SHAH JEHAN KHAN, J.----Saleem Khan son of Shabir Khan, appellant herein, charge under section 302, P.P.C. Vide F.I.R. No,1288 dated 3-10-1998 registered at Police Station Charsadda for committing the murder of Wahid Gul son of Haroon was tried by the learned Additional Sessions Judge-IV Charasadda who vide his judgment dated 31-1-2005 having found him guilty convicted and sentenced him under section 302(b), P.P.C. To death to be hanged by the neck until he is declared dead by the authorized Medical Officer. He was also ordered to pay compensation amounting to Rs,100,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Recoverable as arrears of land revenue or in default to undergo six monthsS.-I. Feeling aggrieved of his conviction and sentence the appellant has preferred instant jail criminal appeal. The learned Sessions Judge Charasadda has sent Murder Reference No,7 of 2005 for confirmation of death sentence awarded to the appellant. The complainant Tauheedullah has also filed Criminal Revision No,29 of 2005 for enhancement of the compensation amount. All the three matters are being disposed of by this single judgment.
2. Facts of the prosecution case as disclosed by Tauheedullah complainant, brother of deceased in brief are that on 3-10-1998 at 1330 hours he along with his brother Wahid Gul deceased was busy in selling cloth on Tangi Road near Ghafoor Market when Saleem son of Bashir duly armed with pistol came there and started abusing the complainant party. When the accused was prevented from abuses, he started firing at Wahid Gul brother of the complainant with intention of killing him with which he was hit and injured. Besides the complainant the occurrence was witnesses by the people present at the spot. Motive for the occurrence is alleged to be an alteraction between Saleem accused and the complainant party on the day of occurrence in the morning.
3. Hameedullah Khan S.-I. (P.W.9) posted in D.H.Q. Hospital Charsadda recorded the report lodged by Tauheedullah brother of the deceased (then injured) in the shape of Murasila Exh.P.A./1 and sent the same to the police station for registration of F.I.R. He prepared injury sheet of Wahid Gul (Exh.P.M./2) and entrusted him to the doctor for examination and treatment. On the same day the injured Wahid Gul succumbed to the injuries in the Hospital at 1410 hours, information whereof was communicated by P.W.9 to the Police Station through written report where a case was registered accordingly against the accused under section 302, P.P.C. Vide F.I.R. Exh.P.A. He prepared the inquest report Exh.P.W.9/1.
4. The deceased then injured was examined by Dr. Zahir Shah (P.W.3) on 3-10-1998 at 1350 hours who found the following on his persons:--
(1) The patient is unconscious.
(2) BP and pulse not recordable.
(3) Fire-arm entrance wound at the back right side just right lateral lambo sacral junction, size 1 x 1 cm.
(4) Fire-arm exist wound erroneously recorded as entry wound at upper end of thigh anteriorly size 2 x 2 cm. The patient treated in Casualty as an acute emergency with the decadran, solucortf, hacmocale, oxygen and cardiac massage, but the patient died at 1410 hours on 3-10-1998 due to hypo volumic shock.
As per his opinion, the nature of injuries was dangerous and probable time between injuries and his examination was within one hour and the kind of weapon used was fire-arm. Medical report prepared by him is Exh.P.W.3/1 which is correct and correctly bear his signature.
5. The said doctor also conducted autopsy on the dead body of Wahid Gul deceased and found the following injuries on his person:- External Examination No mark of legation, body hot, clothing having hole, because of fire-arm injuries.
Wounds:- 1.Fire-arm entrance wound 1x1 cm in size on back right side just lateral to lambo sacral juncition.
2. Fire-arm exit wound sizing 2x2 cm at the upper extreme of left thigh anteriorly.
Abdomen: Peritoneum large intestine injured with faecal masses. Bladder was also injured having blood and urine and blood vessels injured.
Thorax: Thorax and chest normal.
In his opinion, the cause of death was injuries due to fire-arm because of internal bleeding, hypo volumic shock. Probable elapsing between injury and death was within one hour and between death and PM also within one hour.
