' MUHAMMAD FARRUKH MAHMUD, J.---The appellant Muhammad Saleem Khan was tried by the learned Sessions Judge, Mianwali, in lieu of case F.I.R. No,12 registered at P.S. Musakhel on 28-1-1998 for offence under section 302, P.P.C. Vide judgment, dated 18-11-2002, Rao Akbar Ali, the learned trial Judge, Mianwali, convicted and sentenced the appellant as under:--
(i) for offence under section 302(b), P.P.C. To death plus payment of rupees one lac, as compensation, to the legal heirs of the deceased, in default in payment whereof to further undergo S.I. For six months;
(ii) for offence under section 449, P.P.C. To imprisonment for life with benefit of section 382-B, Cr .P.C.
2. Aggrieved by his above noted convictions and sentences, the appellant has filed the instant appeal, while Ahmed Nawaz/complainant has filed Criminal Revision No,1200 of 2002, for imposition of fine upon the appellant/convict for offence under section 449, P.P.C. Whereas the learned trial Court has made a reference bearing Murder Reference No,898 of 2002 seeking confirmation or otherwise of death sentence imposed upon the appellant. All these matters are being decided through this consolidated judgment.
3. Precisely, the facts of the case per F.I.R. Exh.P.G. Lodged at the instance of Ahmad Nawaz, complainant/P.W.10, are that on the night in between 27/28-1-1998, he and his step brothers from the side of his father, namely, Zia Ullah Khan (deceased), Hafiz Muhammad Ajmal Khan P.W.1 and Inam Ullah Khan, who also resided with him in the same house, after having said their Isha Prayer, slept in their respective rooms. Two electric bulbs in the Haveli were on. At about 3-15 a.m. On 28-1- 1998, they woke up for Sehri. They all came out of their rooms to Answer the call of nature. In the meantime, Muhammad Saleem Khan appellant, armed with .222 rifle, who had hidden himself at somewhere in the Haveli, suddenly appeared there and threatened Zia Ullah Khan to get ready; he had come to take revenge of his insult and simultaneously made straight burst fire, hitting Zia Ullah Khan on his right leg, in view whereof Zia Ullah Khan fell down, while the appellant decamped from the scene of occurrence through the door of the Haveli.
4. The motive as alleged in the F.I.R. Was that 15/20 days prior to the occurrence, an altercation took place between Muhammad Saleem and complainant's brothers Zaka Ullah and Zia Ullah over playing of Ludo. Zia Ullah and Zaka Ullah gave slaps to Muhammad Saleem. On account of that grudge the appellant had made a murderous assault on Zia Ullah with fire arm. Zia Ullah Khan in injured condition, was taken to Civil Hospital, Mianwali, for treatment, where he succumbed to the injuries.
5. Muhammad Iqbal, S.I./P.W.12, after registration of the case at the instance of the complainant, went to D.H.Q. Hospital, Mianwali; prepared injury statement Exh.P.D. And inquest report Exh.P.E. Of the deceased and sent the dead body for post-mortem examination. He then proceeded to the spot; prepared rought site plan thereof Exh.P.F. He collected blood stained earth from the spot and sealed the same into parcel vide memo. Exh.P.H. He also collected four empties P-5/1-4 from the spot and took the same into possession vide memo. Exh.P.J. He also took into possession pieces of wood P-6 through memo. Exh.P.K. After post-mortem examination, he took into possession blood stained clothes of the deceased, i.e, shirt P-1 and Shalwar P-2 through memo. Exh.P.B. He got prepared from Muhammad Shafiq, Draftsman/P.W.1, site plan Exh. P. A. And Exh. P. A. /1 . The appellant was arrested by Ramzan Shahid, Inspector/S. H . 0 . /P . W . 13 , on 26-3-1998 and on 29-3- 1998, while in custody, the appellant led to the recovery of rifle P-3 and on unloading the same, ten bullets P-4/1-10 were recovered from its magazine, which were taken into possession vide memo.
Exh.P.F. After completion of investigation, the appellant was challaned to face the trial.
