' IJAZ AHMAD CHAUDHRY, J.---We through this consolidated judgment, intend to dispose of Murder Reference No.408 of 2001 sent by the learned trial Court seeking confirmation of death sentence awarded to Ahteshaam Nabi convict-accused, Criminal Revision No.374 of 2001 filed by Asad Mahmood complainant seeking enhancement of compensation amount jointly as all these matters have arisen from the same judgment dated 23-4-2001, delivered by the learned Additional Sessions Judge, Sargodha whereby Ahtashaam Nabi accused-appellant has been convicted under section 302(b), P.P.C. And sentenced to death as Tazir for committing Qatal-e-Amd of Shahid Mahmood deceased. Ahtashaam Nabi accused-appellant was also directed to pay Rs.1,00,000 to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo six months' S.I. However, through the same judgment, Tanveer Shahzad co-accused was acquitted of the charge while extending him the benefit of doubt.
2. Concisely the facts of the prosecution case set up in the F.I.R. (Exh.PF) got lodged by Asad Mahmood complainant (P.W.5) are that on the fateful day Shahid Mahmood deceased brother of the complainant along with Adeel Basat (P.W.6) and Faisal P.W. (not produced) after taking bath in the canal was returning towards their house in Chak No.95-SB by following a Katcha path while the complainant after attending his personal assignment was also proceeding behind them at a some distance towards this house. At about 5-00 p.m. When Shahid Mahmood deceased, Adeel Basat (P.W.6) and Faisal P.W. (not produced) reached in Killa No.1 of square No.16 belonging to Muhammad Javaid Cheema, Ahtashaam Nabi appellant while armed with .12 bore gun and Tanveer Shahzad (acquitted accused) armed with hatchet emerged there. Ahtashaam Nabi appellant and Tanveer Shahzad (acquitted accused) raised a Lalkara to Shahid Mahmood deceased that they had come to teach him a lesson for having levelled false allegation of theft of wheat and for picking un-wanted quarrel. Then Ahtashaam Nabi appellant fired by his .12 bore gun hitting Shahid Mahmood deceased at his right flank who as a result thereof fell down. Adeel Basat (P.W.6) and Faisal P.W. (not produced) when stepped forward they were threatened by the accused persons not to come near them, failing which they would also be dealt with in the same manner so they did not step forward and Shahid Mahmood deceased within their view succumbed to his injury there.
3. The motive behind the occurrence was alleged to be that 10 days back the wheat of Munawar Cheema of Chak No.43 SB was stolen away and both the accused were blamed for that theft. The accused entertained suspicion that Shahid Mahmood deceased had blamed them for theft. On 1- 6-2000, a quarrel had taken place between Shandi Mahmood deceased and Ahtashaam Nabi appellant over that matter in the volley ball ground but it was patched up. Ahtashaam Nabi appellant had hurled threats that he would see Shahid Mahmood very soon. As per his version, the accused persons with prior consultation due to that motive had committed the murder of Shahid Mahmood deceased.
4. The investigation of this case was conducted by Muhammad Ashraf, Inspector (P.W.9), and. Shafi Ullah Khan, S.-I. (P.W.8) and during the investigation, the dead body of the deceased was inspected, injury statement and inquest reports were prepared, statements of the witnesses under sections 161, Cr.P.C. Were recorded, the place of occurrence was inspected, bloodstained earth was secured, rough site-plan of the place of occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy, the last worn clothes of the deceased were received, a formal site-plan of the place of occurrence was got prepared, the appellant and the co-accused were arrested on 19-6-2000; recovery of gun .12 bore (P.3) along with five cartridges (P.4/1-5) from the appellants possession was effected from the Jesti Petti lying in his residential room and after completion of the investigation report under section 173, Cr.P.C. Challan was submitted in the Court.
5. The learned trial Court after supplying copies of the documents required under section 265-C, Cr.P.C. To the appellant and the co-accused framed the charge against them on 12-3-2001, to which they pleaded not, guilty and claimed to be tried.
