' MUHAMMAD FARRUKH MAHMUD, J.--- The appellant Muhammad Latif alias Kala, along with his brother Din Muhammad alias Dank, was tried by the learned Additional. Sessions Judge, Lahore in lieu of case F.I.R. No,103 registered at Police Station Manga Mandi on 24-3-1997 for offences under sections 302/34, P.P.C. Vide judgment, dated 8-4-2000, the learned trial Judge, while acquitting Din Muhammad alias Dank, convicted the appellant for offence under section 302, P.P.C. For having caused the Qatl-e-Amd of Muhammad Farooq deceased and sentenced him to death.
2. Aggrieved by his above noted conviction and sentence, the appellant has filed the instant appeal, while the learned trial Court has made a reference bearing Reference No,220 of 2000 seeking confirmation or otherwise of death sentence. Both these matters are being decided through this consolidated judgment.
3. Precisely, the facts of the prosecution case per statement of Muhammad Boota/labourer, complainant/P.W.1 (Exh P.A.), recorded by Muhammad Farooq, S.-I./S.H.O./P.W.12, on the basis of which formal F.I.R. Exh.P.A./1 was lodged by Muhammad Ashiq/A.S.-I., are that the complainant's younger brother Muhammad Farooq (deceased) had obtained a shop in Mauza Darvesh Da Kot on rent where he used to repair TV and VCR and also to rent out the TV and VCR. The deceased used to come in the morning and go to the house at evening for meals. On the fateful day, i,e, 24-3-1997, the deceased did not come in the evening for his meals, which made the complainant worried. The complainant along with Muhammad Saleem/P.W.3 went to the shop of Muhammad Farooq where they came to know that Muhammad Farooq was sitting on the shop of Muhammad Rafiq/P.W.2.
Thereafter they reached the shop of Muhammad Rafiq at about 8-9 p.m. And asked Muhammad Rafiq to make tea. Muhammad Rafiq was still making the (ea, when all of a sudden Latif alias Kala/ appellant armed with rifle and Din Muhammad alias Dank (acquitted accused) came there. Din Muhammad raised Lalkara that Muhammad Farooq be taught a lesson for not giving TV-VCR. The hue and cry raised by the complainant attracted Ashiq (not produced at the trial) to the spot who witnessed the occurrence. The appellant fired from his rifle on Muhammad Farooq, hitting him on his back and he died at the spot. The accused, while firing from the respective weapons, decamped from the spot.
' The motive as alleged in the F.I.R. Was that about 4/5 days prior to the occurrence, Muhammad Latif alias Kala asked Muhammad Farooq for TV and VCR but the latter refused, whereupon Muhammad Latif had given threats to Muhammad Farooq. Both the accused had committed the murder of Muhammad Farooq.
4. On receipt of information about the occurrence, Muhammad Farooq, S.-I./S.H.O., P.W.12, along with other police officials, went to the place of occurrence, where he recorded the statement Exh.P.A. Of Muhammad Boota and sent the same to the police station for registration of the formal F.I.R. He collected blood-stained earth from the spot and sealed the same into parcel vide memo.
Exh.P.E. He also took into possession empty bullet P.6 from the place of occurrence and sealed the same vide memo. Exh.P.F. He prepared rough site plan of the place of occurrence Exh.P.G. Then he prepared the injury statement Exh.P.H. And inquest report Exh.P.J. And sent the dead body to the mortuary for post-mortem examination. The last-worn blood clothes of the deceased, i,e, Shalwar P.4 and shirt P.5 were taken into possession through memo. Exh.P.D. On 6-4-1997, Muhammad Latif appellant was arrested and while in custody on 7-4-1997, he led to the recovery of .7 mm rifle P.1, 5 live bullets P.2/1-5 and belt P.3 which were taken into possession vide memo. Exh.P.C., attested by Muhammad Ashiq (not produced) and Iftikhar constable/P.W.6. After completion of investigation, the appellant along with his acquitted co-accused was challaned to face the trial.
