M.A. Zafar, J.--This judgment will dispose of Criminal Appeal No, 1717 of 2002 filed by Aas Muhammad appellant, who was convicted and sentenced by learned Add1 Sessions Judge, Lahore vide impugned judgment dated 12.09.2002 as under:-- Under Section 302(b) PPC.
Death as Tazir and to pay Rs,100,000/- u/S. 544-A Cr.P.0 as compensation to the legal heirs of the deceased and in default thereof to further undergo six months SI. Murder Reference No, 694-2002 for confirmation of death sentence or otherwise of Aas Muhammad appellant shall also be answered through this single judgment.
2. Brief facts of the case as disclosed by Mst. Zarina Bibi complainant in her statement Ex.PD are that she along with her husband resided at Dera Miraj Din where her husband was working as a tenant; that on 21.11.1999 at about 11.30 p.m., Muhammad Hanif and Aas Muhammad accused/relatives of the complainant, came to their house and they awoke Shahab Din, uttered hot words and asked him to send the wife of Aas Muhammad with them, who had come to the house of the complainant after a dispute with her husband; that Muhammad Hanif asked his son Aas Muhammad, who was armed with .12-bore gun, to extinguish Shahab Din, Muhammad Hanif accused excused Shahab Din to be bone of contention; that Aas Muhammad fired through his gun hitting Shahab Din on his back, who fell down on the ground and succumbed to his injuries; that Abdur Rehman and Muhammad Rafique PW reached there and witnessed the occurrence.
3. After receiving the information about the occurrence, Asad Ameen SI (PW.12) reached at the spot, recorded the statement of the complainant Ex.PD, prepared inquest report Ex.PH and injury statement Ex.PJ, prepared rough sketch of plan of the place of occurrence. Ex.PK, then, recorded the statements of the witnesses u/S. 161 Cr.P.C., secured blood stained earth vide recovery memo Ex.
PC. On 8.12.1999 he arrested accused Muhammad Hanif and on 15.12.1999 arrested Aas Muhammad accused. On 18.12.1999 accused Aas Muhammad led to the recovery of .12-bore double barrel gun PA and an empty cartridge P. 5, taken out of barrel were taken into possession vide memo Ex.PB.
After completion of remaining formal investigation, the accused were challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 12 witnesses in all, thereafter, learned D.D.A tendered in evidence report of Chemical Examiner Ex.PM, report of Serologist Ex.PM/1, report of Forensic Science Laboratory Ex.PN and closed the prosecution case, then, the statements of the accused were recorded u/S. 342 Cr.P.0 in which they pleaded innocence. However, after conclusion of trial, Muhammad Hanif accused was acquitted while the present appellant was convicted and sentenced by the learned trial Court as stated above.
5. After having read the entire prosecution evidence, statement of the appellant recorded u/S. 342 Cr.P.0 and other relevant material available on record, learned counsel for the appellant submits that FIR in this case was recorded after due deliberation and consultation, that most important witness of the occurrence, namely, Mst. Zarina was not present at the spot and even her presence at the spot is not shown in the site-plan, that eight children of the deceased/complainant were sleeping in their house but none of them was either cited as prosecution witness or produced by the prosecution, that bare perusal of the FIR shows that eye-witnesses reached at the spot just after the occurrence, that in fact it was an un-witnessed occurrence having taken place in dark hours of night, that there is a clear conflict between ocular account and medical evidence, that it is a case of sudden provocation, that no motive has been alleged and proved in the evidence by the prosecution, that prosecution failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.
6. On the other hand, learned D.P.G submits that it is a case of promptly lodged FIR, that ocular account is corroborated by medical evidence, that it is not a case of sudden provocation but it is a cold blooded murder, that both the eye-witnesses, namely, Abdul Rehman and Muhammad Rafique (PWs 5 & 6) have fully supported the prosecution case, that recovery of gun .12-bore was effected from the appellant and report of F.S.L is positive in nature. Further submits that Court has to see the quality of evidence and not the quantity of evidence and that it is not a case of lesser sentence. She lastly submits that prosecution has been successful in proving its case against the appellant beyond any shadow of doubt and he is not entitled to any leniency.
7. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant case, the occurrence had taken place at 11.30 p.m. on 21.11.1999 while the matter was reported to the police at 12.30 a.m. the same night (within one hour) by Mst. Zarina Bibi by making statement Ex.PD before Asad Amin SI (PW.12) and the formal FIR Ex.PG was recorded by Sabir Ali SI at 1.15 a.m., although the distance between the place of occurrence and police station is 11 Kilometers. So it is a case of promptly lodged FIR. The name of the accused, the role they played and the weapon of offence carried by Aas Muhammad appellant is very much mentioned in the FIR.
If for the sake of arguments, it is admitted that Abdul Rehman PW.5 and Muhammad Rafique PW.6 were sleeping not in the dera where the occurrence had taken place and had come to the place of occurrence after the occurrence had taken place, there is evidence of Mst. Zarina Bibi, complainant examined as PW.4, who was the wife of the deceased, so her presence in the house with her husband was most natural and her testimony cannot be brushed aside without a pinch of salt. Her testimony is confidence inspiring because a wife would not leave the actual killer of her husband and implicate falsely an innocent person. The general principle of law is that even in a murder case conviction can be based on the testimony of a single witness if the Court is satisfied that the witness is reliable, trust worthy and telling the whole truth. In a case titled as Mandoos Khan Vs The State (2003 SCM R 884) their lordships of Hon'ble Supreme Court of Pakistan ruled that .the general principal of law is that even in a murder case conviction can be based on the testimony of a single witness if the Court is satisfied that the witness is reliable, trust worthy and telling the whole truth. It was further observed in the reported judgment that the emphasis is laid down on the quality and not on its quantity. It is believable that Mst. Zarina Bibi PW.4 was actually present at the time and place of occurrence as her presence there was quite natural.
The case set up by the prosecution in the FIR was that Aas Muhammad appellant fired a shot, which landed on the waist of Shahab Din. Dr. Mazhar Mustafa PW.8 conducted postmortem examination at 12.30 a.m. on 22.11.1999 on the dead body of the deceased and found the following two injuries on his person:-
1. There was a 3 cm circular wound with irregular margins present on the back of chest, 3 cm from the mid line on the right side, 13 cm from the base of the neck. It was an entry wound.
2. There was a 1.5 x 5 cm wound on the right side of front of chest. 2.5 cm from the mid line 6 cm below the supra sternal notch 7 cm from the right nipple at 2.0 position."
Here we may reproduce few lines from the cross-examination of Dr. Mazhar Mustafa PW.8 occurring at page 27 of the paper book.
"It is correct that on the diagrams of the deceased Injury No, 1 is a sign of entry wound whereas Injury No. 2 is a sign of exit one The occurrence had taken place at 11.30 p.m. on 21.11.1999 and the postmortem examination was conducted at 12.30 p.m. on 22.11.1999. The duration given by the doctor PW.8 between the death and postmortem was 12 to 24 hours, which duration fits in with the time of occurrence narrated by the prosecution.
We are thus fully satisfied in our mind that the ocular account furnished by the eye-witnesses is fully corroborated by medical evidence.
Aas Muhammad appellant while in police custody on 18.12.1999 got recovered .12-bore gun, which was taken into possession vide memo Ex.PB. After postmortem examination on the dead body of the deceased the doctor took out five pellets, which were secured vide memo. Ex. PA. Recovery of pellets from dead body corroborates the contents of FIR lodged by PW.4 Zarina Bibi, followed by her statement made in Court as well as other witnesses PW.5 Abdul Rehman and PW.6 Muhammad Rafiq that Shahab Din was killed with fire of .12-bore gun. Both the fire arm and sealed parcel of empty were received in the office of Forensic Science Laboratory on 3.1.2000 and the report is that crime empty "Mark-C" was fired front the left barrel of .12-bore gun.
