' MUHAMMAD RAZA KHAN, J.---Vide an F.I.R. No.71 of Police Station, Lakki Marwat the matter of death of Mirza Ali Khan was reported by his son Sher Bahadur on 2-3-2003 at 1230 hours. It was stated therein that he along with his brother Muhammad Shakoor and father Mirza Ali Khan were present in front of the rooms of "Langar" of the shrine of Malo Gul in village Yasin Manji Wala when at 1030 hours the accused Qamar Ali, who was also his cousin, appeared armed with Kalashnikov and he immediately opened fire as a result of which deceased was hit and died at the spot. The accused Qamar Ali was arrested on 13-5-2003 i.e. After about two months and ten days of the occurrence.
He faced the trial and at the conclusion thereof, the learned Additional District Judge-I, Lakki Marwat convicted the accused and sentenced him to death under section 302(b), P.P.C. With compensation of Rs.1,00,000 payable to the legal heirs of the deceased, in default whereof, he had to suffer further S.-I. For one year. Benefit of section 382-B, Cr.P.C. Was also extended. An appeal was filed against the said conviction and sentence. This judgment will dispose of the Murder Reference No.1 of 2005 and Cr. Appeal No.23 of 2005.
2. The learned counsel for the convict/appellant argued that there was a delay of two hours in lodging the report. The site of occurrence is situated at a distance of 24/25 kilometers from the police station and the delay of two hours is not justified for such a distance. He further added that the presence of the two witnesses at the site of occurrence was doubtful and no independent witness was examined by the prosecution despite the fact that admittedly the pine of occurrence was a shrine frequent13, visited by considerable number of people. He further added that the recovery of Kalashnikov from the accused/appellant was fabricated because the recovery memo.
Does not indicate whether any raid was conducted or whether the recovery was effected on the pointation of the accused. He also maintained that the recovery memo. Contains the number of the Kalashnikov as 562905148 whereas the F.S.L. Has recorded the opinion with regard to rifle No.2905148, so, the same cannot be connected with the accused/appellant. The learned counsel also urged that the bullet and the empties recovered from the scene of occurrence were not sent to the F.S.L., whereas it was imperative that the empties should have been sent to the F.S.L. For determination where both the empties were found to have been fired from single weapon or from different weapons. However, even the dispatch of bullets was delayed till the alleged recovery of Kalashnikov and even thereafter the abnormal delay in transmission process caused doubts in the case. Lastly, he pointed out that allegedly co-villagers were attracted to the spot just after the occurrence but none of them was ever cited as a .Witness and that the presence of the deceased and the P.Ws. At the area of Ziarat Zakori Sahib instead of Ziarat Malo Gul was not explained.
3. The learned counsel for the complainant, assisted by the learned counsel for the State, argued that the delay was already explained because if the police party, equipped with official vehicle, can reach the spot in a period of 45 minutes, the complainant party had to make several arrangements before leaving for the police station.. The availability of a vehicle and the state of shock, after the dreadful incident, justified and explained the period. He further pointed out that the defence has attempted to make up a story that there was a "Mela" and the P.Ws. Had gone there but the P.Ws. As well as the Investigating Officer were consistent in their cross-examination that neither there was any such fair in the vicinity nor did the P.Ws. Participate, therein. The shrine was a source of income for the complainant family, during the week of their turn, and the deceased stayed there for the night and the P.Ws. Had brought his meals from the home situated in the village at some distance from the site of occurrence, therefore, the presence was logical. The medical report had confirmed that the deceased had taken the meals just before the occurrence whereby the presence of the P.Ws. Was further justified and corroborated. Moreover, the scene of occurrence was situated in an isolated place away from the village, therefore, there was ho indication that any other visitor was present in the shrine and in such a situation, the P.Ws. Were the only natural witnesses of the occurrence and their statements cannot be negated. With regard to the serial number of the Kalashnikov, the learned counsel argued that there was no contradiction between the number stated in the recovery memo. And that appearing in the F.S.L. Report. The figure 56 being the model number was not a part of the serial number of the weapon (the examination of the case property has confirmed that figure 56 was not a part of the serial number rather it appeared to be the model number). The learned counsel further explained that there was no confusion about the shrine of Malo Gul Sahib and that of Zakori Sahib, because the site plan shows the shrine of Malo Gul Sahib as a prime building of the premises whereas there was a ' grave of Zakori Sahib as well. Hence, the learned counsel argued that the case was properly proved without any doubt and the conviction has to be maintained.
4: We have examined the record of the case and scrutinized the evidence. Undoubtedly it was a daylight occurrence where only one accused has been charged and he too is a first cousin of the complainant, so, there was no possibility of misidentification. The medical evidence read with the site-plan confirms the empties on the one hand, the studded bullet on the other hand and the deceased in between the true line of firing. The report of the Arms Expert with regard to the crime weapon was in positive which was recovered from the accused/appellant after abscondence of more than two months. Even the story about the eating of meals just before the fatal injury has been confirmed by the Postmortem report that the stomach of the deceased contained semi-solid food. Both the eye-witnesses and the Investigating Officer. Have strongly supported the prosecution case and not a single dent could be created in their statement. In such a situation. The case appears to have been thoroughly proved.
5. However, the degree of perfection with which the entire event has been narrated and corroborated makes one to believe that since the case does not suffer from the natural infirmities and therefore, it could not be believed to be the whole truth. Two factors have led us to think otherwise than the view point of the learned trial Court. Firstly, the motive, as stated in the F.I.R., has not been proved and secondly, one of the eye-witnesses , while appearing as P.W.8, had stated in the cross-examination that "it is correct that I and the P.Ws. Indicate any alertness. The deceased was facing - the accused and without any change of posture or reaction, the injury was received in a composed manner and the P.Ws., being closer to the accused than the deceased, could be the easy victims, had there been the general P.W. Sher Bahadur consulted with each other for reporting against a single person." These two items coupled with the fact that a brother of the complainant namely Sher Afzal was Head Constable in the police establishment indicated that the perfection has been manipulated by the expertise of the said police official and as a result of consultation and deliberation, a single person was charged which indicated that someone else was also present and that the story has not been reported truly in accordance with the occurrence. The motive is normally an insignificant factor for the justification to commit a crime but once a motive is stated in the F.I.R., it has to be proved to connect the events. In the F.I.R., it is stated that there was litigation relating to land between the parties but during the evidence, a twist appeared that the focus of litigation was converted from the lands to the shrine where both the parties have a right to collect the income in the alternate weeks. There is no documentary evidence about the litigation to ascertain the dimension of controversial matter which may provide a justification for the commission of a heinous crime like murder of a real uncle. Therefore, we are of the view that the occurrence has taken place in the manner as narrated with the slight improvement of withholding certain facts like the scope of motive and %the immediate cause of provocation leading to the incident. Apparently the deceased does not appear to be scared on the arrival of the accused at the scene of occurrence nor do motive of land dispute. Apparently in a calm atmosphere something happened and at the spur of moment the accused reacted to commit the murder and due to the withholding of the missing links, we have no alternative but to consider it as a mitigating circumstance.
6. Keeping in view the age of the accused/appellant, in the light of the above stated observations, we partly accept this criminal appeal and convert the sentence of death to that of life imprisonment. The impugned judgment with regard to compensation is upheld. The Murder reference is accordingly answered in the negative.