IJAZ-UL-HASSAN KHAN, J.--- Appellant Gul Muhammad son of Syed Anwar Shah aged about 27/28 years, resident of Ganj Shaheed Abad, Peshawar was tried under section 302 read with section 34, P.P.C. in case F.I.R.No,156 of 2000 registered in Police Station Kohat City, on the allegation of having on 7-3-2000 at about 14-45 hours near Hangu Road Kohat, in furtherance of his common intention with absconding co-accused Ghulam alias Dilawar, committed `Qatl-i-Amd' of Farmanuddin by causing his death as a result of pistol shot at him.
2. The appellant vide judgment, dated 6-1-2004 announced by Mr. Subhan Sher, Sessions Judge, Kohat was convicted for the offence under section 302, P.P.C. and sentenced to death subject to confirmation by this Court. He was also fined to Rs,1,00,000 (one lac) or in default to undergo two years simple imprisonment. In case of realization of the fine, half of the same was directed to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.
3. The appellant has challenged his conviction and sentence by filing Criminal Appeal No,19 of 2004, whereas the learned trial Court has submitted Murder Reference No,3 of 2004 for confirmation of his sentence of death, as required under section 374, Cr.P.C.
4. As both the matters have arisen out of one and the same judgment and on common set of facts, hence these are being disposed of by this single judgment.
5. Brief facts relevant for the disposal of this matter are that on the day of occurrence, complainant Riazuddin along with his nephews Farmanuddin (deceased) and Taskeenuddin P.Ws. had gone to the District Courts in connection with a case registered against the deceased. After attending the Court, they were on the way back to home. When they reached the venue of occurrence at 14-15 hours, a young man whose name was later on disclosed as Gul Muhammad (accused-appellant), all of a sudden drew his .30 bore pistol and started firing at Farmanuddin, with which he was hit and got injured. The accused-appellant after accomplishing the mission fled away from the spot towards old Lorry Adda. The complainant took the injured to Liaqat Memoraial Hospital, Kohat for treatment. The victim succumbed to the injuries and expired the same day. The occurrence was stated to have been witnessed by the complainant, Taskeenuddin and many others. Enmity in the village was stated to be the motive leading to the incident.
6. S.-I. Nijat Ali (PW.10) on receipt of information that a dead body has been brought to Liaqat Momorial Hospital, Kohat proceeded to the hospital, where the complainant made the report about the occurrence. The witness in hand registered the case in the shape of Murasila Exh.P.A. and sent the same to police station where it was incorporated into F.I.R. He prepared injury sheet and inquest report of the deceased and dispatched the dead body to the mortuary for postmortem examination. During the investigation he was informed that accused Gul Muhammad was arrested by the police while running from the spot along with the weapon of offence. He then proceeded to the spot and prepared the site plan Exh.P.B. at the instance of the eye-witnesses. P.W. Taskeenuddin produced the torn pocket of the shirt of Gul Muhammad accused which was in his possession. S.-I.
Nijat Ali took the same in his possession vide recovery memo. Exh.P.C. He also took into possession blood-stained clothes of the deceased vide recovery memo. Exh.P.C./1. He arrested the accused, registered a case against him under section 13, Arms Ordinance, 1965, sent the crime weapon i,e, .30 bore pistol to Ballistic Expert and blood-stained clothes of the deceased to the Serologist and placed their reports Exh.P.Z. and Exh.P.Z./1 on file. After completion of investigation S-I. Lal Farid P.W.6 submitted complete challan in Court.
7. Dr. Haleem Khattak (P.W.11) on 7-3-2000 at 3-20 p.m. conducted autopsy on the dead body of Farmanuddin and found the following:-- External Examination (1)Fire-arm entry wound over the lateral aspect of right upper arm about 1/4" in size.
(2)Exit wound on the inner side of right upper arm about 1/2" in size.
(3)Fire-arm entrance wound in the right lateral side of chest about 1/4" in size.
