1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,506 of 2001 filed by Muhammad Azam appellant, who was convicted under section 302(b), P.P.C. And sentenced to death with further direction to pay Rs,100,000 as compensation to the legal heirs of the deceased or in fault six months' R.I. The conviction and sentence was recorded by learned Additional Sessions Judge, Vehari camp at Central Jail Multan vide his judgment dated 30-6-2001.
2. ' Murder Reference No,482 of 2001 for confirmation or otherwise of death sentence of convict along with Criminal Revision No,322 of 2001 filed by the complainant shall also be disposed of through this single judgment.
2. Brief facts of the case are that on 15-7-1996 at about 3-00 a.m. (midnight) the complainant Asghar Ali along with his brother Muhammad Aslam was sleeping in the cattle shed, which is surrounded by a boundary wall. An electric bulb was lit in courtyard. At about 3-00 a.m. (midnight)
3. Nisar Ahmad armed with a gun, Naseem alias Sheema armed with pistol, Muhammad Azam also armed with a pistol along with two unknown persons after scaling over the wall entered into the cattle shed. Due to the noise, the complainant and his brother Muhammad Aslam woke up; raised hue and cry, which attracted Mst. Sardaran and Abdul Raheem. Within their view, Nisar Ahmad raised "Lalkara" not to spare Muhammad Aslam, upon which Muhammad Azam fired a shot, which landed on the chest of Muhammad Aslam. The second shot, according to the complainant, fired by accused Naseem alias Sheema hit on the chin of Muhammad Aslam making exit from the back of left ear. The complainant along with other identified Nisar, Naseem and Muhammad Azam in the light of electric bulb. According to the complainant, he could recognize the unknown person, if brought before him. The injured Muhammad Aslam succumbed to the injuries at the spot.
4. ' The motive alleged was that Muhammad Azam had suspicion that deceased Muhammad Aslam had illicit relation with his sister.
5. 2-A. Muhammad Yousaf Inspector P.W.10 after sending the complainant Exh.PF recorded at 4-00 a.m. On the day of occurrence at Adda Pakhi More to police station for registration of formal F.I.R.
6. Exh.PF/1 with regard to above-noted occurrence, which had taken place within the revenue estate of Chak No,178/EB, at a distance of 13 kilometres from Police Station Machhiwal District Vehari, went to the place of occurrence. From there, he took into possession blood-stained earth vide memo.
7. Exh.PF. A crime empty of .30 bore pistol was secured vide memo. Exh.PG. The injury statement and inquest report of the deceased were Exh.PB and Exh.PC respectively. On 27-7-1996 the Investigating Officer arrested Muhammad Azam, Nisar Ahmad, Naseem Ahmad and Ghulam Haider.
8. Muhammad Azam while in custody led to the recovery of .30 bore pistol P.1, which was taken into possession vide memo. Exh.PD. After completion of the investigation, except Muhammad Azam all the remaining accused were found innocent by the Investigating Officer.
3. At the trial, prosecution in order to prove its case produced 11 witnesses in all. The eye-witness account was furnished by Asghar Ali and Mst. Sardaran P.W.6 and P.W.7. The post-mortem examination on the dead body of the deceased was conducted by Dr. Zahid Farooq P.W.1. Learned A.P.P. Tendered in evidence report of the Chemical Examiner (Exh.PM), report of Serologist (Exh.PN), report of Forensic Science Laboratory (Exh.PO) and closed the prosecution case. The accused in their statement pleaded false implication. After conclusion of the trial, except Muhammad Azam all the remaining accused were acquitted by the learned trial Court.
4. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellant submits that neither the complainant nor his mother P.W.6 and P.W.7 were present at the spot; in fact they are cooked up witnesses and the reality is that on the night of occurrence, one Nazir son of Makhan Gujjar an employee of the deceased was sleeping with him in the courtyard but he was never produced by the prosecution. Further submits that Naseem alias Sheema, who was attributed a specific injury on the chin of the deceased had been acquitted by the learned trial Court and the appellant, who is also attributed a single injury on the person of the deceased is entitled to same treatment. Next submits that no motive ever laid with the appellant and in fact it were his co-accused, who could have any motive because of a quarrel having taken place in between the complainant party prior to the instant occurrence. According to learned counsel it is very easy to allege that the deceased had illicit relation with the sister or mother of the accused but it is difficult to prove the same, as is in the instant case because there is no corroboration whatsoever except the bald assertion of the complainant in his regard.
