' TARIQ SHAMIM, J.--- Zafar Ullah alias Bao appellant along with two other co-accused, namely, Muhammad Bashir and Rehmat Ali, was tried for the murder of Samar Abbas deceased, by the learned Additional Sessions Judge, Gujranwala in case F.I.R. No,220 dated 23-6-1998 for the offence under section 302/34, P.P.C. Registered at Police Station Wahndo, District Gujranwala. The learned trial Judge vide judgment dated 3-4-2000 convicted Zafar Ullah appellant under section 302(b), P.P.C. And sentenced him to suffer death as Tazir. He was also directed to pay Rs,2, 00,000 to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or to undergo R.I. For five years in default thereof. Muhammad Bashir and Rehmat Ali co-accused were, however, acquitted.
2. Feeling aggrieved of the above-mentioned conviction and sentence, Zafar Ullah convict has filed Criminal Appeal No,590 of 2000 while the State has approached this Court through Murder Reference No,216 of 2000 seeking confirmation of the sentence of death awarded to the appellant.
Both these matters are being disposed of together through this single judgment.
3. The prosecution story as unfolded through the F.I.R. Is that Allah Ditta complainant along with Muhammad Bashir and Peeran Ditta had common cattle shed and tube-well. He along with Peeran Ditta wanted to construct their separate Dera but Muhammad Bashir and others refused to give their share and also advanced threats of dire consequences to them. However, the matter was got resolved through Punchayat but Muhammad Bashir and others bore grudge in their hearts. It is alleged that on 23-6-1998 at 11-00 a.m. Samar Abbas and Sajid Akbar sons of the complainant along with Akhtar Ali son of Peeran Ditta were breaking the foundation of the tube-well falling in their share. In the meanwhile Samar Abbas felt thirsty and went to drink water from a nearby hand pump where Muhammad Bashir and Rehmat Ali (acquitted co-accused) sons of Sardar were present and raised Lalkara inciting their paternal nephew Zafarullah who was carrying a .12 bore gun and a pistol to teach them a lesson for getting their share in the joint property. On this, Zafar Ullah alias Bao appellant fired a pistol shot upon Samar Abbas deceased, which hit him above the heart and went through and through from the chest who fell down and became unconscious. The accused fled from the spot while firing in the air. Sajjad Akbar and Akhtar Ali took the injured to the Civil Hospital, Gujranwala.
4. Dr. Rao Asif Ali Khan Medical Officer was posted at D.H.Q. Hospital, Gujranwala when he medically examined Samar Abbas on 23-6-1998 at 12-45 p.m. Who was brought by Allah Ditta complainant in injured condition. The said doctor found the following injury on his person.
' A fire-arm lacerated wound of entry 1 x 0.75 c.m. x going deep on the front of left chest 9 c.m. From midline and 3 c.m. Above left nipple with corresponding wound of exit measuring 1 x 0.75 c.m. On the back of left chest middle part 3 c.m. From midline.
' According to the said doctor, duration of the injury was fresh and it was caused by fire-arm weapon.
5. On the death of Samar Abbas on 7-7-1998, Dr. Khushnood Elahi Awan (P.W.7) conducted post- mortem examination on his death body and found the following injuries on his person:--
(1) A healed wound about 2 x 2 c.m. Present on the left side of the chest about 4 c.m. Above the left nipple.
(2) A healed scar about 2 x 2 c.m. Present on the back of left chest about 4 c.m. To the midline.
(3) A drainage mark about 2-1/2 x 1 c.m. With two silk stitches present in the exillary line.
' In the opinion of the doctor, the deceased had been hit by a bullet on 23-6-1998. He remained admitted in Mayo Hospital, Lahore from where he was discharged after improvement. At home because of increase of intra thoracic pressure his scar of wound ruptured and he started bloody vomiting. Because of excessive bleeding from ruptured left lung he inhaled blood and because of choking of airways he developed cardiopulmonary arrest which resulted in his death. According to the said doctor, cause of death was injury to the left lung caused by the fire-arm which was sufficient to cause death in the ordinary course of nature.
