delivered the same intact. Muhammad Shafiq, Draftsman P.W.2 prepared the scaled site plan Exh.P.B. And Exh.P.B./1. Gul Hameed, H.C. P.W.3 kept the parcel (case property) in Malkhana for safe custody and later on delivered the same to the constables for onward transmission to the relevant offices. Muhammad Mumtaz P.W.4 identified the dead body of Hidayat Ullah deceased at the time of post-mortem examination. Nawab Hussain P.W.5 and Ghulam Muhammad P.W.6 being the eyewitnesses of the occurrence while supporting the prosecution case narrated the circumstances under which Hidayat Ullah was done to death by the appellant. Both of them were put to the test of lengthy cross-examination but they remained steadfast. Zulfiqar Ali, S.-I. P.W.7 and Zulfiqar Ali, S.-I./S.H.O.
10. P.W.8 conducted the investigation of this case as narrated earlier. Abdul Rauf, D.F.C. P.W.9 was entrusted with the summons to procure the attendance of Dr. Munawar Hussain Tabbasam who had conducted the post-mortem examination. The witness reported that the said doctor had proceeded abroad and there was no chance of his earlier return to Pakistan. Muhammad Arif, Dispenser/Record Keeper P.W.10 being familiar with the handwriting of Dr. Munawar Hussain Tabbasam proved the post-mortem report Exh.P.N. And sketches Exh. P. N.1-2 prepared by him.
11. ' Learned S.P.P. Tender in evidence report of Serologist Exh.P.N., that of Chemical Examiner Exh.P.O.
12. And closed the case for the prosecution.
13. ' Learned trial Court also examined appellant and his co-accused under section 342, Cr.P.C. While answering to the question "Why this case is against you and why the P.Ws. Have deposed against you"?, appellant replied as under:-- "Being a student, I was member of a secret society who used to furnish information against the drug pushers and heroin sellers. The complainant, deceased and his entire family are involved in drug trafficking and numerous cases were registered against them. They suspected that I have furnished information to the authorities regarding their heroin smuggling, therefore, I was implicated in this case. The deceased had died under mysterious circumstances in the back portion of the shop. I had no personal grudge or enmity against him."
14. ' Appellant did not make any statement under section 340(2), Cr.P.C. However, he tendered in evidence certified copies of F.I.Rs, Exh.D.B. And Exh.D.B./1-37. He also placed on record his school leaving certificate Exh.D.C., that of his co-accused Faizur Raheem Exh.D.D. And certificate of Board of Intermediate and Secondary Education, Sargodha, of his co-accused Khurshid Ahmed Exh.D.E.
15. ' Learned trial Court after appraisal of evidence vide judgment dated 25-2-1999 convicted and sentenced the appellant as narrated earlier.
4. Learned counsel for the appellant while challenging the legality of the impugned judgment submitted that the F.I.R. In this case was lodged after the delay of one hour and forty-five minutes and this time was consumed for deliberation and consultation. It was argued that this occurrence did take place in the shop of one Khalid tailor who was absolutely independent and disinterested witness but the said witness was never produced either before the Investigating Agency or before the trial Court but learned trial Court while ignoring this aspect of the case had erroneously relied upon the statements of two interested witnesses. It was further argued that trial Court had already disbelieved the ocular account qua the co-accused of appellant and this evidence against appellant in the absence of any corroboration could not be relied upon. Learned counsel while concluding his submissions finally argued that in the circumstances of the case the trial Court while awarding sentence had taken a harsh view. Conversely learned counsel for the complainant as well as State while supporting the impugned judgment argued that this occurrence took place during the bright hours of the day, parties were known to each other, thus, there was no question of mistaken identity or substitution. It was further argued that eye-witnesses had no malice against the appellant. After the occurrence matter was reported promptly and there was no chance of concoction and fabrication. It was finally argued that in the circumstances the impugned judgment needs no interference.
5. Learned counsel for the parties have been heard at length and with their assistance we have minutely gone through the record of this case.
