' MUHAMMAD ASHRAF LEGHARI, J.---Through this Criminal Appeal, appellant Mamoo alias Muhammad has challenged the judgment dated 14-5-1997 passed by the learned Sessions Judge, Badin in Sessions Case No,144 of 1989 whereby he was convicted under section 302, P.P.C. And was awarded death sentence for committing the murder of deceased Mir Muhammad alias Meero.
2. Briefly, the facts leading to this appeal are that on 27-11-1989 complainant Qadir Bux lodged F.I.R.
At Police Station Tando Bago stating therein that they owned agricultural land adjacent to the lands of one Haji Tajoo Chandio. They had dispute with Haji Tajoo over demarcation of the boundaries lines in between their lands. The marriage ceremony of his brother Mir Muhammad alias Meero was scheduled on 26-11-1989. The venue of marriage ceremony was situated in their village. After serving the meals to guests, the music program started at about 11-00 p.m. At about 11-30 p.m. When complainant and his relatives Shero and Noor Muhammad were sitting near deceased Mir Muhammad, they heard fire-arm shot which hit Mir Muhammad on his back. After sustaining the injury he fell down on the ground. They saw the present appellant who was armed with country made pistol started to escape from the scene of offence towards the jungle. They tried to apprehend him but he threatened them and made his escape good taking the advantage of darkness. The complainant with the help of P.Ws. Imam Bux, Mevo, Ramii Bheel and others took Mir Muhammad to Taluka Hospital where he succumbed to injuries. After that complainant went to Police Station and lodged the F.I.R. At about 0115 hours on 27-11-1989. He further asserted in the F.I.R.
That appellant has killed his brother Mir Muhammad at the instance of Haji Tajoo Chandio.
3. After registration of F.I.R. Police took up investigation and on completion thereof submitted challan against the appellant whereas co-accused Haji Tajoo Chandio was left off by the police.
Later on, the complainant filed a direct complaint against Haji Tajoo which was brought on record and bailable warrants were issued against him but later on learned Sessions Judge Badin after examining the prosecution witnesses acquitted him vide judgment dated 19-9-1992.
4. Formal charge was framed against the appellant on 23-2-1991 to which he pleaded not guilty and claimed trial.
5. Prosecution in support of its case examined P.W.1 Doctor Nazir Ahmed as Exh.7, who produced post-mortem report of deceased Mir Muhammad as Exh.7-A, P.W.2 Tapedar Amir Bux is examined as Exh.8. He produced site-plan as Exh.8-A, P.W. Muhammad Aslam was given up by D.A. Under his statement Exh.9, P.W.3 complainant Qadir Bux is examined as Exh.10. He produced F.I.R. Exh.10-A on the record. Thereafter P.W.4 Sheroo alias Sher Muhammad is examined as Exh.11 on the record, P.W.5 Mevo is examined as Exh.12, P.W.6 Mashir Piaro is examined as Exh.12, he produced Mashirnama of Vardat as Exh.12-A, Mashirnama of dead body as Exh.12-B, Mashirnama of clothes of deceased as Exh.12-C, Danishtnama of dead body as Exh.12-D, Mashirnama of arrest of accused as Exh.12-E. Mashirnama of recovery of pistol and two cartridges as Exh.12-F. P.Ws. Noor Muhammad and Ramii were given up by District Attorney vide his statements Exhs.13 and 14 on record.
Mukhtiarkar Muhammad Alam P.W.7, who recorded confessional statement of accused was examined as Exh.15. He produced confessional statement of accused as Exh.15-A on the record. P.W.
Imam Bux son of Muhammad Chana could not be examined in Court as his whereabouts were not known as is reported by A.S.-I. Abdul Ghani in his deposition as Exh.17 on the record. P.W.9 Mashir Haider Bux is examined as Exh.18. He deposed that Mashirnama of Vardat Exh.12-A, inquest report Exh.12-D, Mashirnama of securing clothes of deceased Exh.12-C, Mashirnama of dead body Exh.12-B and Mashirnama of arrest of accused Exh.12-F on the record are same, correct and bear his signatures. A.S.-I. P.W.10 Asghar Ali an Investigating Officer of the case was examined as Exh.19.
P.W.11 Ali Sher Rahu the then S.H.O., P.S. Tando Bago, who after taking over investigation from A.S.-I.
Asghar Ali further investigated case is examined as Exh.20. He also produced report of Ballistic Expert as Exh.21 and report of Chemical Examiner as. Exh.22. Thereafter, learned District Attorney closed the side of prosecution vide his statement as Exh.23 on record.
