' MIAN MUHAMMAD NAJUM-UZ-ZAMAN, J.---Appellant along with his co-accused namely Kala alias Shafique was tried by Additional Sessions Judge, Okara in case F.I.R. No,517 of 1996, dated 21-12-1996 for the offence under section 302/34, P.P.C. Registered at Police Station A-Division, Kasur, who vide judgment, dated 12-3-2001 convicted both the accused under section 302(b)/34, P.P.C. And sentenced appellant to death, whereas his co-accused was awardedimprisonment for life. Both of them were also directed to pay Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., or in default whereof to undergo three months' R.I. Trial Court also extended benefit of section 382-B, Cr.P.C. In favour of co-accused of the appellant.
2. Feeling aggrieved by the impugned judgment, appellant has filed the instant appeal through Jail, whereas the Trial Court has also made a reference (M.R. 201/2001) seeking confirmation of death sentence awarded to the appellant. Both these matters are being disposed of together by this single judgment. The co-accused of appellant absconded at the time of announcement of the judgment and the warrants of his arrest have already been issued by the Trial Court.
3. In brief the case of the prosecution as taken down in the F.I.R. Isthat the complainant was resident of Mohallah Jammat Pura. His younger brother Shakeel Ahmed was a goldsmith.
Muhammad Islam alias Loata (appellant) resident of Nafees Colony had given some amount to Shakeel Ahmed for preparation of "Pazaib", upon which Shakeel Ahmed prepared the said ornament as per desire of Muhammad Islam and after settlement of account Rs,500 were to be paid by Shakeel Ahmed to Muhammad Islam alias Loata. Statedly the appellant came to their house twice/thrice to receive the amount and had also extended for dire consequences if the amount was not paid. Statedly on 21-12-1996 at 1 p.m. The complainant along with Shakeel Ahmed from the house of his uncle at Nafeez Colony were going towards their house when Muhammad Islam alias Loata and Kala Gujjar son of Haq Sain resident of Nafees Colony , both armed with pistol .30 bore intercepted them. On seeing them the complainant party turned back when Muhammad Islam alias Loata fired from his pistol which hit Shakeel Ahmad on the left buttock, the second fire made by Kala Gujjar luckily did not hit anybody. On receiving the injury Shakeel Ahmed fell down, whereupon Muhammad Islam alias Loata repeated second fire which hit Shakeel Ahmed on the left thigh. The complainant along with Shakeel Ahmad, Riaz Ahmad and Jahangir, who had also witnessed the occurrence, raised hue and cry and both the accused fled away while firing in the air. Statedly Shakeel Ahmed died at the spot.
4. The investigation of this case was conducted by Abdul Haq, S.-I. P. W.10 who after complying with legal formalities submitted challan before the Trial Court where prosecution produced eleven witnesses including Haji Jameel Ahmed complainant. P.W.7 and Riaz Ahmed P.W.8, the eye- witnesses of the occurrence, to prove the charge against the appellant and his co-accused.
5. Trial Court also examined the appellant and his co-accused undersection 342, Cr.P.C. While answering to the question. "Why this case against you and why the P.Ws. Have deposed against you?", the appellant replied as under:-- "It is a false case. I have been roped in this false case due to grudge with complainant party. The deceased was an addict and he used to visit along with his other addicts in the 'house of Mst.
Inayat Bibi who had two/three daughters living with her. They used to enjoy whole night there and using Narcotic. The whole Nafees Colony was fed of these immoral activities. They used to quarrel with each other in that house. I and other persons from Nafees Colony complained about these immoral activities of the deceased and his other companions to the complainant and his father but they instead of doing some thing good for his deceased son admonished me and my other fellows and took our advice in all ill-manner and bored grudge on account of this against me. I had also along complained about the immoral acts of the deceased that is why the complainant party was deadly against me and they had motive to falsely implicate me in this case due to above- mentioned grudge. The investigation of this case was also conduced by Mehmood Ahmed, D.S.P., City Circle Kasur, and in his Zimini No,17, dated 10-4-1997 he had clearly given findings that I was seen empty-handed. In this respect 12 to 13 independent witnesses of Nafees Colony had sworn affidavits that I was empty-handed and I was innocent. They have exonerated me in this case. The affidavits of 12/13 persons are attached with the police file. The above-mentioned D.S.P. Has given findings that as the challan has been submitted, therefore, I leave the matter of innocence to the Hon'ble Court vide Zimini No,19, dated 23-5-1997. The deceased was challaned in so many cases of Narcotic and in one case of dacoity also. I have been falsely implicated .In this case at the behest of the complainant party who are real brothers and brother-in-law-of the deceased. Nobody from Nafees Colony which is the thickly-populated locality as admitted by the P.Ws. Has been cited as a witness. Either as an eye-witness, motive for the crime or as a recovery witness. This fact also is sufficient to negate the prosecution story. The P.Ws. Jameel Ahmad and Muhammad Riaz both shown as an eye-witnesses are close relatives of the deceased Muhammad Jameel P.W. Is real brother of Shakeel Ahmad deceased while Muhammad Riaz P.W. Is husband of the real sister of the deceased. They had grudge against me as I had complained prior to the occurrence about the immoral activities and use of narcotic by the deceased along with his other co-dacoits which had engaged them and due to this fact they bore grudge against me and had falsely implicated me in this case by becoming false witnesses. Both the P. Ws. Do not reside in the Nafees colony but their residence is miles away from the place of occurrence. In the whole case no independent witness has appeared or examined, as the P.W. The case consists of either the witness of the police or real kith and kins of the deceased."