6. The prosecution in order to prove the guilt of the appellant and the co-accused produced as many as nine witnesses. The ocular account of the incident in question was furnished by Asad Mahmood complainant (P.W.5) and Adeel Basat (P.W.6), who also deposed about the motive while P.W.7 Muhammad Siddique had identified the dead body of Shahid Mahmood deceased at the time of postmortem examination and he also witnessed the recovery of .12 bore gun (P.3) from the Jesti Petti lying in his residential room along with five cartridges (P.4/1-5). The medical evidence was provided by Dr. Iftikhar Ahmad, M.O. (P.W.3) who on 3-6-2000 at 11-05 p.m. Had conducted the post-mortem examination on the dead body of Shahid Mahmood deceased while Malik Muhammad Ashraf, Inspector/S.H.O. (P.W.9) and Shafi Ullah Khan (P.W.9) had stated about the various steps taken by them during the investigation of this case. The other witnesses are of formal nature.
7. In their statements recorded under section 342, Cr.P.C. The appellant and the co-accused had denied the allegations levelled against them by the prosecution and professed their innocence.
However, to a question that "Have you anything else to say?"
' Ahtashaam Nabi appellant replied in the following terms:-- "I am innocent. On the day of occurrence I was present along with my father at the Dera of Abid Bhatti where we had cultivated melons. Shahid Mahmood deceased went to my house in my absence and molested my sister Mst. Raheela with bad intention who resisted and slapped the deceased who grappled with her and torn her clothes. My mother and my sister Mst. Raheela came to me and my father at the above said Dera and narrated the above said story. The deceased chased my sister and when she was returning to our house, the deceased again caught hold of her and molested her when I reached there and lost may self-control and fired at the deceased under grave and sudden provocation. I myself appeared before the police on the very first day anti narrated the whole occurrence but the. I.O. Did not record my true statement and favoured the complainant party. Tanveer Shahzad accused was not present at the place of occurrence during the occurrence."
' However, they had not opted to make statements under section 340(2), Cr.P.C. Nor they produced any evidence in their defence.
8. The learned trial Court, after hearing the arguments of the learned counsel for the parties, had passed the impugned judgment of conviction sentence against the appellant as detailed in para.1 ante. Hence, all these matters before this Court.
9. The learned counsel for the appellant contends that the eye-witnesses were not present at the spot and they had not witnessed the occurrence; that the eyewitnesses had not seen the occurrence and they were the chance witnesses, who were residing in the Abadi; that it was a case of lesser punishment as there was no previous enmity or ill-will between the parties; that the motive was not proved; that the learned trial Court had wrongly relied upon the motive and appellant had not repeated the shot; that according to the version of the appellant which was more nearer to the truth the occurrence had taken place as a result of family honour; that the eyewitnesses had made false statements, who were not present at the spot; that the ocular account was not worthy of reliance being a concocted story; that acquittal of the co-accused of the appellant by the learned trial Court had created a serious dent in the prosecution's case towards the involvement of the appellant as well; that the eyewitnesses produced in this case by the prosecution had been disbelieved by the learned trial Court to the extent of the acquitted co- accused of the appellant and, thus, the same eye-witnesses could not be believed by the learned trial Court against the appellant in the absence of any independent corroboration; that the occurrence had taken place in thickly populated area but in spite of that no independent person was joined in the investigation or produced, in the Court. It has, thus, has been canvassed by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond any reasonable doubt entitling him to acquittal by this Court.
10. On the, contrary, the learned counsel for the State has vehemently opposed the appeal on the ground that heinous offence had been committed by the appellant; that the F.I.R. Was registered with promptitude; that both the eyewitnesses were closer relatives of the deceased but they had no motive to falsely implicate the appellant in the present case; that both the eye-witnesses had sufficiently explained their presence at the spot at the time of occurrence who had no enmity to falsely implicate the appellant by letting off the real culprits; that the eye-witnesses remained consistent on material points regarding the place of occurrence, and the manner in which the occurrence had taken place;' that the medical evidence also supported the prosecution version; that recovery of .12 bore gun had also been effected from the appellant and that the prosecution had succeeded in proving the case against the appellant beyond any shadow do doubt, whose appeal may be dismissed.
