' TANVIR BASHIR ANSARI, J.--Irfan Bashir appellant was tried under section 302/34, P.P.C. By the learned Additional Session Judge, Gujrat along with his ,co-accused Bashir Khan, Faisal Bashir and Mubashar for causing the intentional death of Imran Jamil. The co-accused of the appellant were tried separately and vide judgment dated 20-2-1998 passed by Khawaja Shaukat Iqbal Sikka, Additional Session Judge, Gujrat, the co-accused were convicted under section 302/34 P.P.C. And sentenced to imprisonment for life along with direction to pay compensation. Appellant Irfan Bashir was arrested on 29-1-1999 and his trial took place separately. Vide judgment dated 4-2-2000, Mr. Sohail Nasir, Additional Session Judge, Gujrat convicted the appellant under section 302-B/34, P.P.C. And finding no mitigating circumstances in his favour, sentenced him to death'. The appellant was also directed to pay an amount of Rs.1,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. And to undergo' further 6 month SI in default thereof. Murder Reference No:145 of 2000 has been made for the confirmation of death sentence while Irfan Bashir appellant has preferred the instant appeal against his conviction and sentence.
2. The case of the prosecution is that on 31-10-1995 at 7-00 p.m. Imran Jamil son of the complainant was returning home along with three companions namely Ahmad Khan, Arshad Mehmood and Ghulam Hussain and when they reached near the haveli of Muhammad Shafi Bhatti in Gali Bhandari, they were accosted by Bashir Khan, Faisal Bashir, Mubashar and Irfan Bashir. All the accused were armed with pistols who caused indiscriminate firing upon Imran Jamil which hit the victim on the right side of his abdomen, under left shoulder, on his right knee and right ankle.
Imran Jamil succumbed to his injuries at the spot.
' The motive was that Bashir Khan had lodged a criminal complaint against Haji Jamil Hussain and his brothers namely Javed and Pervaiz for forcible abduction of his daughter Mst. Yasmin and grand son Noomi. It was .Alleged that as the said alleged abductees have not been recovered, the accused suspected Haji Jamil Hussain etc. To have caused their death and that it was for this reason that Imran Jamil was done to death.
(2) A fire-arm wound of entry on the back of the chest above and upper angle of medial -border of scapula on right side 1.5 x 1 cm with blackening and burning margins.
(3) A wound of entry on the left side of thigh 10 cm above knee joint on posterior aspect of left side 20 cm below knee joint 2 x 2 cm in size.
' In his opinion, injuries were ante mortem caused by fire-arm and were sufficient to cause death in the. Ordinary course of nature.
4. The other evidence of the prosecution comprises of the statements of Muhammad Iqbal F.C.
P.W.l, Muhammad Arif P.W.6, Manzoor Hussain P.W.7, Akhtar Naqqash P.W.8, Muhammad 'Safdar A.S.I. P.W.9, Mazhar Iqbal P.W.10, Munir Ahmad A.S.I. P.W.Ll, Muhammad Akram F.C. P.W.12, Ghulam Abbas D.S.P. P.W.13, Inayat Ullah S.I. P.W.14, Mehmood Ahmad Constable P.W.15 and Shahbaz Ahmad A.S.I. P.W.16.
5. After recording the prosecution evidence, the statement of the appellant was recorded under section 342 Cr.P.C. In answer to question No.7 as to why this case against him, the appellant responded as under;-'
"I have been involved in this case due to enmity with the complainant party. My father had got registered' a murder case against the complainant party and the P.Ws. In that case' the. Real brother of the complainant is still absconder. The complainant and the witnesses were arrested in this case and' to rescue themselves from that case the complainant party has falsely involved me and my co-accused in this case. The witnesses are inter se related and inimical towards me. The complainant has also strained relation and the dispute of properties with his other real brothers. I have no reason to commit the murder of Imran. It was an unseen occurrence and the police along with the complainant had managed to introduce a false story. I am quite innocent in this case."
6. After appraising the evidence on the record, the learned trial Court convicted and sentenced the appellant as here-in- before stated.