6. To substantiate its version at the trial, the prosecution examined fourteen witnesses. Ocular account was furnished by Ahmad Nawaz/P.W.10 and Hafiz Muhammad Ajmal/P.W.11. In addition to that, Ahmad Nawaz P.W.10 also stated about the motive. Muhammad Iqbal, S.-I./P.W.12, stated about the registration of the case and the investigation thereafter.
' Ramzan Shahid, S. H .0. /P. W. 13 , stated about the arrest and recovery of crime weapon at the instance of the appellant. Dr. Muhammad Rafiq Khan P.W.7, who conducted postmortem examination on the dead body of the deceased, while observing one fire arm entry wound and two fire arm exit wounds, on the person of the deceased, opined that the cause of death was the aforesaid injuries which damaged the blood vessels and the muscles of the right thigh, and were serious and dangerous to life and were sufficient to cause death in the ordinary course of nature.
According to the Doctor, duration between injuries and death was within four hours, while duration between death and post-mortem examination was 6 to 10 hours. Muhammad Shafiq, Draftsman/P.W.1, prepared the scaled site plan Exh.P.A. At the instance of police and on the pointation of the witnesses. The rest of the evidence was formal in nature and need not be discussed. After tendering the reports of Chemical Examiner Exh.P.14, Serologist Exh.P.N. And Forensic Science Laboratory Exh.P.O. In evidence, the prosecution closed its side. Thereafter, in his statement recorded under section 342, Cr.P.C., the appellant pleaded his innocence and false implication for the reason that he had slapped Zaka Ullah brother of the deceased in November, 1997. The appellant did not appear as his own witness under section 340(2), Cr.P.C. However, he produced documents Exh.D.E. To Exh.D.H. And also examined GuI Hamid, H.C./ Moharrar as D.W.I.
7. Learned counsel for the appellant has, at the very outset, submitted that he would not press for the acquittal and would pray for lesser sentence in the circumstances of the case, as no serious enmity existed between the parties prior to the occurrence and the origin of the fight has been suppressed. The learned counsel has also referred to the seat of the injury. Conversely, the learned counsel appearing on behalf of the complainant has argued that both the eye-witnesses have given confidence aspiring account of the occurrence; that the matter was reported to the police without any loss of time; that the assembly of the P.Ws. And the deceased at the time of occurrence was natural, as it was the month of Ramzan and the P.Ws. Resided in the same Haveli; that the ocular account is fully supported by the medical evidence and the circumstances of the case; that it was not necessary for prosecution to produce each and every witness in order to prove its case and the statement of Ahmad Nawaz was sufficient for that purpose. Even otherwise the appellant admits that he had quarrelled with Zaka Ullah, brother of the deceased, and given beating to him; that the appellant admits that first quarrel took place in November, 1997, so it could not be said that it was a sudden affair. It was, in fact, a cold blooded murder and the appellant deserved no leniency. The learned counsel appearing on behalf of the State has adopted the line of arguments advanced by the learned counsel for the complainant.
