1. ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,9/J of 2002 filed by Muhammad Hussain, who was convicted under section 302(b), P.P.C. And sentenced to death with further direction to pay Rs,50,000 as compensation, In default sixmonths S.-I., vide judgment, dated 22-3-2001 rendered by learned Additional Sessions Judge, Jaranwala.
2. ' Murder Reference No,195 of 2001 for confirmation or otherwise of death sentence of convict appellant shall also be replied through this single judgment.
2. Occurrence in this case had taken place at 12-30 (mid-night) on 12-5-1999 within the revenue estate of Chak No,624/GB, which is at a distance of 8 miles from Police Station Lundianwala, District Faisalabad, while the matter was reported to the Police 2.00 on the same night through written complaint Exh.PD by Muhammad Ishfaq at Adda Buchaina and formal F.I.R. Exh.PD/1 was recorded by Muhammad Ilyas, Head Constable.
3. Briefly stated the facts of the case are that Muhammad Ishfaq, complainant was married with Mst. Tasleem D/o Abdul Sattar ten years ago while his brother-in-law Muhammad Riaz was also married with Mst. Shafqat Parveen. About 10/12 days prior to the occurrence, father-in-law of Muhammad Riaz had died, the complainant along with others had come to the Chak for saying Fateha. In the night at about 12 O'clock, the complainant along with his brother-in-law Muhammad Riaz, Ijaz son of Abdul Majeed and Shaukat Ali, brother coming to the village from cattle-shed of Muhammad Riaz; Muhammad Riaz was ahead of them, when they reached at the corner of the village near a school on a pucca road and also near the shops, tube light was on and within their view, Muhammad Akmal alias Pupu armed with 12 bore gun, Muhammad Hussain alias Hussaini armed with carbine emerged there. Muhammad Akmal raised Lalkara that Muhammad Riaz had forbade him from coming to his house and for that a lesson would be taught. Upon this, Muhammad Akmal al fired a shot at Muhammad Riaz but the same missed. Then Akmal commanded Muhammad Hussain to fire at Riaz upon which the accused fired at Riaz with carbine hitting on his chest. The victim fell down while the accused ran away from the spot by raising lalkaras.
3. ' The motive alleged was that Muhammad Akmal was carrying on illicit relations with Mst. Shafqat Perveen wife of Muhammad Riaz, the accused used to see Shafqat at her residence which was objected to by Muhammad Riaz, deceased and due to this grudge, Muhammad Riaz was murdered.
4. ' Zafar Iqbal, S.-I. (P.W.12) took over the investigation. After registration of the formal F.I.R., he proceeded to the place of occurrence, took over the dead-body of the deceased, prepared injury statement Exh.PB, inquest report Exh.PC, took into possession the blood-stained earth vide memo.
5. Exh.PF, rough site-plan is Exh.PJ andon 21-5-1999 arrested Muhammad Akmal and Muhammad Hussain accused, Mst. Shafqat Pervecn was found innocent during the course of investigation, on 24-5-1999, Muhammad Hussain while in custody got recovered carbine P.4 which was taken into possession vide memo. Exh.PH. After completion of all formal investigation, all the three accused were sent to face the trial.
6. ' At the trial, prosecution in order to prove its case produced 13 witnesses in all. Then the learned DDA tendered in evidence report of Chemical Examiner (Exh.PK) report of the Serologist (Exh.PL) and closed the case of the prosecution. The accused in their statements under section 342, Cr.P.C.
7. Pleaded false implication. After conclusion of the trial, Muhammad Akmal was acquitted while Muhammad Hussain appellant was convicted and sentenced as stated above.
