' IJAZ AHMAD CHAUDHRY, J.---Abdul Khaliq appellant was convicted under section 302(b), P.P.C.
And sentenced to death for committing the murder of Muhammad Ijaz deceased at about 6-30 a.m. On 29-8-1998, one kilometer away towards Western side of Police Station, Shahpur Minor within the area of Shahpur, City District Sargodha, vide judgment dated 31-10-2000 passed by Mian Muhammad Younas, the then learned Additional Sessions Judge, Sargodha. He was further directed to pay compensation of Rs.1,00,000 to the legal heirs of Muhammad Ijaz deceased failing which to undergo R.I. For six month' S.I. However, co-accused, namely, Muhammad Ehsan was acquitted by extending him the benefit of doubt. The appellant has challenged his conviction and sentence through Criminal Appeal No.139-J of 2001, while the learned Sessions Judge' Sargodha also sent Murder Reference No.613 of 2000 under section 374, Cr.P.C. For the confirmation of aforesaid death sentence passed upon the appellant. As both the matters arise out of the same judgment and common question of facts and law are involved, we intend to dispose of the same through this single judgment.
2. Succinctly the facts of the prosecution case set up in the F.I.R. (Exh.PF), got ledged by Muhammad Nawaz (P.W.8) father of the deceased are that his son Muhammad Ijaz was running a shoe-shop at Jauharabad and he used to go to his shop daily from Shahpur City. On 29-8-1999 at 6-30 a.m. The complainant Muhammad Nawaz, his sons Muhammad Ijaz (deceased), Muhammad Riaz and Muhammad Nasir came out of their house to go to Jauharabad. Muhammad Ijaz (deceased) was ahead of them. When they reached on the western bank of Shahpur Canal and were 100 yards away from Phatak, suddenly Abdul Khaliq appellant armed with .30 bore pistol and Muhammad Ehsan acquitted co-accused empty-handed emerged there. Muhammad Ehsan acquitted co- accused raised Lalkara that Muhammad Ijaz (deceased) be taught a lesson of illicit liaison, whereupon Abdul Khaliq appellant with his pistol .30 bore fired shot which hit Muhammad Ijaz (deceased) under his right armpit, who fell down and succumbed to the injury on the spot.
3. The motive behind the occurrence was alleged that Abdul Khaliq appellant had suspicion of illicit liaison of Muhammad Ijaz deceased with his sister Mst. Razia and both Abdul Khaliq appellant and Muhammad Ehsan acquitted co-accused in furtherance of their common intention had committed the murder of Muhammad Ijaz, son of the complainant.
4. After receiving the information of the above-said occurrence, Abdur Razaq, S.-I. (P.W.10), recorded the F.I.R. (Exh.PF). He prepared the inquest report (Exh.PC) as well as injury statement (Exh.PB) and also sent the dead body through Muhammad Ihsan, FC-976 (P.W.4) to mortuary for autopsy. He visited the spot and took the blood-stained earth from the place of occurrence into possession vide recovery memo. (Exh.PG) and one crime empty (Exh.P6) was also taken into possession by him from the place of occurrence, vide recovery memo. (Exh.PN). He then prepared rough site plan (Exh.P.1) and recorded the statements of the P.Ws. Under section 161, Cr.P.C. On 4-9- 1998, he arrested Abdul Khaliq appellant from Shahpur Minor near the main road and also recovered .30 bore pistol (P.4) from his possession. After unloading it two live bullets P-5/1-2 were recovered and the same were also taken into possession by him vide recovery memo. (Exh . PE).
5. After conclusion of the investigation, report under section 173, Cr.P.C. Was submitted in the Court and copies of the documents required under section 265-C, Cr.P.C. Were supplied to the appellant and his co-accused, who were charge-sheeted on 17-4-2000 which was denied by them and they claimed to be tried.
6. The prosecution in order to prove the guilt of the accused party produced as many as 11 witnesses. Medical evidence was produced through the statement of Dr. Muhammad Ayyub Ansari, (P.W.11) who conducted the post-mortem examination on the dead body of Muhammad Ijaz deceased. (P.W.6) Munir Ahmad had identified the dead body of Muhammad Ijaz deceased while ocular account was furnished through the statements of (P.W.8) Muhammad Nawaz and (P.W.9)
Nasir. Abdul Razzaq Inspector/S.H.O. (P. W.10) had conducted the investigation of the case.
However, the remaining witnesses are less or more of formal nature.
7. After close of the prosecution evidence, the appellant and his co-accused were examined under jurisdiction 342, Cr.P.C., who denied the allegations levelled by the prosecution against them and professed innocence. On a question that why this case against you and why the P.Ws. Have deposed against you?" Abdul Khaliq appellant made the following reply:-- "The deceased Muhammad Ijaz was a bad character and have so many enemies. Might be someone had murder him. It was a blind murder. I was involved in this case due to suspicion. P.Ws.
Are closely related of deceased. I am innocent."