11. No one has entered appearance on behalf of the complainant and petitioner in Criminal Revision No.374 of 2001 in spite of that the name of learned counsel is daily figured in the cause list. It had been duly notified on the cause list that the Special Division Bench shall start work at 8-00 a.m. And no adjournment will be granted. As such we have no option except to decide these matters on merits even in the absence of learned counsel for the complainant as the learned counsel appearing on behalf of the State have well argued the case.
12. We have heard the learned counsel for parties and perused the record with due care and caution.
13. The occurrence in the present case had taken place on 3-6-2000 at about 5-00 p.m. In the area of Chak No.95-SB, seven miles away towards West from Police Station Kirana whereas the matter was reported by Asad Mahmood deceased at 5-45 p.m. While making his statement to Muhammad Ashraf Inspector and on the basis thereof format F.I.R. No.100 dated 3-6-2000 (Exh.PF) was registered at the police station under sections 302/34, P.P.C. As such the F.I.R. Was got lodged with promptitude and also without any inordinate delay in which name of the appellant who had fired at the deceased along with the co-accused was duly mentioned. The post-mortem examination had been conducted by Dr. Iftikhar Ahmad, M.O. (P.W.3) the same night at 11-05 p.m.
According to Azmat Ullah, Foot Constable (P.W.4) he had reached the spot at 5-30 p.m. While the dead body was handed over to him at 6-30 p.m. Which he carried to the mortuary at 8-30 p.m. The hospital at 9-30 p.m. And on the same day post-mortem examination on the dead body of the deceased was conducted at 11-30 p.m. All this shows that time was left with the prosecution to fabricate the story. In such circumstances, it is established that the F.I.R. Was got registered with promptitude. The injury statement (Exh.PC) and inquest report (Exh.PD) containing history of the case had been produced before the doctor at the time of post-mortem examination which means that the F.I.R. Was registered as claimed by the prosecution immediately after the incident it can be used as corroborative piece of evidence to the ocular account.
14. To prove the ocular account, the prosecution had produced P.W.5 Asad Mahmood complainant and P.W.6 Adeel Basit. Asad Mehmood complainant (P.W.5) is real brother of the deceased while Adeel Basit (P.W.6) is first cousin of the complainant and the deceased. No doubt, both the eye- witnesses are closely related inter se and with the deceased, but mere close relationship of the eye-witnesses with each other and with the deceased is not a ground to term them as interested witnesses unless it is brought on the record that the eye-witnesses had any motive to falsely implicate the accused-appellant due to some previous ill will, enmity or grudge. In the present case both the eye-witnesses had no precious enmity or ill will accused-'appellant to falsely implicate him in the present case. During the cross-examination the complainant admitted that there was no enmity between the accused and their family members including Shahid Mahmood deceased prior to the incident of theft of wheat of Munawar Cheema. So both the eye-witnesses were independent and natural witnesses, who were residents of the same village and the village Abadi was at a distance of 2 Acres from the place of occurrence. Although the complainant had only got mentioned in the F.I.R. That he had been returning after doing private business, and the nature of work was not disclosed, but during the cross-examination he explained the reason for being present at the place of residence that he was retuning from the Dera of one Attar Elahi Gujjar and accidentally he came across the deceased and Adeel Basit along with given up P.W. Faisal who were coining back to their houses after bath in the canal and the appellant arrived at the spot along with his brother namely Tanvir Shahzad (acquitted accused) who was armed with hatchet and the appellant had fired at the deceased hitting on his right flank.