8. ' Learned counsel for the appellant after having read the prosecution evidence submits that the occurrence had taken place in dead dark hours of the night, there was no source of electricity, so identification of the assailants was not possible, both the eye-witnesses were not present at the spot; they are cooked up witnesses; there is conflict between ocular account and the medical evidence; no time of death has been given in column No,3 of the inquest report and also in the relevant column of the post-mortem report; no crime empty was recovered from the spot, carbine was planted, the same was not sent to the office of the Fire-arms Expert and that P.Ws. 10 and 11 are witnesses of extra-judicial confession and merely on their statements, conviction on a capital charge cannot be maintained. Concluding his submissions, learned counsel submits that prosecution has failed to prove its case and he is entitled to acquittal.
9. ' Both the learned counsel representing the State in appeal and Murder Reference submit that ocular account is fully corroborated by medical evidence; both the eye-witnesses have supported the case of prosecution; the witnesses had no enmity whatsoever to implicate the appellant falsely and if the complainant party had to involve any innocent person, then it was very easy for them to implicate Akmal who had motive against the deceased. They both support the impugned judgment of learned Trial Court.
10. ' We have heard learned counsel for the parties at length and have gone through the evidence on record with their able assistance. In the instant case, the occurrence had taken place at 12-30 mid- night on 12-5-1999 while the matter was reported to the Police at 2 a.m. The same night and formal F.I.R. Was recorded at 2.50 a.m. Though distance between the place of occurrence and the Police Station was 8 miles so it A is a case of promptly lodged F.I.R. With names of the accused and the roles played by them.
11. ' Muhammad Riaz is deceased while complainant is Muhammad Ishfaq, brother-in-law (Salla) of the deceased. Apart from the present appellant, there were two other accused. No overt act was attributed to Mst. Shafqat Tanveer while the shot fired by Akmal missed and he took the plea of alibi, which was accepted by the Trial Court. They both were acquitted by the Trial Court. Appeal filed against their acquittal by the complainant was dismissed by this Court. Muhammad Ishfaq and Muhammad Ijaz are two eye-witnesses. They both have supported the prosecution. They had no or enmity against the appellant. There is not even a single suggestion on record that they had deposed against the appellant falsely. So far as source of light is concerned, it was also stated in the F.I.R. That a tube light was on at the shops. The same also finds mention at point No,3 in the site-plan. (Exh.PE) prepared by Draftsman. 'Even otherwise both the parties were known to each other so there was no question of mistaken identity.
12. ' The ocular account furnished by two eye-witnesses P.Ws. 8 and 9 is fully corroborated by medical evidence furnished by Dr. Anwar Saeed Saqib P.W.1.
13. ' Only one shot was fired with carbine by the convict appellant. The crime empty could not have ejected unless the second shot was fired. So non-sending of the firearms to the Fire-arms Expert loses its significance.
14. ' The ocular account is fully corroborated by medical evidence, the eye-witnesses have fully supported the case of prosecution, they hadnoor enmity against the appellant, so the irresistible conclusion is that we are satisfied in our mind that the prosecution has proved its case against the appellant beyond any shadow of doubt.
15. ' However, there are some mitigating circumstances such as; (i) the motive, if any, was ascribed to Akmal accused who has been acquitted by the Trial Court, no motive was attributed to the appellant, and (ii) it is a case of single shot. In the case of Muhammad Arshad and 2 others v. State (PLD 1996 SC 122). It was held by their lordships the normal penalty for offence of murder 'is death but in appropriate cases Where some extenuating circumstances are, available, Courts have discretion to award lesser punishment of imprisonment for life. The extenuating circumstances were held to be there being no previous enmity or deep-rooted hostility and the shot having not been repeated. The citation supra on all fours applies to the case in hand, so while following the same, we though maintain order of conviction of the appellant under section 302(b), P.P.C. But convert his death sentence into imprisonment for life with benefit of section 382-B, Cr.P.C. However, the amount of compensation is enhanced from rupees 50,000 to rupees one lac in default six months' S.-I.
16. ' The death sentence of appellant Muhammad Hussain is NOT B confirmed and Murder Reference is replied in the Negative.
17. Sentence reduced.