6. Initially F.I.R. No,220 of 1998 (Exh.P.A./1) was registered under sections 324/34, P.P.C. At Police Station Wandho, District Gujranwala on the complaint (Exh.P.A.) of Allah Ditta complainant on 23-6- 1998 at 3-30 p.m. However, on the death of injured Samar Abbas the offence was altered into section 302/34, P.P.C. On 7-7-1998.
7. Amjad Ali, A.S.-I. (P.W.13) was posted at. Police Station Wahndo. On 23-6-1998 he was present at Bus Stand Wahndo on patrol duty when Abdul Rashid Constable produced F.I.R. No,220 of 1998 (Exh.P.A./1) before him which had been recorded by Tahir Shamas Moharrer/Constable at the police station. On receiving information regarding the instant occurrence, he reached at the spot and recorded the statements of Sajjad Akbar and Akhtar Ali P. Ws. Under section 161, Cr.P.C. He also inspected the spot and collected blood-stained earth and a crime-empty (P.1) vide recovery memo. (Exh.P.B.). He also conducted raid to apprehend the accused but they were not traceable.
On 2-7-1998 he recorded the statement (Exh. P. G.) of Samar Abbas injured under section 161, Cr.P.C.
On 7-7-1998, on receiving the information that Samar Abbas had died, he reached Tehsil Headquarters. Hospital, Kamoke, prepared injury statement (Exh.P.H.) and inquest report (Exh.P.J.) of the dead body. After post-mortem examination of the deceased, the doctor gave him last-worn clothes i,e, Bunian (P.4) and Shalwar (P.5) of the deceased which he took into possession vide recovery memo. (Exh.P.F.). He, prepared rough site plan of the place of occurrence (Exh.P.L.) and also got prepared the site plans (Exhs.P.E. And P. E. /1).
8. On 30-8-1998 the investigation was taken over by Muhammad Arshad S.-I. Zafar Ullah appellant while on physical remand got recovered gun (P.2) which he took into possession vide memo.
(Exh.P.C.). On 6-9-1998 Zafar Ullah appellant made a further disclosure and got recovered .30 bore pistol which was taken into possession by him vide recovery memo. (Exh.P.D.). On 12-9-1998 investigation was taken over by Muhammad Azam, S.-I./S.H.O. Who after hearing both the parties came to, the conclusion that Muhammad Bashir and Rehmat Ali accused were not present at the spot and consequently declared them innocent while Zafar Ullah appellant was found guilty. He accordingly prepared the report under section 173, Cr.P.C. And sent the accused to face trial.
9. All the three accused were charged under section 302/34, P.P.C. To which they pleaded not guilty and claimed to be tried.
10. In order to prove its case, the prosecution produced Allah Ditta complainant (P.W.1) who not only deposed about the motive but also identified the dead body in the hospital at the time of his post- mortem examination, Akhtar Ali (P.W.2) and Sajjad Akbar (P.W.3) to prove the ocular account of the occurrence; Ghulam Rasool (P.W.4), Sana Ullah (P.W.5) and Muhammad Ashraf Ali (P.W.6) recovery witnesses; Dr. Khushnood Elahi Awan (P.W.7) who had conducted post-mortem examination on the dead body of the deceased; Naimat Ali constable (P.W.8), Sakhawat Ali constable (P.W.9), Abdul Ghaffar Patwari (P.W.10), Dr. Rao Asif Ali Khan (P.W.11) who had medically examined Sammar Abbas when he was brought in injured condition, Muhammad Hanif constable (P.W.12), Amjad Ali, A.S.-I.
(P.W.13) and Muhammad Arshad S.-I. (P.W.14) who had investigated the case and closed its case.
Muhammad Azam, S.-I./S.H.O. Had also conducted partial investigation and submitted the challan.
He was examined by the learned trial Court as C.W.1.
11. After closure of the prosecution case, the statements of the appellant and his co-accused were recorded under section 342, Cr.P.C. The appellant denied recovery of any weapon from him and attributed his false involvement to enmity and claimed innocence. He, however, did not opt to enter the witness-box in his defence under section 340(2), Cr .P.0.
12. At the conclusion of the trial, the learned trial Judge acquitted Muhammad Bashir and Rehmat Ali co-accused and convicted and punished the appellant as stated above.