8. We have heard the learned counsel for the parties at length and have also gone through the entire record of the case.
8-A. Undeniably, the occurrence took place in the Haveli of the deceased. Hafiz Muhammad Ajmal P.W.11 is the real brother of the deceased, mother of Ahmad Nawaz, complainant/P.W.10, after the death of her husband married with father of the deceased. Ahmad Nawaz complainant was born after two months of the death of his father and since then he was living with his mother, so the presence of the eyewitnesses at the spot was natural. The statements of the eye-witnesses are supported by the medical evidence, as the deceased lost his life due to fire-arm injuries, and corroborated by the factum of promptly lodging of F.I.R. However, the recovery of empties and their tallying with the weapon allegedly recovered at the instance of the appellant is not free from doubt. Ramzan Shahid, S.H.O./P.W.13, admitted during cross-examination that Forensic Science Laboratory issued a letter to D.S.P., Mianwali, for deputing the I.O. To attend the laboratory in view of the difficulties faced by it. On the direction of D.S.P. He attended the laboratory and it was pointed out to him that the I.O. Who collected the crime empties be sent to laboratory. He informed Muhammad Iqbal, S.-L/I.O., who had collected the crime empties but he did not know whether Muhammad Iqbal went to the laboratory or not. Muhammad Ijaz Khan, Fire Arms Expert, also appeared before the trial Court and his statement is available at page 77 of the paper book. He admitted that Exh.D.B., through which the I.O. Of the case was required to attend the office, was correct copy of the letter issued at his request. He further stated that Ramzan Shahid went to him, clarified the position and satisfied him but he directed Ramzan Shahid to send Muhammad Iqbal/S.-I. Who collected the crime empties from the spot and Muhammad Iqbal was summoned to compare the crime empties of the sealed parcel which was received in the office regarding the marking on the empties in the recovery memo. But Muhammad Iqbal/S.-I. Did not attend the office.
However, leaving aside the recovery evidence, the prosecution has successfully proved its case against the appellant in the above noted circumstances and the learned counsel for the appellant has very wisely not pressed for the acquittal.
9. Now coming to the question of sentence, the prosecution did set the motive in the F.I.R. That 15/20 days prior to occurrence, the appellant and the deceased quarrelled with each other while playing Ludo. Zia Ullah and Zaka Ullah gave slaps to Muhammad Saleem Khan. The motive is not supported by any independent evidence. Had the appellant wanted to take revenge of his insult, he would not have waited for 15/20 days and would not have chosen the Haveli of the deceased for committing the offence, as the same was occupied by so many male members and he could have been apprehended and dealt with at the spot. Except for the quarrel during playing Ludo gave, no enmity or existed between the appellant and the deceased. According to doctor, Zia Ullah Khan died within four hours of the injuries and the post-mortem examination was conducted within 6 to 10 hours after the death. The doctor had conducted the post-mortem examination at 11-30 a.m. And the deceased must have received injuries much earlier than 3-15 a.m. Though the prosecution alleged that the appellant caused a burst fire which hit on the right leg of the deceased yet according to the doctor, there was one single entry wound on the medial side of right thigh 20 c.m. Below the anterior superior iliac spine. The other two injuries were exit wounds. We have also noticed that the occurrence took place in the month of January, while according to inquest report and the observations recorded by P.W.7 Dr. Muhammad Rafiq Khan, the deceased was wearing Shirt and Shalwar of Khaddar. He was not wearing any woollies. The prosecution did allege that Muhammad Saleem Khan was hiding in the Haveli but the place where he was hiding has not been mentioned in the F.I.R. Interestingly, in the scaled site plan Exh.P.A. Which was prepared on 3-2-1998, the place from where the appellant entered in the house and the place wherefrom he escaped from the house have been incorporated but the place of hiding has not been indicated therein. It appears that on the fateful night, Muhammad Saleem Khan was playing Ludo with the complainant party in a room inside the Haveli when some quarrel erupted between the deceased and Muhammad Saleem Khan which resulted into the present occurrence. We are not convinced that the deceased and the appellant quarrelled 15/20 days prior to the occurrence. In the above-noted circumstances, we feel that it would be safer to reduce the sentence to imprisonment for life.
Consequently, while maintaining the conviction of the appellant for offence under section 302(b), P.P.C., we alter the sentence to imprisonment for life. Benefit of section 382-B, Cr.P.C. Is extended to the appellant. The amount of compensation as inflicted by the learned trial Court upon the appellant is upheld.
10. However, as we have come to the conclusion that the occurrence took place while the appellant was playing Ludo with the deceased and others, the conviction and sentence of the appellant for offence under section 449, P.P.C. Is set aside. Thus, Criminal Revision No,1200 of 2002 filed by Ahmad Nawaz, complainant, has no merit.
11. With the above reduction in the sentence, this appeal is partly allowed. The death sentence is not confirmed. The murder reference is answered in the negative. Criminal Revision No,1200 of 2000 is dismissed.
Sentence reduced.