' ASIF SAEED KHAN KHOSA, J.---Ghulam Mustafa appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment, dated 10-10-2000 handed down by the learned Additional Sessions Judge/Special Judge Court, Suppression of Terrorist Activities, Mianwali and was sentenced to death and to pay a sum of Rs.1,00,000 to the heirs of Muhammad Hanif deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for six months. The benefit under section 382-B, Cr.P.C. Was extended to the appellant. A brother and co- accused of the appellant namely Muhammad Refique had become a proclaimed offender and, thus, his case was separated by the learned trial Court from that of the appellant. The appellant has challenged his conviction and sentence before this Court through the present appeal and Saleh Muhammad complainant has filed Criminal Revision No.802 of 2000 seeking enhancement of the amount of compensation payable by the appellant. We have heard both these matters together and we propose to decide the same together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Saleh Muhammad complainant was an agriculturist by profession and was a resident of Dera Ulmanwala Dakhli, Paikhel within the area of Police Station Paikhel, District Mianwali. On 12-6-1997 Saleh Muhammad complainant and his brother namely Muhammad Hanif had gone to attend the Court of a Judicial Magistrate at Mianwali and after doing the needful they were returning home and Maqbool Ahmad P.W. Was also walking with them. At about 2-30 P.M. When they reached near the tubewell of one Azizullah Khan Paikhel suddenly the appellant and his brother namely Muhammad Rafique, both armed with a Kalashinikov each, emerged there and while raising Lalkaras they fired with their respective kalashinikov at Muhammad Hanif hitting him on various parts of his body. Muhammad Hanif wanted to take shelter behind the room of the tubewell but the indiscriminate firing of the appellant and his co-accused made him fall down near the wall of the tubewell. One Amir Abdullah working in his nearby field was attracted to the spot and he entreated the appellant and his co-accused to spare the victim whereupon the appellant and his co-accused left the spot while firing. The complainant's brother namely Muhammad Hanif succumbed to his injuries at the spot. The motive set up in the F.I.R. Was that about 3/4 years ago. Muhammad Hanif deceased was associated with the investigation of the murder of the appellant's father namely Yar Muhammad but during the investigation Muhammad Hanif deceased was found to be innocent. Apart from that about two years ago Muhammad Hanif deceased had fired at and injured the present appellant. According to the F.I.R. The appellant and his co-accused had killed Muhammad Hanif deceased in order to avenge the murder of their father and causing injuries to the appellant.
Leaving the dead body of Muhammad Hanif at the spot the complainant proceeded to report the matter to the police. F.I.R. No.62 was registered at Police Station Paikhel, District Mianwali at 4-00 p.m. On 12-6-1997 at the instance of Saleh Muhammad complainant for an offence under section 302/34, P.P.C.
3. The investigation of his case was conducted by Salah-ud-din, Inspector (P.W.13), Ahmad Sijjad, S.-I./S.H.O. (P.W.15) and Ghulam Abbas, S.-I. (P.W.17). After completion of the investigation a challan was submitted against the appellant and his co-accused before the learned trial Court.
4. The appellant's co-accused namely Muhammad Rafique was declared a Proclaimed Offender and his case was separated from that of the appellant. At the commencement of the trial the learned trial Court framed a Charge with one head under section 302, P.P.C. To which the appellant pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as seventeen witnesses in support of its case against the appellant. Saleh Muhammad complainant (P.W.10) and Maqbool Ahmad (P.W.11) furnished the ocular account of the incident in question. Saleh Muhammad complainant (P.W.10) also deposed about the motive. Dr. Muhammad Rafique Khan (P.W.5) provided the medical evidence. Ahmad Khan, PC (P.W.14) and Muhammad Ashraf, Inspector (P.W.16) deposed about their efforts made for getting the appellant served with a proclamation and in respect of the appellant becoming a fugitive from law. Salah-ud-din, Inspector (P.W.13), Ahmad Sijjad, S.-I./S.H.O. (P.W.15) and Ghulam Abbas, S.-I. (P.W.17) stated bout the various steps taken by them during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. In his statement recorded under section 342. Cr.P.C. The appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He maintained that he had very cordial relations with the complainant party and that there was no occasion for him to kill the deceased. He, however, opted not to make any statement on oath under section 340(2), Cr.P.C. But he produced his sister namely Mst. Zainab Bibi (D.W.1) in his defence.
