Kh. Muhammad Sharif, J.--This judgment shall dispose of Murder Reference No, 381/2001 Criminal Appeal No, 356/2001 as they arise out. of the same judgment dated 31.3.2001 passed by the learned Additional Sessions judge-II, Muzaffargarh, whereby appellant was convicted under Section 302(b)
PPC and sentenced to death with a compensation of Rs, 1,00,000/- to be paid to the legal heirs of the deceased as provided under Section 544-A Cr.P.C. in default hereof to further undergo six months SI. However, benefit of doubt was extended to acquitted accused, namely Ghulam Farid, Mst. Naseem Mai, Mst. Marryam and Muhammad Bakhsh and their acquittal was neither assailed by the State nor the complainant.
2. Brief facts of the case as disclosed by the complainant Ghulam Qadir (PW4) are that on 5.11.1999 at about 9.30 a.m. he was present in his house alongwith his family members; that on hearing noise he alongwith PW5 Muhammad Nawaz and Hafiz Abdul Aziz (given up PW) approached towards the southern side of his house and saw that the appellant Ghulam Yasin and acquitted accused Ghulam Farid and Mst. Naseem Mai were quarrelling with his deceased son Rasheed in his land; that Mst. Maryam Mai acquitted accused came there with .12 bore gun and asked the appellant to kill Rasheed upon which deceased tired to run away but Ghulam Farid encircled him while appellant took gun from his mother Maryam and fired a -shot at deceased Rasheed who fell down on the ground and that the appellant and the other accused persons made their escape good and that when they attended Rasheed he had succumbed to his injuries. The motive was stated to be a previous litigation between acquitted accused Muhammad Bakhsh who got murdered the deceased Rasheed by the appellant and others.
3. The investigation of the case was carried out by the police and after having completed legal formalities the accused were sent up for trial before the learned trial Court where the prosecution, in order to prove its case produced eight prosecution witnesses whereas the accused in their statements recorded under Section 342 Cr.P.C. pleaded not guilty and claimed trial.
4. Learned counsel for the appellants in support of this appeal contended that the learned trial Court has not believed the motive which was shrouded in mystery; that the material facts including the injury on the person of the appellant were suppressed by the prosecution; that it is a case of single shot; that it was not a pre-meditated murder; that as the crime empty and the gun were sent together to the Laboratory, therefore, the positive report of the Firearm Expert has not legal consequence and that if this Court finds that it is not a case of acquittal then there is mitigation for lesser sentence.
5. On the other hand, learned counsel for the State submits that although the appellant was injured but it has not come on record that the injury was caused to him by the deceased; that the ocular account is corroborated by the medical evidence; that the prosecution has proved its case against the appellant to the hilt and that the appeal filed by he appellant against the captioned conviction and sentence is liable to be dismissed by this Court as the mitigation is no-existent in this case.
6. We have heard learned counsel for the parties at a great length, have given anxious consideration to their submissions made before this Court and have also gone through the record with their able assistance.
7. The occurrence in this case had taken place on 5.11.1999 at about 9.30 a.m. and the matter was reported to the police at 10.50 a.m. whereafter formal FIR was recorded and distance from the place of occurrence and the Police Station is six miles meaning thereby that it is a case of promptly lodged FIR.
8. The prosecution to prove its case produced Ghulam Qadir (PW4) who is also complainant of this case. Although he is closely related to the deceased i,e, real father yet he has no enmity or strong motive to falsely implicate the appellant in this case. More so, it is rare phenomenon that a real father of the deceased would substitute the real culprit of the case. He A has reasonably explained his presence at the place of occurrence and his presence at the said 'place was quite natural and we see no reason not to accept his statement. Notwithstanding the fact that he was subjected to lengthy cross-examination but nothing could be shaken from his testimony.
9. There is yet another eye-witness of the case, namely, Muhammad Nawaz (PW6) who appeared before the learned trial Judge in support of the prosecution case. He is real brother of the deceased yet he has also no animosity with the appellant to falsely deposed against him. He also remained consistent on all material particulars of the case and nothing could be shaken from his testimony despite his cross-examination to which he was subjected during the trial. He corroborated the statement of the above eyewitness on the main points. He has also reasonably proved his presence at the post to have witnessed the occurrence. This Court seems his testimony to be worthy of credence.
10. Apart from above the ocular account in this case is fully corroborated by the medical evidence and the evidence of recovery of weapon C of offence and crime empty coupled with the report of the Firearm Expert which was positive.
11. Now we would like to discuss the defence version taken by the appellant qua mitigation.
Appellant was also injured in this case. In support of his plea he produced CW1 Dr. Naseer Ahmad Rana who found following injury on the person of the appellant:-- "1. A scar mark 5 c.m. on the left side of top of head".
12. The occurrence in this case had taken place on 5.11.1999 while the appellant, qua the above injury, was examined by the above CW1 on 16.11.1999 and stated that the probable duration of injury was about 10 to 11 days which fits in with the day of occurrence. More so, this CW1 was never cross- examined by the prosecution during trial at the time of recording of his statement as such. Even not a single question was put to him regarding the said injury, so, it cannot be said that either the same was self suffered or was received at the hands of some body else or at some other place. It appears to be a case of sudden flare up. Apart from above, the factum of suppression of said injury by the prosecution and the act of the appellant that he did not repeat the same and only fired a single shot at the deceased which proved fatal are factors which make it a case of mitigation.
13. The analysis of the entire record of this case coupled with anxious consideration given to the submissions made at the bar by the learned counsel for the respective parties and application of independent judicial mind would lead us to an irresistible conclusion that through the prosecution has proved its case against the appellant but it is not a case of capital punishment because there are extenuating circumstances qua the same and we are of the considered view that it is a case of mitigation. Resultantly, while maintaining the conviction and sentence of the appellant under Section 302(b) PPC we convert his sentence of death into imprisonment for life with benefit of Section 382-B Cr.P.C. with a further direction that the amount of compensation and imprisonment in default whereof shall remain the same.
14. In the peculiar facts and circumstances of this case, Murder Reference is answered in the Negative, Criminal Appeal No, 356/2001 is dismissed and the sentence of death awarded to appellant is not confirmed.