13. Learned counsel for the appellant has contended that the dying declaration (Exh.P.G.) was recorded on 2-7-1998 whereas the occurrence took place on 23-6-1998 and in view of the time gap the same cannot be termed as dying declaration particularly as the said statement was not made under the threat of imminent death; that in fact the deceased had fully recovered from the injuries received during the course of occurrence and had been discharged from the hospital; that the deceased while making statement under section 161, Cr.P.C. Which was subsequently, treated as dying declaration (Exh.P.G.) remained under the influence of his relatives hence the same has no evidentiary value; that the trial Court has also not treated the said statement as dying declaration; that Abdul Ghaffar Patwari (P.W.10) who had prepared the site plan of the place of occurrence has not shown the point from where the accused Zafar Ullah appellant fired at the deceased; that the bloodstained earth was also not recovered from the place of occurrence; that the crime-empty (P.1) recovered from the place of occurrence was introduced at later stage and the same did not match with the pistol recovered from the appellant; that the motive regarding dismantling of the foundation of the tube-well has also not been proved as P.W.10 in his cross-examination has admitted that he did not show foundation of the tube-well in the site plan which was being dismantled by the deceased and Amjad Ali A.S.-I. (P.W.13) did not mention anything about the same which was stated earlier was the motive for the murder of Samar Abbas deceased; that the deceased was killed by a stray pellet fired from some unknown source; that the story regarding the appellant carrying pistol and rifle at the same time did not appeal to common sense as a person may come armed with one fire-arm but not with two fire-arms; that the post-mortem report was in conflict with the ocular account inasmuch as dimension of both the injuries, the entry as well as exit wounds are shown to be same which is very unlikely as the exit wound has a bigger dimension and lastly that since the deceased had recovered from the injury as such the subsequent death of the deceased could not be made basis for conviction of the appellant and in any case it was a case of single shot and the appellant did not repeat the same which shows that the appellant did not want to cause death of the deceased coupled with the fact that the motive was weak and had not been proved, the appellant deserved lenient view and capital punishment was not warranted in the circumstances of the case.
14. On the other hand the learned counsel for the State assisted by the learned counsel for the complainant contended that it was a broad-daylight occurrence and the parties were known to each other, there was no question of mistaken identity; that the statement (Exh.P.G.) was in fact dying declaration as at the time of recording of the said statement Samar Abbas was admitted in the hospital in precarious condition and under threat of imminent death; that in the dying declaration the deceased had specifically mentioned that the appellant had fired at him which had caused the injury ultimately resulting in his death; that there was nothing on the record to show that the eye-witnesses were not present at the spot at the time of occurrence; that the site plan is not a substantive piece of evidence and the witnesses cannot be contradicted on the basis thereof; that the medical evidence has corroborated the ocular testimony of the P. Ws. And further corroboration of the eye-witness account can be gathered from the recovery of the weapon, the crime-empty recovered from the spot, the motive and in particular the dying declaration (Exh.P.G.) made by the deceased. It was further argued that although the witnesses were related to the deceased but this could hardly be considered a valid ground for disbelieving the witnesses as it was a case of promptly lodged F.I.R. In which name of the appellant had been mentioned with specific role ascribed to him, therefore, he stood rightly sentenced by the learned trial Court.
15. We have heard the arguments of the learned counsel for the parties and have also gone through the record with their assistance.
16. The occurrence took place on 23-6-1998 at 11-00 a.m. And the F.I.R. Was lodged at 3-30 p.m.
Same day. Thus, the F.I.R. Was lodged promptly without unnecessary loss of time, therefore, the chance of deliberation and consultation with others to wrongly involve the appellant is excluded.