7. At the conclusion of the trial the learned trial. Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, the appellant was convicted and sentenced as mentioned and detailed above. Hence, the presence appeal and connected revision petition before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. Detailed arguments have been addressed by the learned counsel for the appellant maintaining therein that the eye-witnesses produced by the prosecution were related and chance witnesses and the reason for their presence near the spot at the relevant time had remained far from being established. It has also been argued that one out of the two motives set up by the prosecution had remained unproved and the report submitted by the Forensic Science Laboratory showed that none of the crime-empties recovered from the place of occurrence had matched with the Kalashnikov recovered from the appellant's possession. It has also been argued that the case in hand is not fit for warding a capital punishment against the appellant as there are a number of mitigating circumstances available in this case warranting reduction of the appellant's sentence from death to imprisonment for life. As against that the learned counsel for the complainant and the State have maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, his conviction and sentence recorded by the learned trial Court do not warrant any interference by this Court. The learned counsel for the complainant has, however, maintained that the amount of compensation payable by the appellant to the heirs of Muhammad Hanif deceased needs to be suitably enhanced.
9. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have entertained some doubts regarding the claim of Maqbool. Ahmad (P.W.11) regarding witnessing the alleged occurrence but the statement made by Saleh Muhammad complainant (P.W.10) has inspired our complete confidence. Maqbool Ahmad (P.W.11) had no concern with the criminal case pending before the Judicial Magistrate, Mianwali, he was not living with Saleh Muhammad complainant (P.W.10) and he had no ostensible reason to accompany Saleh Muhammad complainant and Muhammad Hanif deceased to the above mentioned Court at Mianwali and then to return with them. Saleh Muhammad complainant (P.W.10) had originally maintained that Maqbool Ahmad (P.W .11) had gone with him and Muhammad Hanif deceased to Mianwali but subsequently the said stand was changed by the complainant and according to the changed stand Maqbool Ahmad (P.W.11) had not gone with them to Mianwali and instead he had met the complainant and Muhammad Hanif deceased at a wagon stand at Kot on their way home.
Even the circumstances wherein Magbool Ahmad (P.W.11) had a rendezvous with the complainant party had remained shrouded in mystery and there were different contradictions available in that regard in the statements made by Saleh Muhammad complainant (P.W.10) and Maqbool Ahmad (P.W.11). Maqbool Ahmad (P.W.11) was admittedly a chance witness and he had failed to furnish any plausible explanation for his presence near the place of occurrence. In view of these aspects of this case we have entertained reservations against placing a whole-hearted reliance upon the statement made by Maqbool Ahmad (P.W.11).
10. The occurrence in this case had taken place during broad daylight and the F.I.R. In respect of the said incident had been lodged by Saleh Muhammad complainant (P.W.10) with sufficient promptitude. The appellant and his brother namely Muhammad Rafique had been specifically nominated in the F.I.R. As the perpetrators of the alleged offence and definite allegations had been levelled against them therein. It may not be out of place to mention here that Muhammad Hanif deceased was a brother-in-law of the present appellant and Saleh Muhammad complainant was the deceased's real brother. The appellant was also otherwise related to the complainant party. It was, therefore, well nigh impossible for the complainant to falsely implicate the appellant in a case of this nature. Although Saleh Muhammad complainant was also a chance witness yet his explanation for his presence with Muhammad Hanif deceased at the time of the alleged occurrence is quite convincing and sound. The complainant was a real brother of the deceased, and thus, their going to Mianwali together for attending the proceedings of a criminal Court was not unusual or unlikely. The complainant had made a consistent statement before the learned trial Court and he had no personal reason for falsely deposing against the appellant in a case of this nature. The forthrightness of his statement had not only impressed the learned trial Court but the same has also inspired our confidence.
11. The motive set up by the prosecution had been fully proved before the learned trial Court inasmuch as the matter of associating Muhammad Hanif deceased with the murder of the appellant's father namely Yar Muhammad had not been seriously controverted by the defence and the incident of firing by Muhammad Hanif deceased at the appellant resulting in sustaining of serious injuries by the appellant had not been disputed by the appellant before the learned trial Court. The latter aspect of the matter was in fact admitted by the appellant before the learned trial Court while answering Question No.4 put to him under section 342, Cr.P.0The direct enmity entertained by the appellant against Muhammad Hanif deceased, thus, stood amply established in this case . Providing corroboration to the ocular account furnished by Saleh Muhammad complainant (P. W . 10).