6. Muhammad Islam Khan, S.-I. (P.W.8) after registering the case in the shape of F.I.R. Proceeded to the spot and arrested the appellant who was already apprehended by the traffic personnel. He recovered one .30 bore pistol (Exh.Pl) along with 5 live rounds (Exh.P.3) and one licence copy (Exh.P.4) vide recovery memo. (Exh.PR). He prepared the site-plan (Exh.PB) at the pointation of complainant and the eye-witnesses and took into possession 3 empties (Exh.P.5) of .30 bore vide recovery memo. Exh.P.R./1. He recorded statements of P. Ws. Under section 161, Cr.P.C. And took into possession blood-stained garments of deceased consisting of one Qamees Exh.PZ, Shalwar Exh.PZ/1, Banyan Exh.PZ/2 having corresponding cut marks brought by Hameedullah Khan A.S.-I.
And produced the accused before the Magistrate for recording his confessional statement. He sent the .30 bore pistol along with empties and live rounds to the Arms Expert, whose report is Exh.PW.8/2. He also sent the blood-stained garments of the deceased to the F.S.L., for examination, report whereof is Exh.PW.8/4 in positive. After completion of the investigation he handed over the case to Taj Muhammad S.H.O. (P.W.7) who submitted complete challan in the case.
7. In order to establish its case, the prosecution produced as many as nine witnesses in the witness box. The appellant when examined under section 342, Cr.P.C., denied all the charges levelled against him and pleaded innocence. He did not opt to produce defence but preferred to be examined on oath. However, later on he made a statement on 14-12-2004 showing his inability to be examined on oath.
8. We heard the learned counsel for convict-appellant who did not challenge the conviction of the appellant but press the appeal for reduction in sentence. He referred to the contents of F.I.R.
Wherein complainant who is the brother of deceased has disclosed a motive of altercation between the appellant and deceased in the morning but the said witness while appearing in the witness-box as P.W.4 did not utter a single word about the motive, thus the motive alleged in the First Information Report was subsequently suppressed malafidely or that he was unable to establish the same through evidence. Once motive is alleged it is the burden of prosecution to establish the same at the trial failing which the prosecution has to suffer and the under trial accused cannot be awarded maximum penalty of death. In this regard he relied upon Feroze Khan v. The State (2002 SCM R 99), Muhammad Bashir v. The State (2005 PCr.LJ 1135) Manzoor Ahmad v.
The State (2003 PCr.LJ 254). He also referred to the confessional statement of appellant which is though available on record but the same was not exhibited at the trial. Once the statement of accused relied upon by the prosecution in submission of complete challan cannot abandon it at the trial and by abandoning the same, an adverse influence would be drawn against the prosecution. In his said voluntary judicial confession, the appellant has not only disclosed the background of the occurrence but the actual happening at the time of occurrence. The deceased has sustained only one inlet wound while the pistol which was taken into possession from the appellant was containing 5 live rounds in it. The deceased sustained solitary entry wound at the back right side just right lateral lambo sacral junction causing an exit at the upper end of thigh which cannot be termed an injury on the vital body. Had there been intention of killing, there was nothing to prevent the appellant from successive firing shot and in such circumstances the appellant cannot be awarded death penalty. In support of his submissions, he relied on Maqsood Khan v. The State (2003 PCr.LJ 1165), Saadullah Jan v. The State (2002 PCr.LJ 1463) and Muhammad Ashraf v. Tahir and others (2005 SCM R 383).
9. Learned State counsel opposed the reduction in penalty on the ground that it is a daylight occurrence and the appellant had come to the spot after due preparation. He is the single accused charged for the commission of offence and the charge against him has been established through cogent evidence in the shape of his arrest near the spot along with crime weapon which was established to have been used in the commission of offence and recovery of empty from the spot. No motive for false implication was agitated and the appellant has just denied the allegation without giving his own evidence on oath or producing evidence on his defence. The prosecution successfully established guilt of appellant and the normal penalty for committing Qatl-e-Amd is death sentence. The trial Court has awarded meagre amount or compensation which deserves enhancement as the deceased was a young man of 27 years. The learned Additional Advocate- General adopted the arguments of learned counsel for the complainant.