The detail of the occurrence has been elaborately explained in the F.I.R. It is therefore, a credible document which gets support from the statement of Allah Ditta complainant (P. W. I). The motive for the occurrence as given in the F.I.R. (Exh.P.A./1) stands proved beyond any doubt as Allah Ditta (P.W.1), Akhtar Ali (P.W.2) and Sajjad Akber (P.W.3) witnesses of the ocular account are unanimous in their stand. Their statements are confidence-inspiring and the same did not suffer from any infirmity or material contradictions. The appellant in his statement under section 342, Cr.P.C. Stated that he had been falsely involved in this case by the complainant party due to enmity and on account of the relationship of the P.Ws. With the deceased. But he has not been able to establish any enmity with the P.Ws. During cross-examination or by producing any evidence in his defence before the trial Court. Despite lengthy cross-examination the veracity of the witnesses could not be shaken by the defence. Slight variation in the statements of the witnesses cannot be termed to reduce the intrinsic value of the statements of the said witnesses. Since the said witnesses on all important points are unanimous as such credibility has to be attached to the said statements being true and worth. Relying. Needless to mention here that nothing could be solicited from the witnesses by the learned defence counsel as to any enmity between the appellant and the complainant side. Hence there was no question of mala fide to falsely involve the appellant. The medical evidence is in conformity with the ocular account furnished by the P.Ws. Inasmuch as P.W.11 Dr. Rao Asif Ali Khan who had first medically examined the injured Samar Abbas had found fire-arm wound on the chest of Samar Abbas deceased. On the death of Samar Abbas, Dr. Khushnood Elahi Awan, (P.W.7) performed post-mortem examination (Exh.P.F.). He opined that the cause of death was injury on the left lung caused by a fire-arm which was sufficient to cause death in the ordinary course of nature. Thus, the eye-witness account that only one fire was shot and the locale of the injury is fully supported by the medical evidence. Further the cause of death of the deceased has also been conclusively determined by Dr. Khushnood (P.W.7) as injury caused by fire-arm to the left lung attributed to, the appellant by the eye-witnesses. Further corroboration of the eye-witness account comes from the recovery of blood-stained earth from the place of occurrence, the empty of pistol (P.1) which was taken into possession vide memo. (Exh.P.E.), the recovery of last-worn clothes of the deceased and the recovery of pistol from the appellant with five live bullets vide recovery memo. Exh.P.D. The said recovery stands proved from the testimony of P.Ws.2 and 3. Report of the Chemical Examiner (Exh.P.M.), report of the Forensic Science Laboratory (Exh.P.N.) and report of the Serologist (Exh.P.Q.) further corroborate the medical evidence. Although the statement of the deceased recorded 'under section 161, Cr.P.C. Cannot strict, senso be termed as a dying declaration, nevertheless the very fact that the same was made by the deceased in an injured condition in the hospital in which he had specifically named the appellant with specific role of firing at him with .30 bore pistol carries weight. The site plan is not a substantive piece of evidence and the witnesses cannot be cross-examined on the basis thereof. If any contradiction is found in the site plan it will not discard the witnesses or cause significant dent in the prosecution case so it cannot be held that the prosecution could not prove its case beyond any reasonable doubt.
17. This leads us to the quantum of sentence awarded to the appellant.
18. It is admitted that the appellant was armed with fire-arm at the place of occurrence but he did not repeat the fire which aspect has to be taken into account. Another aspect which needs to be considered at this juncture is that the deceased had himself per chance gone to the place of occurrence i,e, the hand pump in order to quench his thirst where the appellant was already sitting.
It has not come on record either through the site plan or through testimony of the P.Ws. As to the distance of the hand pump from the place where the deceased and the P.Ws. Were breaking the foundation of the tube-well. Therefore, what had actually transpired between the appellant and the deceased immediately before the actual occurrence is not known. While considering the quantum of sentence, reference can be made to the dictum laid down in Naubahar v. The State 1999 SCMI 637; Qamar Ehsan v. The State 2004 PCr.LJ 47 and Shahzad Ahmad Khan v. The State 2004 PCr.LJ 320. Further the fact that the deceased died 14 days after the occurrence on account of medical complications creates some doubt in our minds regarding the severity of the sentence.
Consequently, we feel that in the circumstances of the case the sentence of imprisonment for life would meet the ends of justice.
19. In view of what has been noticed and discussed above, Criminal Appeal No,590 of 2000 is dismissed. The conviction of the .Appellant under section 302(b), P.P.C. Is maintained. However, the sentence of death is commuted to imprisonment for life. He is also directed to pay Rs,2,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or to undergo six months' S.I. Benefit of the provision of section 382-B, Cr.P.C. Is also granted to the appellant. Murder Reference No,216 of 2000 is answered in the, negative.