15. Similarly, Adeel Basit (P.W.6) had also supported the complainant that both of them were also present at the time of incident and the canal were they had taken the bath was at a distance of 2 Kanals from the place of incident. So presence of the eye-witnesses at the spot at the time of occurrence had been sufficiently explained. Even otherwise, it was a daylight occurrence which had taken palace at the path/thoroughfare and the place of incident was surrounded by the land owned by different persons, so the presence of the people at that time near the place of incident and witnessing the incident was possible. The said incident could not go unnoticed and he appellant must have been identified in the daylight. The appellant was the only accused, who while armed with .12 bore gun was alleged to have fired at the deceased. Both the eye-witnesses remained consistent on material points regarding the time, place of occurrence and the manner in which the occurrence had taken place. The presence of the P.Ws. At the spot is further supported by the registration of the F.I.R. With promptitude and conducting of the post-mortem examination without delay.
16.The eye-witnesses were subjected to lengthy cross-examination but we don't find that the defence had succeeded in shattering the confidence of the eyewitnesses regarding their presence and witnessing of the occurrence. So statements of both the eye-witnesses are worthy of reliance and we find that they had no motive to falsely implicate them in the present case. There was no question of misidentity of the appellant as the appellant was also resident of the same vicinity and the occurrence had taken place .In the daylight. In such circumstances we find that the ocular account had been proved beyond any shadow of doubt having been led by the independent and natural witnesses, who had no previous ill will or grudge with the appellant. The witnesses can not be termed as interested witnesses who otherwise had spoken the truth regarding the participation of the appellant in the ocular account furnished by both the eye-witnesses alone can be relied upon without being supported by independent piece of evidence.
17. The ocular account is fully supported by the medical evidence led by P.W.3 Dr, Iftikhar Ahmad, M.O., who has observed that there was an injury with black margins on the right side of lower chest of the deceased below and the pellets were also recovered from the body of the deceased which fact also supports that the injury was caused by the firing of .12 bore gun as claimed by the eyewitnesses.
18.Even otherwise the appellant himself during the cross examination on the witnesses and during the statement got recorded by him under section 342, Cr.P.C. Admitted his participation in the incident but in different manner. The place of occurrence and the time of occurrence was also not disputed by the appellant. The use of .12 bore gun and firing at the deceased was even admitted by him. The only claim of the appellant is that he had committed the offence in different circumstances in order to save the modesty of his sister who firstly was molested by the deceased in the house of the appellant and she was again caught hold by the deceased, when she was returning home after narrating the bad intention of the deceased to the appellant and their father at the Dera. According to the appellant he reached there and having lost self-control fired at the deceased under grave and sudden provocation. The appellant himself did not appear in his defence under section 340(2), Cr.P.C. And he also did not produce any evidence to prove the circumstances, under which he had committed the above said offence for the murder of the deceased. On the other hand, the ocular account is found to be trustworthy. It has been held by the Honorable Supreme Court in 'Sultan Khan v. Sher Khan and others' (PLD 1991 SC 520), that statement of the accused under section 342, Cr.P.C. Should be considered in toto, but if some other evidence is available on the record to supplement the prosecution version, in such a condition, the exculpatory part, if proved to be false may be excluded of consideration. Thus the prosecution version also finds corroboration from the statement of the appellant.
19.The recovery of gun from the appellant was inconsequential as no empty had been recovered from the spot and it cannot be said that the same weapon had been used in the occurrence.
However, mere non-proving of the recovery of weapon of offence or even its non-proving cannot be held sufficient to exonerate the accused from the commission of the crime. The acquittal of co- accused is also not sufficient to create any dent in the prosecution version to the extent of the participation of the appellant in this case as the said co-accused had not been attributed any injury to the deceased and he was only alleged to have raised Lalkara at the time of 1853 2007] the incident. There being tendency in the society to falsely implicate the close relatives of the main accused as well by widening the" net, he had rightly been extended he benefit of doubt, but the appellant cannot be benefitted of the same, who was attributed to sole fatal injury on the person of the deceased.