10. Prosecution evidence need not be discussed in detail as conviction of the appellant has not been challenged at the bar. So far as the contention regarding reduction in penalty is concerned, the Court while awarding sentence has to keep in mind as to whether any mitigating circumstances exists which benefit could be granted to the convict? If there are mitigating circumstance, an accused under trial Court be awarded only life imprisonment with compensation under section 544-A of the Cr.P.C. After holding the accused guilty of Qatl-e Amd. In a case, the prosecution established the charge against an accused for committing Qatl-e-Amd and there is no mitigating circumstance, the Court has to grant normal penalty death under section 302(2) of the C.P.C.
11. It has been observed a number of times by the Superior Courts in the country that motive once alleged is not proved at the trial, shall be treated as mitigating circumstance and the accused shall be granted its benefit and awarding lesser punishment provided under the law. In case of Muhammad Bashir (2005 PCr.LJ 1135), it was held that prosecution is not bound to set up a motive, but once it sets up the same and fails to establish it then it is the prosecution that suffers. In Manzoor Ahmad's case (2003 PCr.LJ 354), it was laid down that absence or weakness of motive was not considered as ground for awarding lesser penalty, but when motive had been set up by prosecution, then onus lay upon the prosecution to prove the same. In Feroz Khan's case (2002 SCM R 99), it was observed that although lack of motive at times has not been accepted as a mitigating circumstance, but when one or two motives are set up and the prosecution witnesses are waivering and jump from one motive to another, it assumes the nature of a mitigating circumstance.
12. The prosecution has deliberately suppressed the voluntary judicial confession though retracted by the appellant in his statement under section 342, Cr.P.C. In his said statement he has stated that he was owing Rs,6,750 to the deceased and his brother Tauheedullah (P.W.4). On the day of occurrence he had gone to their place of business demanding the aforesaid debt money on which both of them gave him beating on which there was grappling between them in the course whereof his pistol fell on the ground taken over by the deceased and his brother Tauheedullah, meanwhile, there was a fire and Wahidullah sustained injury. The confessional statement is though part of the record A submitted to the trial Court along with complete challan but the same was not exhibited at the trial.
13. Undisputedly, the deceased has sustained only one inlet wound on its back upper portion of the right hip causing exist on the formal part of upper thigh. The crime weapon recovered from the person of appellant was containing 5 live rounds and keeping in view the ocular account furnished by P.W.4 there was no hurdle for the appellant to make successive fire at the deceased then injured but no such attempt was made which fact makes the case of appellant within the ambit of lesser punishment provided for Qatl-e-Amd.
14. In Maqsood Khan's case (2003 PCr.LJ 1165), it was observed that accused who was armed with Kalashnikov, did not hit any vital part of the body of deceased and did not repeat fire notwithstanding the fact that there was none to intervene and in such circumstances the death sentence was converted into life for imprisonment. In Saadullah Jan's case (2002 PCr.LJ 1463), it was held that accused who had fired just one shot and did not resort to further firing which fact was held to be justifiable for grant of life imprisonment and his death sentence was reduced to life imprisonment. In Muhammad Ashraf's case (2005 SCM R 383) where deceased who had remained in the company of accused for the whole day and there was no evidence that what happened between accused and the deceased just before the occurrence and in absence of any explanation from the prosecution, the accused was awarded life imprisonment and awarding death sentence was avoided.
15. In view of the aforesaid facts and circumstances of the case and taking guidance from the aforesaid reported judgments, we are satisfied that awarding life imprisonment to the appellant would meet ends of justice. The appellant was wrongly awarded death sentence by ignoring the aforesaid mitigating circumstance and lacuna in the case of prosecution in awarded death sentence to the appellant.
16. In view of the overall facts and circumstances of the case coupled with the financial position of the appellant, we are satisfied that the trial Court has rightly awarded Rs,1,00,000 compensation payable to the legal heirs of deceased under section 544-A of the Cr.P.C. Or in its default to suffer six monthsS.I., thus the compensation awarded B through impugned judgment is not open to interference.
17. In wake of the above, we maintain the conviction of the appellant but converted his death sentence into life imprisonment, the murder reference is not confirmed and the criminal revision for enhancement of compensation is found without any substance. Except the conversion of penalty from death into imprisonment for life under section 302(b), P.P.C., appeal of the appellant is dismissed. He is allowed benefit of section 382-B, Cr.P.C. The revision filed for enhancement of compensation is dismissed and the murder reference sent by the trial Court is not confirmed.
18. These are the reasons for short order announced on 6-9-2005.