(4)Exit wound on the left lateral side of chest about 1/2" in size.
(5)Fire-arm entry wound on the right hypondrium about 1/4" in size.
(6)Exit wound on the left lumber region about 1/2" in size.
Internal Examination Thorax: Walls, ribs and cartilages, pleurae, right and left lung and heart injured.
Abdomen: Left kidney damaged, liver, small intestine and spleen were injured.
Opinion: The deceased died of massive haemorrhage as a result of injuries to the vital organ i,e, lungs, liver, leading to shock and cardio pulmonary failure due to fire-arm injury.
Probable time between injury and death within one hour and between death and post-mortem within one hour.
The post-mortem report is Exh.P.M. which bears the signature of the doctor. Injury Sheet Exh.P.M./1 also bears his endorsement.
8. The prosecution in order to prove its case produced 10 witnesses in all. D.F.C. Khan Wali (P.W.1) is marginal witness to recovery memos. Exh.P.C. and Exh.P.C./1. Zaheeruddin (P.W.2) identified the dead body of Farmanuddin deceased before the police and doctor. Constable Akbar Ali (P.W.3) escorted the dead body of deceased from the police station to the mortuary and on return handed over bloodstained shirt and Shalwar of the deceased to the Investigating Officer. A.S.-I.
Muhammad Zaman (P.W.4) on receipt of `Murasila' Exh.P.A./1, registered the case vide F.I.R. Exh.P.A.
He is also marginal witness to recovery memos. Exh.P.C./2 and Exh.P.C./3. Muhammad Yagoob Khan Khattak (P.W.5), the then Senior Civil Judge/Judicial Magistrate, Kohat recorded confessional statement of the accused on 13-3-2000. S.-I. Lal Farid (P.W.6) submitted complete challan in this case. Riazuddin (P.W.7) and Taskeenuddin (P.W.8) furnished eye-witness account of the incident and implicated the accused for the commission of crime. F.C. Muhammad Jamil (P.W.9) confirmed having apprehended the accused armed with a .30 bore pistol with live rounds of the same bore and fixed charger. S.-I. Nijat Ali (P.W.10) carried out investigation in this case.
9. The accused in his statement recorded under section 342, Cr.P.C. denied the prosecution allegations and professed in innocence. He did not appear as his own witness on oath as required under section 340(2), Cr.P.C. nor produced any evidence in defence.
10.The learned trial Judge on overall assessment of the evidence concluded that the prosecution was successful in proving the guilt of the appellant beyond any reasonable doubt. In reaching such conclusion, the learned Court accepted the evidence furnished by the complainant and Taskeenuddin P.Ws., corroborated by, medical evidence, recoveries, apprehension of the accused from the spot along with crime weapon and confessional statement of the accused.
11.Appearing on behalf of the appellant Messrs Bashir Ahmad Khan Tangi and Shahabuddin Burq, Advocates, atter having read the entire prosecution evidence and other material on record, argued that there are material contradictions in the statements of eye-witnesses as well as in the medical evidence and site plan; that the recoveries made in the case are not worth reliance having been made in utter disregard to the procedural law; that the alleged eye-witnesses of the occurrence are closely related to the deceased and no efforts were made to procure independent and impartial evidence; that the so-called confession is the result of torture and coercion by the police and that the impugned judgment of conviction is void, illegal and based on misreading and non- reading of evidence and thus, liable to be set aside.
12.As against the same, Mr. Waheedullah, learned Additional Advocate-General for the. State assisted by Mr. Khalid Khan, Advocate learned counsel for the complainant, supported the impugned judgment maintaining that the prosecution as per its ocular testimony against appellant corroborated by the medical evidence and his own admission of having killed the deceased at the given day, time and place, stood succeeded in bringing home the guilt to him beyond any shadow of reasonable doubt and the appeal merits dismissal.
13.We have carefully considered the submissions made from both the sides with the help of available record.