20. In view of above discussion we have no hesitation in holding that the prosecution had succeeded in proving the case against the appellant. Beyond any shadow of doubt. Resultantly, the conviction recorded by the learned trial Court under section 302(b), P.P.C, against the appellant is maintained.
21.So far as the quantum of sentence awarded to the appellant is concerned, in the F.I.R. Motive was ascribed by the complainant that 10 days before the incident wheat crop of Munawar Cheema had been stolen and allegation was levelled against the appellant and his brother Tanvir Shahzad (acquitted accused), who had suspected that allegation had been levelled against them by Shahid Mahmood deceased. Thereupon a fight had also taken place on 1-6-2000 between Shahid Mahmood deceased and Ahtashaam Nabi appellant but the matter was patched up. Ahtashaam Nabi appellant gave threats that he would teach the deceased a lesson. While appearing as P.W.5 Asad Mahmood complainant stated the same motive in his examination-in-chief with an improvement that "Niah" was demanded from Muhammad Siddique P.W. Their uncle and Shahid Mahmood deceased had asked Siddique P.W. Not to offer Niah on behalf of the accused and some quarrel had also taken place between the deceased and the appellant and he and Adeel Basit (P.W.6) tried to patch up the matter at the trial. The complainant had made improvement regarding the motive that Niah was demanded, from Muhammad Siddique P.W. In the F.I.R. It is not claimed by the complainant that he was I present at the time of incident which had taken' place at the football ground. Moreover, Munawar Cheema was not produced whose wheat crop had been stolen away and Muhammad Siddique appeared as P.W.7, who was uncle of both the eyewitnesses. He during examination-in-chief supported the* motive that Niah wasdemanded from him for innocence of the accused and he was confronted on his point with his previous statement as it was not mentioned in Exh.DB dated 4-6-2000. This dishonest improvement had been mad by the eye-witnesses in order to establish the motive and the most important witness of the motive namely Munawar Cheema was not produced. The complainant was cross- examined on this point and he was confronted with his previous statement in this regard. He also admitted that theft of wheat crop belonging to Munawar Cheema was not mentioned and he also admitted that no case was registered regarding the theft of wheat of Munawar Cheema. He also conceded frankly that he did not get recorded that Niah had been demanded by the accused from Muhammad Siddique P.W. And the deceased had forbidden him. He was also, confronted with his previous statement regarding interference by him and Adeel Basit (P.W. 6) in the incident which had taken place and he was duly confronted with Exh.PF. He also admitted that he did not produce any' one from 24/25 persons who were present at the time of incident in the football ground to the police during the investigation.
22. Similarly, P.W.6 Adeel Basit had also improved his statement regarding the motive and he was also confronted with his previous statement. So the prosecution has not been able to prove the motive against the appellant, which is hereby discarded. Both the parties were not inimical to each other previously and the occurrence had taken place as a result of some other occurrence had taken place. The possibility of firing by the appellant upon the deceased due to the family honour cannot be ruled out. In such circumstances we find that it is a fit case to exercise the discretion by awarding lesser punishment to the appellant.
23. As a result of the above discussion, the death sentence awarded to the appellant is not confirmed and the same is converted to imprisonment for life. However, the compensation of Rs.
1,00,000 payable to the heirs of the deceased or in default of payment thereof to further undergo S.I. For six months will meet the ends of Justice, which is maintained and benefit of xsection 382-B, Cr.P.C. Is also extended to the appellant. With these modifications in the quantum of sentence only, Criminal Appeal No.203-J of 2001 is dismissed.
24. Consequently, the death sentence awarded to Ahtashaam Nabi appellant is not confirmed and Murder Reference No.408 of 2001 is replied in the negative.
25. In view of above, no question arises for enhancement of compensation, which has already been awarded by the learned trial Court adequately .And Criminal Revision No.374 of 2001 seeking the said relief is dismissed.