6. Statement of accused under section 342, Cr.P.C. Was recorded as Exh.24. He produced the judgment of acquittal in respect of accused Haji Tajoo Chandio. He denied the allegations levelled against him. He neither examined himself on oath nor led any evidence in defence. The learned trial Court ultimately convicted the appellant and awarded him death sentence under section 302, P.P.C.
7. We have heard learned counsel for the appellant as well as Mr. Muhammad Azim Panhwar learned counsel appearing for the State.
8. At the very outset learned counsel for the appellant stated that he does not press this appeal on merits but the case of appellant may be considered in view of the confessional statement of appellant recorded by the Mukhtiarkar and FCM Tando Bago. He further stated that, in view of the confessional statement, the death of deceased was accidental and the intention of committing the murder was missing. He argued that at the most the offence, if any, it would fall under old section 304-A, P.P.C. As the offence took place before the amendment came in P.P.C. He made a request that the sentence of death may be converted and modified to the term of sentence which the appellant has already undergone.
9. Mr. Panhwar learned counsel appearing for the State has also drawn out attention to the portion of confessional statement of the appellant. He stated that although this piece of evidence was disbelieved by the trial Court for certain lapses on the part of prosecution but despite that the judicial notice of material part of it may be taken into consideration and keeping in view the said part of judicial confession, the offence committed by the appellant would be rash and negligent act falling under section 304-A, P.P.C. He conceded to the request made by the learned defence counsel.
10. We have gone through the record and found that F.I.R. Of the incident was promptly lodged. The name of accused appeared in the F.I.R. Fatal injury was attributed to him. The incident of this case was seen by complainant Qadir Bux, P.Ws. Shero alias Sher Muhammad and Mevo. They have supported the prosecution case. Medical evidence is in conformity with the aforesaid ocular evidence. The said evidence has not been shattered by the defence, therefore the aforesaid evidence inspires confidence, which cannot be disbelieved or discarded for minor discrepancies.
The pieces of evidence relating to judicial confession and recovery of pistol have been disbelieved by the trial Court.
11. We have gone through the relevant portion of the judicial confession which was made by the appellant before the Mukhtiarkar and 1st Class Magistrate Tando Bago after his arrest wherein he stated that he was invited in the marriage ceremony. He was sitting by the side of bridegroom Mir Muhammad. The participants, friends and relatives of bridegroom were firing to celebrate the marriage ceremony. Bridegroom Mir Muhammad handed over pistol to him for ' loading the same.
While he was loading the pistol, it accidentally went off and hit the deceased on his back who later on succumbed to injuries in the hospital.
12. The appellant adniitted the factum of firing in his confessional statement but with different version to the evidence of prosecution witnesses. The version of appellant as expressed in judicial confession may have truth in it, firstly for the reason that the appellant was invited in the marriage ceremony and was sitting by the side of bridegroom. Secondly after the incident was over, the appellant was not captured by the participants. Thirdly prosecution failed to prove motive as set up by it. Fourthly complainant party had enmity with one Haji Tajoo Chandio who was let off by the police and direct complaint filed against him by the complainant also ended in acquittal.
Resultantly, Haji Tajoo Chandio was acquitted in direct complaint who is said to have instigated the present appellant.
13. Since the presence was not denied by the appellant at the scene of offence in his confession and so also the fire.Made by him at the deceased. He stated that while he was loading pistol it went off accidentally and hit Mir Muhammad.
14. Now the point to be resolved is as to what offence the appellant had committed. There are two versions before us one advanced by the eye-witnesses and the other by appellant in his confessional statement. Both the versions are considered by us in juxtaposition, both are equally possible. But the version of appellant as expressed in confession before the Magistrate appears to be more plausible, hence without discarding and disbelieving the ocular evidence, we as a abundant caution have taken into consideration all the aspects of the case stated above.
15. Obviously the confessional statement of appellant has created reasonable doubt in our mind and the benefit of doubt is to be extended to the appellant by adopting the safer course of administration of criminal justice.
16. In such a situation, we do not consider it proper to award extreme penalty of death to appellant under section 302, P.P.C. But we convert the offence from section 302, P.P.C. To 304-A, P.P.C. And reduce the sentence of appellant from death to the period of sentence which he had already undergone as the appellant had no criminal intention to commit murder but the pistol went off accidentally. However, we imposed fine of Rs,20,000, to be paid to legal heirs of deceased. We had dismissed the appeal with aforesaid modification of sentence vide order dated 2-12-2003. These are the reasons for the same.