12. Disappearance of the appellant for about a year after the murder of Muhammad Hanif deceased had been admitted by the appellant himself in his statement recorded under section 342, Cr.P.C. And the steps taken by the police for getting the appellant declared as a Proclaimed Offender had been proved before the learned trial Court by Ahmad Khan, FC (P.W.14) and Muhammad Ashraf, Inspector (P. W.16). Such absconscion of the appellant provided yet another factor providing corroboration to the ocular account furnished by the complainant.
13. The medical evidence produced by the prosecution before the learned trial Court confirmed the date and time of the occurrence, the weapon used and the locale of the injuries and, thus, provided ample support to the ocular account. Apart from that the number of injuries found on the dead body of Muhammad. Hanif deceased also provided support to the ocular account regarding causing of injuries to the deceased by more than one assailant.
14. The statement made by Mst. Zainab Bibi (D.W.1) had also gone a long way in establishing the guilt of the appellant inasmuch as this witness produced in defence was a real sister of the appellant besides being a widow of the deceased. This witness had not exonerated the appellant from the allegation of murder but had only maintained that she had forgiven the appellant. Thus, the prosecution's case had found some support from the evidence produced by the defence itself.
15. For what has been discussed above we have arrived at an inescapable conclusion that the prosecution had succeeded in proving the guilt of the appellant beyond reasonable doubt and, therefore, the conviction of the appellant recorded by the learned trial Court is not open to any legitimate exception. We have, however, felt that the case in hand is not fit for awarding a capital punishment against the appellant and there are sufficient mitigating circumstances available in this case for reducing the sentence of the appellant. In this context the statement made by Mst.
Zainab Bibi (D.W.1) before the learned trial Court as well as in connection with Criminal Misc.
No.2339-M of 2002 before the learned District and Sessions Judge, Mianwali show that at least one of the widows of Muhammad Hanif deceased had forgiven the appellant resulting into a partial compromise with the appellant. A partial compromise in a Ta'zir case may have no relevance vis- a-vis the accused person's conviction but in an appropriate case it may have some relevance to the matter of sentence. Another mitigating circumstance available in this case is that right from the inception of this case and throughout the trial the prosecution had never specified as to which one of the two assailants had caused the fatal injury to Muhammad Hanif deceased. The role attributed by the prosecution to the appellant had throughout remained a general role of firing at the deceased without specifying the locale of such injuries or the nature of the same. The learned counsel for the appellant has produced a copy of the judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Aziz and another v. The State (Criminal Appeal No. 293 of 2001 decided on 21-8-2001 at Lahore) wherein the sentence of death passed against the convicts on ten counts of murder had been reduced to imprisonment for life on each of such counts only on the ground that it was not clear as to which one of the convicts had caused the fatal injury to the deceased. The Hon'ble Supreme Court had referred to the cases of Muhammad Latif and another v. The State (1984 SCM R 284), Allah Dad and another v. The State (1995 SCM R 142) and Saee and others v. The State (1984 SCM R 1069) in support of this proposition. Yet another circumstance putting us on caution in the matter of sentence is that none of the crime-empties recovered from the place of occurrence had matched with the weapon recovered from the appellant's possession during the investigation of this case. Keeping all these considerations in mind we have decided to exercise our discretion in the matter of sentence by suitably reducing the sentence of the appellant.
16. For what has been discussed above Criminal Appeal No.1056 of 2000 filed by Ghulam Mustafa appellant is dismissed to the extent of the appellant's conviction recorded by the learned trial Court but the same is partly allowed to the extent of the appellant's sentence which is reduced to imprisonment for life. The benefit under section 382-B, Cr.P.C. Shall be extended to the appellant.
The order passed by the learned trial Court regarding payment of compensation by the appellant to the heirs of the deceased as well as the sentence of imprisonment in lieu thereof are, however, upheld and maintained with the modification that in case of failure of the appellant to pay the requisite compensation to the heirs of the deceased he shall undergo simply imprisonment for six months instead of rigorous imprisonment for six months ordered by the learned trial Court. With these modifications in the sentences of the appellant this appeal is disposed of.
17. The amount of compensation ordered by the learned trial Court to be paid by the appellant to the heirs of Muhammad Hanif deceased has been found by us to be adequate and proper in the circumstances of this case and, therefore, no occasion has been found by us for ordering enhancement of the said amount. In this view of the matter Criminal Revision No.802 of 2000 preferred before this Court by the complainant is hereby dismissed.
Sentence reduced.