16. ' Hidayat Ullah was done to death during the bright hours of the day at the shop of one Khalid tailor who had gone there for the alteration of his shirt. This occurrence was witnessed by Nawab Hussain P.W.5, Ghulam Muhammad P.W.6 and Singhar P.W. Nawab Hussain P.W.5 being a cousin of the deceased had accompanied him to the shop of Khalid tailor who was his neighbour. Ghulam Muhammad P.W.6 along with Singhar (given up P.W.) being the residents of the area were present in the Bazar near the shop of Khalid tailor. The presence of all the said witnesses at the relevant time in the circumstances of this case seems to be natural and plausible. Both Nawab Hussain P.W.5 and Ghulam Muhammad P.W.6 while deposing before the trial Court had supported the prosecution case and unanimously narrated the circumstances under which appellant had committed the murder of Hidayat Ullah deceased. Both of them were put to the test of lengthy cross-examination but there is nothing on the record to doubt their credibility or to say that they had any malice, grievance or grouse against the appellant to falsely implicate him in this case.
17. Evidence of both the said eye-witnesses depicts a bright and vivid picture of the occurrence.
18. Learned counsel for the appellant while challenging the credibility of both the said eye-witnesses argued that this occurrence took place in the presence of one Khalid tailor but the said witness was never produced either before the Investigating Agency or before the trial Court and in the circumstances it would not be safe to rely upon the statement of above-said interested witnesses.
19. We are afraid contentions of learned counsel have no force. Failure of prosecution to cite or examine any witness from the vicinity of the place of occurrence in the circumstances of this case is of no significance. It is a matter of common knowledge that in our society people from the locality generally hesitate to come forward as a witness in such-like cases because of the fear of accused party.. Even otherwise the name of this witness finds mention in the calendar of witnesses but he was given up by the prosecutor as having been won-over by the accused party.
20. ' The ocular account also finds corroboration and support from the medical evidence i,e, post- mortem report of the deceased. The location, nature and duration of injuries as narrated by the said eyewitnesses stands affirmed by the medical reports.
21. ' Another important factor which has persuaded us to accept the ocular account is the promptness in lodging the F.I.R. The matter was reported to the police within two hours after the occurrence. The F.I.R. Contains all the minor details of the occurrence. The promptness in lodging the F.I.R. Normally rules out the possibility of consultation and fabrication. Even otherwise in a case of single accused substitution by leaving the real culprit by the kith and kin of the deceased is a rare phenomenon.
22. ' As far the quantum of sentence of the appellant is concerned after anxious consideration and deliberation we are of the view that in the circumstances the trial Court should not have awarded the maximum sentence of death to the appellant. Firstly, there is no evidence on the record to show that weapon of offence allegedly recovered at the instance of appellant was ever used during the occurrence. Thus, the recovery evidence relied upon by the prosecution is of no significance. Secondly, at the time of occurrence petitioner was teenager. Thirdly appellant had fired only once whereas he could have fired more shots. Fourthly, the motive for this occurrence as alleged in the F.I.R. Was that five/six months prior to the occurrence deceased and appellant had quarrelled but the matter was patched up by the interference of the respectables. Allegedly in order to wreak the vengeance of said insult, appellant had committed the murder of Hidayat Ullah.
23. We have observed that the evidence of prosecution is absolutely silent about the cause of said quarrel, similarly no untoward incident happened in between the said five to six months and what was the recent cause for the murder is shrouded in mystery.
24. ' The crux of the above discussion is that this appeal has no merits, the same stands dismissed, however, sentence of appellant is reduced to imprisonment for life with the benefit of section 382- B, Cr.P.C. Appellant shall also pay compensation to the legal heirs of the deceased on the term3 and conditions as fixed by the trial Court. Death sentence awarded the appellant is not confirmed and murder reference i,e, Murder Reference No,102 of 1999 is answered in the negative.
25. ' As the appellant (i,e, Criminal Appeal No,381 of 1999) against the acquittal of Faizur Raheem and Khursheed Anwar is concerned, we have observed that the allegation against them was only that they had abetted the commission of this offence. The learned trial Court while disbelieving the prosecution evidence to their extent had extended the benefit of doubt in their favor. Learned counsel for the appellant had failed to point out any misreading or non-reading of evidence by the trial Court while passing the impugned judgment. The reasons given by the trial Court while acquitting respondents are perverse, artificial or arbitrary and the impugned judgment needs no interference by this Court in its appellate jurisdiction. Accordingly Criminal Appeal No,381 of 1999 also stands dismissed.