9. ' Concluding his arguments, learned counsel submits that if his above said submission do not find favour with the Court, then, there are some mitigating circumstances warranting lesser penalty and those are that the shot was not repeated, the deceased was a person of bad character having record of three criminal cases to his credit, the motive is also not proved and that on the same evidence Nasim alias Sheema, who was also attributed a fire-arm injury or the chin of the deceased, was acquitted by the learned trial Court.
10. ' Learned counsel for the State assisted by learned counsel for the complainant, who has filed Criminal Revision No,322 of 2001 submits that it is a case of promptly lodged F.I.R., inasmuch as the occurrence took place at 3-00 a.m. While the matter was reported to the police at 4-00 a.m.; the date, time, the place and the weapon of offence the appellant was carrying is fully mentioned in the F.I.R.; the ocular account furnished by P.W.6 and P.W.7 is fully corroborated by medical evidence and thee was no reason on their part to falsely implicate the appellant especially when the eye- witnesses are real mother and brother of the deceased. Further submits that statements of witnesses having been recorded by the trial Court five years after the occurrence, minor discrepancies are natural and due to those discrepancies, no benefit can be claimed by the appellant.
11. ' Learned counsel for the State at this stage adds that the appellant has given no plausible explanation in his statement recorded under section 342, Cr.P.C. For his false implication.
12. ' We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant case, the occurrence took place at 3-00 a.m.
13. (Midnight) on 15-7-1996 while the matter was reported to the police at 4-00 a.m. On the same night by Asghar Ali (complainant) real brother of the deceased although the distance between the place of occurrence and police station was 13 kilometers. The names and the roles played by each of the accused are mentioned in the F.I.R. With full particulars. So, it is a case of promptly lodged F.I.R. Without any pre-meditation and consultation.
14. ' The eye-witness account was furnished by Asghar Ali (complainant) P.W.6 and his mother Mst.
15. Sardaran P.W.7. Both being inmates of the house were natural witnesses, their presence at the spot cannot be doubted without a pinch of salt; even otherwise, a real mother and a brother would not leave the actual culprit and involve an innocent person; we therefore, believe the presence of both these eye-witnesses at the spot. The electric bulb has been shown as in the rough site-plan prepared by the I.O. As also the site-plan prepared by the Patwari with scale. The convict appellant was identified in the light of said electric bulb.
16. ' The post-mortem examination on the dead body of the deceased was conducted by Dr. Zahid Farooq P.W.1 on 15-7-1996, the day of occurrence. The injury attributed to appellant with a firearm finds mention in the M.L.R. As Injury No,1/A with an exit as 1/B. There is thus no conflict between ocular account and the medical evidence.
17. ' The ocular account having been furnished, by natural witnesses of the occurrence which has intrinsic value and the same is duly corroborated by medical evidence, we are of the view that the prosecution has been successful in proving its case against the appellant beyond any shadow of doubt. However, there are some mitigating circumstances in favour of the appellant, such as; the motive alleged in the F.I.R. Was that the appellant had suspicion of illicit relation between the deceased and his sister but in the cross-examination Asghar Ali complainant admitted that he had no knowledge of illicit relation between Aslam deceased and sister of the appellant, so he himself negated the motive set up in the F.I.R.; on the same evidence Nasim alias Sheema, who was attributed a fire-arm injury on the chin of the deceased, has been acquitted by the learned trial Court and there is nothing on record whether the State or the complainant filed any appeal against his acquittal or if filed what was its result; the appellant did not repeat the shot and fourthly the deceased was a person of dubious character having a record of three criminal cases to his credit including a case of abduction as is evident from Exh.DF.
18. ' Taking all these factors to be extenuating we though maintain the conviction of the appellant under section 302(b), P.P.C. But convert the same to imprisonment of life with the benefit of section 382-B, Cr.P.C. The sentence of compensation and in default thereof is however maintained in toto.
19. The appeal filed by the appellant is dismissed with reduction in sentence. His death is not confirmed and murder reference is answered in the negative.
20. ' Criminal Revision No,322 of 2001 is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.