7. The learned counsel for the appellant assails the impugned judgment on the ground that there were material contradictions between the prosecution case as originally set out in the F.I.R. As well as the case as made out by the ocular evidence. It is contended that even the medical evidence is self-contradictory and is also not corroborative of the ocular account. Reverting to the evidence of recovery, it is stated that admittedly the prosecution evidence relating to the recovery of the pistol P.6 was not believed by the learned trial Court. The medical evidence has been challenged on the ground that there was a serious discrepancy between the post mortem report and the statement of injuries mentioned by P.W.2 Dr. Hamad Rafique. It is submitted that there is no mention of any 4th injury upon the person of the deceased in the statement of the Medical Officer. As regards the absconsion of the appellant, it is contended that no warrants of arrest before the issuance of proclamation was produced on the record by the prosecution and therefore, it cannot be said that the absconsion of the appellant has been proved in accordance with law. He has also submitted that even if absconsion is proved, it shall not be a sufficient circumstance to convict and sentence the appellant to capital punishment. It is finally submitted that in any event, the case of the appellant was identical with the case of Faisal Bashir and Mubashar co-accused in whose favour, another learned Additional Session Judge had found mitigating circumstances in the fact that a criminal case had been lodged against Haji Jamil Hussain and his brothers namely Javaid and Pervaiz for abduction of the daughter of Bashir Khan co-accused who is the real sister of the appellant. It is contended that in his statement under section 342, Cr.P.C. The appellant had specifically stated the enmity between the complainant party and the accused. Learned counsel has referred in details to the answer given to question No. 7 by the appellant. It is further submitted that besides following the principle of consistency, the fact that the blow was not repeated as only one fire-arm injury is attributed to the appellant, it in itself would be a sufficient mitigating circumstance to award punishment lesser than the death sentence. Learned counsel places reliance upon the cases of Shahzad Ahmad Khan v. The State (2004 PCr.LJ 320), Muhammad Jehangir v. The State (2002 YLR 1146), Noor Muhammad v. State 1999 M LD 60, Gulab v. The State (1987 PCr.LJ 1803) and Muhammad Arshad and 2 others v. State (PLJ 1995 SC 684).
8. On the other hand, learned counsel for the State assisted by the learned counsel for the complainant have strongly supported the judgment of the learned trial Court. It is submitted that there are no material contradictions between the ocular account and/or medical evidence which are fully corroborative of each other. It is further submitted that the eyewitnesses had attributed to the appellant the firearm injury which hit the deceased in his abdomen. The seat and the nature of the injury was fully confirmed by the medical evidence. There was no infirmity if the injury No A as mentioned in the post mortem report was not mentioned in the statement of P.W.2. It is further contended that the occurrence took place on 31-10-1995, the appellant was able to be arrested only on 29-1-1999 and that this long absconsion would itself show his guilty conscience. It is also urged that absconsion of the appellant is one of the distinguishing features from the case of his co-accused who had been arrested and tried much earlier.
9. We have heard the arguments of the learned counsel for the parties and have extensively perused the record.
10. The eyewitness account in this case has been rendered by P.W.4 Ghulam Hussain and P.W.5 Arshad Mehmood. Both these witnesses had been mentioned in the F.I.R. According to their statements, the role, of the appellant has been fully established. According to the P.W.4, Irfan Bashir appellant made the first fire which hit on the right side of die abdomen of the deceased. The second fire made by Faisal Bashir hit on the shoulder of the deceased. The third made by Mubashir was received by the deceased on his right leg below the knee. This witness was cross examined in great detail but nothing could be elicited from his statement which could detract from the efficacy of his affirmative statement. Similar is the statement recorded by Arshad Mehmood P.W.5. This eyewitness account when evaluated in the light of the medical evidence rendered by P.W.2 would affirm a fire-arm wound of entry on the right side. Of abdomen of the deceased.
11. We are not overly impressed by the submissions made by the learned counsel for the appellant that as no recovery of the fire-arm weapon was proved on the record at the instance of the appellant, it would be sufficient to dent the case of the prosecution.
12. We also do not find any material contradiction which would have the effect of discrediting the evidence of the prosecution. The contradictions and discrepancies referred to by the learned counsel for the appellant are superficial and more imaginary than real.
13. After considering the oral evidence and the medical evidence coupled with the long absconsion of the appellant, we are not persuaded to take a view any different from the one expressed by the learned trial Court as far as the conviction of the appellant is concerned.
14. There is however, force in the submission of the learned counsel for the appellant that the role of. Irfan Bashir appellant is identical with the role of the co-accused Faisal Bashir. Both these accused are real brothers while Bashir Khan co-accused is their father. The motive as itself mentioned in the F.I.R. Is that coaccused Bashir Khan had lodged a criminal case for the abduction of his daughter Mst. Yasmin (sister of the appellant) and his grand son Noomi against Haji Jamil Hussain and his brothers namely Pervaiz and Javaid. Pervaiz is still a Proclaimed Offender. This very motive has been reiterated by the appellant in his statement under section 342, Cr.P.C. In reply to question No.7 which has been reproduced here-in-before. It was this very motive which prompted the learned trial Court while convicting and sentencing the coaccused to imprisonment for life. We see a lot of congruency between the case of the present appellant and that of the co-accused Faisal Bashir and find no reason why the same circumstances of motive be not regarded as a mitigating circumstance in favour of the present appellant also. We have also noticed that only one firearm injury has been attributed to the appellant and it is not established if injury No. 1 attributed to thfc appellant was by itself sufficient to cause death in the ordinary course of nature.
According to the opinion of the Medical Officer, it were injuries Nos.l and 2 which were found to be sufficient to cause death in the ordinary course.
15. In view of the foregoing, while dismissing the appeal against conviction, we find that there are mitigating circumstances in favour of the appellant to reduce his sentence from death to the award of imprisonment for life. This shall also be consistent with the punishment awarded .To co- accused Faisal Bashir who has since served out his sentence. The benefit of section 382-B, Cr.P.C.
Shall also stand extended to the appellant. The sentence regarding the compensation thereof shall remain intact. The murder reference is answered in the negative.
Sentence reduced