5. To substantiate its version at the trial, the prosecution produced thirteen witnesses. Ocular account was furnished by Muhammad Boota, complainant/P.W.1, Muhammad Rafiq/P.W.2 and Muhammad Saleem/P.W.3. In addition to that Muhammad Boota also stated about the motive.
Muhammad Iftikhar constable/P.W.6 testified the recovery of 0.7 mm rifle effected at the instance of the appellant. Dr. Amir Mirza P.W.13, who conducted post-mortem examination on the dead body of the deceased, found two injuries on his person. In the opinion of the doctor, both the injuries were caused by fire-arm weapon, which caused the death of the deceased and the same were sufficient to cause death in the ordinary course of nature. Duration between the injury and death was immediate and the duration between death and post-mortem examination was 15 to 20 hours. After tendering the reports of Chemical Examiner Exh.P.N., Serologist Exh.P.O. And that of Forensic Science Laboratory Exh.P,M., the prosecution closed its evidence. The rest of the evidence was formal in nature and need not be discussed.
6. In his statement recorded under section 342, Cr.P.C., Muhammad Latif/appellant pleaded his innocence and false implication in the case, in answer to question No,8, in the following words:-- "This case has been falsely registered against me. One Muhammad Salim son of Muhammad Rafique (P.W.) brought the deceased Farooq on his motorcycle from his house to their shop. Rafiq P.W. And Muhammad Salim his son used to reprimand him not to meet Mst. Shahnaz alias Gudi daughter of Muhammad Rafiq P.W. They both committed the murder of Muhammad Farooq due to this reason. Muhammad Latif accused was not present at the place of occurrence and the time of occurrence as he was present in the house of his sister situated in Harchoke Tehsil Chunian District Kasur."
' The appellant did not appear as his own witness as enjoined by section 340(2), Cr.P.C. He, however, produced two D.Ws., namely, Muhammad Rafiq son of Khushi Muhammad/D.W.1 and Rahmat Masih/D . W .
7. Learned counsel for the appellant submits that presence of Muhammad Boota/P.W.1 and Muhammad Saleem/P.W.3, who were both related to the deceased, is doubtful; that though the motive was set by he prosecution but it could not be proved through independent evidence during trial; that the motive was very weak; Muhammad Rafiq/P.W.2 has been disbelieved qua Din Muhammad/co-accused and he had made improvement during trial by stating that he grappled with Muhammad Latif appellant, who, after getting himself released, fired at the deceased; that the story of the prosecution was not plausible; that it was a night time occurrence and the appellant could not be convicted for the infirmities in his defence; that there was no source of light at the place of occurrence; that as there was no source of light, the witnesses were not in a position to identify the appellant, who has been implicated merely on suspicion; that according to the witnesses, the fire was effected from a distance of eight feet, while according to the medical evidence, the distance was more than three feet. The learned counsel has referred to site plan, according to which the fire was affected from a distance of thirty feet. After arguing the case at some length, the learned counsel for the appellant has prayed for reduction in sentence and has submitted that the first version of the appellant clearly denotes that the murder was the result of family honour. While placing reliance on the case of Muhammad Yaqoob v. The State PLD 1969 Lah.
548, he has submitted that the learned Court even at appellate stage could look into the first version of the appellant. The learned A.A.-G. Appearing on behalf of the State has submitted that it was a fully proved case and that presence of Muhammad Rafiq/P.W.2 in whose shop the occurrence took place has neither been challenged nor denied; that it was also not denied that he was neither related to the deceased nor inimical towards the appellant to depose falsely against the appellant; that the statement of Muhammad Rafiq was fully supported by the medical evidence and fully corroborated by the factum of recovery of weapon and its tallying with the empty recovered from the spot. However, when confronted with the first version of the appellant, the learned A.A.-G. Submitted that as far as the conviction was being maintained, he felt satisfied and had nothing much to say about the quantum of sentence which lied within the discretion of the Court.