' The appellant did not produce any defence evidence nor he had opted to make statement on oath under section 340(2), Cr.P.C.
8. After hearing the learned counsel for the parties, the learned trial Court passed the impugned judgment of conviction and sentence against the appellant. Hence, these matters.
9. Learned counsel for the appellant contends that the appellant has been falsely implicated in the present case. It is further contended that presence of the complainant and another eye-witness Nasir (P.W.9) at the spot was doubtful as there was no occasion to accompany the deceased by them at the time of incident towards the place of occurrence. It is next contended that Muhammad Nawaz, complainant (P.W.8) is father of Muhammad Ijaz deceased while Nasir (P.W.9) is brother of the deceased, hence, both are interested witnesses and their statements cannot be relied upon for maintaining the conviction of the appellant. It is also contended that in the cross-examination, they have failed to establish their presence at the spot and seeing of occurrence. It is also added that it was unseen occurrence and when the complainant had come to know about the occurrence he got involved the appellant due to suspicion. It is further contended that no one from the locality was joined in the investigation in spite of the fact that there were many "Juggis" at the spot; that the appellant' was arrested on 4-9-1998 when the recovery of pistol was allegedly effected after 7 days of the occurrence while the crime empty was delivered in the office of Forensic Science Laboratory on the same day when the accused was shown to have been arrested, hence the report of Forensic Science Laboratory has got no sanctity. It is next contended that according to the prosecution version itself the appellant had committed offence to save the family honour as the motive was set up that the deceased had illicit liaison with Mst. Razia sister of Abdul Khaliq appellant and the appellant at the most could be awarded lesser punishment as he even had not repeated the fire and the death sentence was not warranted.
10. On the other hand, learned counsel for the State opposes this appeal on the ground that it is a case of single accused and substitution in such-like cases is a rare phenomena; P.Ws. Had no previous grudge Or to falsely involve the appellant in the present case; who have given plausible explanation for their presence at the spot and they may be relied upon for maintaining the conviction and sentence awarded by the learned trial Court.
11. We have heard the learned counsel for the parties and also perused the record with due care and caution.
12. The occurrence in the present case took place on 29-8-1998 at 6-30 a.m. While the F.I.R. Was got lodged with promptitude on the same day at 7-30 a.m. At the police station which was at a distance of 1 kilometer from the place of occurrence. It eliminates the possibility of false implication of the appellant, who is single accused alleged to have fired with pistol .30 bore at the deceased hitting in the right armpit on the front side and according to the doctor and said injury as sufficient to cause death in the ordinary course of nature.
13. Both the eye-witnesses were residents of the same locality and though they are related inter se and with the deceased yet they had no previous or grudge to falsely implicate the appellant in the present case. Even otherwise there does not appear any reason to substitute the name of the appellant by letting off the real culprit. Both the P.Ws. Were subjected to lengthy cross-examination but nothing could be gained in favour of the defence to shatter their evidence. They remained consistent on the material points regarding the time place and the manner in which the occurrence had been committed. All these facts establish the presence of the P.Ws. At the spot and they are worthy of reliance even without corroboration by independent piece of evidence. We are not inclined to believe the report of Forensic Science Laboratory which though is positive because the empty was delivered in the said Laboratory on the same day, when the appellant was arrested and pistol was allegedly recovered from his possession. However, mere non-reliance of recovery of weapon of offence is not fatal to the prosecution version in the presence of unshattered ocular account.
14. For the foregoing reasons, we are satisfied that the prosecution has been able to bring home guilt to the appellant beyond any shadow of doubt. Mere acquittal of co-accused is no ground to discard the prosecution version as Muhammad Ehsan acquitted co-accused was only attributed Lalkara whereas the appellant had caused fire-arm injury, which proved fatal. As such conviction recorded by the learned trial Court under section 302(b), P.P.C. Is maintained. So far as quantum of sentence is concerned, we have considered the whole evidence and the circumstances of the present case. The prosecution itself had set up the motive that Abdul Khaliq appellant had a suspicion that the deceased was carrying on illicit liaison with his sister Mst. Razia P.Ws. Nasir in his cross-examination also admitted about this suspicion in the mind of the appellant and a Punchayat according to him was convened in the mosque about 15 days before this occurrence wherein father of the deceased had taken oath about innocence while sitting in the mosque. It is borne out from the evidence of the prosecution itself that this occurrence had been committed by the appellant as a result of the family honour and the appellant had also not repeated the shot. In such facts and circumstances, the death sentence was not warranted which is converted to life imprisonment. However, the direction regarding payment of compensation to the legal heirs of the deceased is maintained and the appellant shall be entitled to the benefit under section 382-B, Cr.P.C.
15. With the above modification in the quantum of sentence the impugned judgment is maintained and Criminal Appeal No.139-J of 2001 is dismissed.
16. Consequently, Murder Reference No.613 of 2000 is replied in negative as death sentence has been converted to life imprisonment.