' Appellant did not make any statement under section 340(2), Cr.P.C. However, he produced Mehmood Ahmad Cheema, D.S.P. D.W.1 in his defence. The crux of the statement of this witness is that according to the investigation conducted by him, the appellant was empty-handed at the spot and he left the matter of appellant's innocence to the Honourable Court.
' Trial Court after appraisal of evidence available on record vide judgment, dated 13-3-2001, convicted and sentenced the appellant as narrated earlier.
6. Learned counsel for the appellant while challenging the legality of the impugned judgment submitted that the F.I.R. In this case was got registered after consultation and deliberation, the eye- witnesses were not present at the spot but were introduced later on during the investigation of this case; the medical evidence contradicts the ocular account; there is no evidence on record to show that the pistol recovered at the instance of the appellant was used during this occurrence. Learned counsel further submitted that the motive for the occurrence was never proved before the Trial Court and that the learned Trial Court in the said circumstances had erroneously convicted and sentenced the appellant. Conversely counsel for the State while supporting the impugned judgment vehemently opposed the arguments raised by counsel for the appellant.
7. With the able assistance of learned counsel for the parties, we have minutely gone through the record of this case and have observed that it is a case of r romptly lodged F.I.R. This occurrence took place during the bright hours at the day at 1 p.m. On the street of village surrounded by the houses. The matter was reported to the police within half an hour of the occurrence by the complainant namely Jameel Ahmad P.W.7 (brother of the deceased). This F.I.R. Contains all the minor details of the occurrence and specific role qua the appellant and his co-accused. The promptness in lodging the F.I.R. In the circumstances of his case has ruled out the possibility of false involvement of the appellant and fabrication of the story.
' On the day of occurrence deceased Shakeel along with his brother Jameel Ahmed P.W.7 was going towards his house after paying visit to his uncle and when they reached in the street appellant and his co-accused Kala Gujjar being armed with fire-arms (i.e, pistols) intercepted and launched attack. The fires made by the appellant hit Shakeel Ahmed on left thigh and left buttock whereas the fire made by co-accused did not hit anybody. Shakeel Ahmed deceased succumbed to the injuries at the spot. At the relevant time Jhangir (given up P.W.) and Riaz Ahmed P.W.8 were also present and had seen the occurrence. The eye-witnesses who have deposed before the Trial Court have not only supported the prosecution case by deposing in a very natural and normal manner but also painted a vivid picture of the occurrence. The ocular account also finds support from the medical evidence. The locations, duration and nature of injuries as narrated by the eye- witnesses find confirmation from the Medico-legal Reports (post-mortem report) prepared by Dr. Mumtaz Ahmed P.W.9.
The text of the F.I.R. Available on paper book from pages 93 to 96 reveals that during this occurrence, appellant had caused injuries to the deceased on the left buttock and right thigh but on perusing the original copy of F.I.R. Which is available on the judicial record reveals that there was clerical mistake in the record prepared by the office while compiling the paper book and in fact the words mentioned in the complaint Exh.P.W.3/1 are that Shakeel Ahmed appellant had caused injuries to the deceased on the left buttock and left thigh and in this view of the matter the contentions of learned counsel for the appellant that there is contradiction between the medical evidence and ocular account have no force.
We have also observed that during the occurrence appellant also led to the recovery of pistol which was allegedly used by him during this occurrence. No doubt during the investigation no empty was recovered from the spot and there is no direct evidence on record to show that the said crime weapon was actually used during this occurrence but still the recovery of the said weapon is a strong circumstance to strengthen the prosecution case.
In the light of the ocular account which is persuasive in nature and inspires confidence we feel safe to rely upon the same even in the absence of any corroborative piece of evidence.
As far the quantum of sentence of the appellant is concerned, we have observed that motive for the commission of offence was the money dispute between the deceased and the appellant but before the Trial Court except complainant Jameel Ahmed P.W.7 no other witness has deposed in this regard. So much so the Investigating Officer also made no attempt to collect any data in support of this part of the prosecution case. We have also observed that at the relevant time appellant had ample opportunity to cause injuries to the deceased on the vital part of the deceased but the injuries were caused by him on the lower lims of the body i.e, left thigh and in the circumstances the possibility that the appellant never had any intention to commit the murder of Shakeel Ahmed also could not be ruled out. In the said circumstances in our view, the award of capital sentence is not justifiable and lenient view in this regard would meet the ends of justice.
Accordingly finding no force in this appeal the same stands dismissed, however, sentence of the appellant is .Reduced to the imprisonment for life with the benefit of section 382-B, Cr.P.C.
Appellant shall also pay the amount of compensation to the legal heirs of the deceased on the same terms as fixed by the Trial Court.
' Resultantly death sentence awarded to the appellant is Not Confirmed and murder reference i.e, M.R. No,201 of 2001 is answered in the Negative.
Sentences reduced.