14.The ocular account 'of occurrence stands furnished through the testimony of Riazuddin complainant and that of Taskeenuddin P.W. The complainant in brief deposed that he along with deceased and P.W. Taskeenuddin had gone to District Courts to attend a case pending against the deceased. On return to the village, when they reached near the site of occurrence, all of sudden a person started firing at Farmanuddun with his 30 bore pistol. The victim was hit and got injured.
Subsequently, it transpired that name of the accused was Gul Muhammad appellant. After firing the appellant started running towards old Lorry Adda. He was apprehended by police and relieved of the crime weapon. The complainant was fully supported by P.W. Taskeenuddin. The learned counsel for the appellant assailed the credibility of these witnesses on the ground that the complainant and P.W. Taskeenuddin being closely related to the deceased are unworthy of credence. We are afraid the contention raised by the learned counsel for the appellant is devoid of any legal force. It is well-settled law that mere relationship of the eye-witnesses with the deceased, in the absence of any animus on their part against the accused cannot be made the basis of brushing aside their testimony which is otherwise convincing in nature. In this regard reference can be made to PLD 1971 SC 751 and 1969 SCM R 64. As regards the plea of the learned counsel for the appellant that these witnesses are chance witnesses, it may be observed that by no stretch of reasoning they can be branded as chance witnesses. They have fully justified their presence at the spot and we see no good reason to discard their testimony. It needs no reiteration that even a chance and interested witness may render truthful version and his testimony is believed in the circumstances of each case. In the instant appeal the appellant has not been able to suggest <or prove any kind of hostility of these witnesses towards the accused which may be said to have promoted them to implicate the accused falsely, in the instant case. Two ocular witnesses have given consistent, cogent and natural account of occurrence despite lengthy cross-examination by the defence during the trial. Nothing material could be brought out therefrom which may be said to have militated against their credibility or veracity of the version put forward by them. The contention that they were not present at the spot and had not witnessed the occurrence is without basis. The contention, therefore, is repelled being without force.
15. The medical evidence is in complete harmony and corroborates to the ocular testimony as regard the injuries. The same, therefore, was rightly received as corroborative to the ocular testimony. This was a correct approach towards the matter. We endorse the view taken by the learned trial Judge in this respect.
16.Immediately after the occurrence, accused while running away from the spot, was apprehended by F.C. Muhammad Jamil P.W., who happened to be on duty near the venue of occurrence. A pistol of .30 bore along with three live rounds of the same bore and fixed charger, were recovered from his possession. The pistol was sent to the Fire-arms Expert, Peshawar for opinion and report. The report of the Expert (Exh.P.Z.) is in positive. The report of the Serologist (Exh.P.Z.) is also in positive. The reports provide sufficient corroboration to the prosecution version.
17.The accused was produced before Mr. Muhammad Yaqoob Khan Khattak (P.W.5) on 13-3-2000 for recording his confessional statement. It has come in evidence that the accused remained in police custody for 7 days and he was subjected to torture by the police. It has also come in evidence that this fact was brought to the notice of P.W.S. We find force in the submission of learned counsel for the appellant that the confessional statement does not appear to be voluntary.
We exclude the same out of consideration. Even then, the prosecution has brought sufficient material on record to connect the neck of the appellant with the crime in-question.
18.As regards the contention regarding award of lesser penalty than death, we have examined this aspect of the case- with all care. The accused is alleged to be a hired assassin. There is nothing on the record in support of the assertion. The motive leading to the incident has remained shrouded in mystery. We have found that in the circumstances of this case, it would be safe and would serve the interests 'off justice if the sentence of death passed against the accused- appellant is converted into sentence of imprisonment for life and we order accordingly. With its modification the appeal stands dismissed. However, the accused-appellant shall be entitled to the benefit of section 382-B, Cr.P.C.
19. Murder Reference 3 of 2004 is answered in the negative and the sentence of death passed against the accused-appellant is not confirmed.
We had, by our short order, dated 1-3-2005 dismissed the appeal for reasons to be recorded later.
Above are the detailed reasons.