8. We have heard the learned counsel for the parties and have also gone through the relevant record of the case.
9. The occurrence took place inside the shop of Muhammad Rafiq/P.W:2. The place of occurrence and the time of occurrence have not been challenged at all. Similarly, the presence of Muhammad Rafiq has also not been challenged. Muhammad Rafiq, who is star-witness of he case, had no previous or grudge against the appellant, so as to involve him in a false case. He was also not related to the deceased. Despite lengthy cross-examination, no dent could be caused in the veracity of his statement which is confidence inspiring and is fully supported by medical evidence.
Even if we do not consider the statements of Muhammad Boota, father of the deceased, and Muhammad Saleem, cousin of the deceased, the solitary statement of Muhammad Rafiq is sufficient to warrant conviction. His statement is fully supported by the medical evidence as well as by the factum of recovery of weapon at the instance of the appellant, especially when the empty recovered from the scene of occurrence and sent much earlier than the arrest of the accused wedded with the weapon. The defence plea taken by the appellant during trial consists of two parts. One was that he was not present at the time of occurrence and remained in the house of Muhammad Rafiq/D.W.2 from 22-3-1997 to 25-3-1997. Not only that D. W.1 never appeared before the Investigating Officer but not a single question was asked from the Investigating Officer on that behalf. It is clearly an afterthought and the appellant miserably failed to prove his alibi. The second portion of the defence plea that Muhammad Saleem son of Muhammad Rafiq/P.W. Brought the deceased in the shop and thereafter he was murdered, as there was suspicion of relationship between the daughter, of Muhammad Rafiq and the deceased, has also no legs to stand and is neither supported by any evidence or by the circumstances of the case.
9-A. The upshot of the above discussions is that the prosecution has successfully proved its case against the appellant beyond any doubt and the learned counsel for the appellant rightly did not press for the acquittal after arguing the case briefly.
10. Having come to this conclusion, we have given our anxious thought to the quantum of sentence in the instant case. It has been noticed by us that the prosecution set motive that 4/5 days prior to the occurrence, the appellant had asked for TV and VCR from the deceased who refused. No independent evidence has been produced to prove the motive. Furthermore, the motive was trivial in nature. Though the prosecution cannot refer to the statement of accused/appellant recorded by the police soon after his arrest but the appellant can, if he chooses to bring that version on the record of the case and the same can be looked into on the asking of the accused himself, in the interest of justice, even at appellate stage. Reliance is placed on Muhammad Yaqoob's case (supra) cited by the learned counsel for the appellant. Perusal of the first version of the appellant reveals that he was informed that in his absence, Muhammad Farooq deceased visited his house and had sexual intercourse with his unmarried daughter Mst. Shabana. The appellant inquired from his daughter who confessed. Thereafter the appellant sent his brother Din Muhammad to house of Muhammad Farooq where Din Muhammad was not properly treated by the relatives of Muhammad Farooq and their response was that they (the appellant party) should murder their daughter. Din Muhammad reported back the incident to the appellant which maddened the appellant with rage, who took his licensed rifle and committed the murder of Muhammad Farooq in the shop of Muhammad Rafiq. It has already been noted above that the motive set by the prosecution was trivial and the stance taken by the appellant soon after his arrest is plausible which makes it a case of family honour. Thus, while maintaining the conviction of the appellant for offence under section 302(b), P.P.C., we alter the sentence to imprisonment for life, as E the same would, meet the ends of justice in the circumstances of the case. Benefit of section 382-B, Cr.P.C. Is given to the appellant. The learned trial Court failed to take notice of the mandatory provisions of section 544-A, Cr.P.C. Hence, we direct the appellant to pay compensation rupees fifty thousands to the legal heirs of the deceased, in default of realization or payment whereof the appellant would suffer S.I. For six months.
11. With the above modification/reduction in sentence, this appeal is partly allowed. The death sentence is not confirmed. The Murder Reference is answered in the negative.