Next is the motive. It was alleged that Mst. Yasmeen sister of the complainant was married with Aas Muhammad appellant and because of some dispute she was turned out by Aas Muhammad and on the day of occurrence Mst. Yasme en was residing in the house of the complainant. Mst. Zarina Bibi while appearing before the learned trial Court has fully supported the motive set up in the complaint. The defence by putting a suggestion itself brought on record that on the day of occurrence Mst. Yasmeen was present in the house of complainant. The suggestion, we may re- produce:-- "It is correct that parents of Yasmeen are r/o Chak No, 52 Joharabad Khushab. Yasmeen came to our house for the first time after quarrelling with her husband".
The defence taken up by the appellant in his statement recorded u/S. 342 Cr.P.C. read as under:-- "As a matter of fact, Shahab Din deceased was in the habit of taking money as loan from so many persons and had been running away from the creditors and during this course he also paid a sum of Rs, one lac to one Nazir and besides him so many other persons were after him for the receipt of their loans from him and therefore, he used to hide himself from many creditors and in addition to this, his son-in-law Muhammad Azam was a famous dacoit and he had taken refuge with deceased Shahab Din after committing dacoity and handed over a sum of Rs,3 lac to Shahab Din deceased his father-in-law and when the co-accused of Muhamad Azam dacoit came to receive their share, Shahab Din usurped the whole looted money due to which Muhammad Azam son-in- law of Shahab Diri deceased was abducted by the other dacoits co-accused of Azam, who was murdered later on and Shahab Din became complainant of that murder case and received a huge amount for pursuing the heavy amount, which was received from the parents of Azam deceased due to which an enmity developed. Shahab Din and parents of Azam deceased who first of all attempted to commit the murder of Shahab Din and then on the second attempt by the parents of Muhammad Azam deceased lost his life. I had no animosity with Zareena or Shahab Din because the real younger sister of Zareena PW.4, namely, Yasmeen is still my legally wedded wife and she never went to the house of Shahab Din deceased because there was no difference between us and that is why Mst. Yasmeen never appeared as a witness against me or against us. The PWs who were related to Shahab Din have deposed against me due to close relationship".
Apart from the fact that the defence introduced by the appellant is absurd one but to prove the same the appellant neither opted to make statement u/S. 340 (2) Cr.P.0 not produced any other witness to support his defence. The appellant produced Inspector Shoaib Ahmad as DW. 1, who deposed that he found Muhammad Hanif co-accused of the appellant as innocent in his investigation. This DW in cross-examination admitted that he had opined that Aas Muhammad accused was guilty in this case.
For what has been discussed above we are of the considered opinion that prosecution had proved its case against the appellant to its hilt and beyond any reasonable shadow of doubt by way of ocular account, which find full corroboration from the medical evidence, recovery of pellets from the dead body and also recovery of firearm and positive report of firearm expert. However, there are some extenuating circumstances in favour of the appellant for lesser sentence and those are firstly that it is a case of single shot inasmuch as though there was no one to stop him from firing the second shot but he did not repeat the same and the second is that according to the case of prosecution itself the occurrence had taken place at the spur of the moment and there was no premeditation at all. Third is before the actual killing a quarrel between the accused and deceased took place. Fourth is that wife of the accused was living in the house of the deceased after leaving appellant's house and the deceased was within his prohibited degree, may be in appellant's mind that deceased is responsible for her desertion.
Resultantly, the appeal filed by the convict/appellant is dismissed, the conviction recorded against him by the learned trial Court vide impugned judgment is maintained, however, the sentence of death is converted into imprisonment for life with the benefit of Section 382(b) Cr.P.C.
Death sentence of the appellant is Not Confirmed and Murder Reference is replied in Negative.