1. ' BASHIR A. MUJAHID, J.---Abdul Hameed appellant has challenged judgment dated 10-6-2000 passed by the learned Addl. Sessions Judge, Arifwala whereby he was convicted section 302(b), P.P.C. For murder of Asghar Ali and sentenced to death. He was also ordered to pay compensation of Rs, 70,000 under section 544-A, Cr.P.C. To the legal heirs of the deceased, in default thereof to undergo four months S.I.
2. ' The brief facts of the prosecution case are that F.I.R. No,154/97 (Exh.PA) was got registered under section 302/34, P.P.C. By Maqbool Ahmad, P.W.1 on 10-3-1997 at 6-35 a.m about the occurrence which took place at 2-30 a.m in the area of Chak No,10/EB at a distance of 12 KM from the police station, alleging therein that the complainant along with his sons Asghar and Zulfiqar, and Muhammad Ghaffar son of Rehmat Ali in Square No,21 Killa No,2 Chak No,50SB were coming from their dera towards their land. When they reached in square No,67, killa No,21 Chak No,10EB, Abdul Hameed (appellant) armed with rifle .222 bore, Javed (P.O.) armed with kassi residents of Chak No,10-EB were cutting official water course to irrigate their crop of sugarcane in killa No,25, square No,28. Asghar All forbade him as the same causes loss to the complainant party. On which there was exchange of hot words between the accused and Asghar Ali (deceased). Javed asked his father Abdul Hameed to fire at Asghar Ali who fired a shot hitting at the back of chest of Asghar Ali which went through and through. Asghar All fell on the ground and succumbed to the injuries. The accused fled away from the spot.
3. ' The motive alleged for the occurrence was that Abdul Hameed and Javed had cut the official water course from the place where `nakka' was not sanctioned and on forbidding they were annoyed.
4. ' After registration of the case, Muhammad Rafiq inspector, P.W.8 arrived at the place of occurrence and collected blood stained earth from the spot through memo. Ex.P.C. He dispatched the dead body for post-mortem examination after preparing inquest report through memo. Exh.PG and injury statement Exh.PH. He recorded statements of the P.Ws. Under section 161 Cr.P.C. He also took one empty P1 into possession from the spot through memo Exh.PD. Last worn clothes of the deceased produced before him were taken into possession through memo. Exh.PF. On 18-3-1997 he arrested Abdul Hameed who while in police custody led to the recovery of rifle .222 bore P.2 which was taken into possession through memo. Exh.PE. Javed, co-accused was not arrested and declared proclaimed offender. After observing all the legal formalities he submitted the challan against the appellant.
5. ' The trial Court framed the charge which was denied by the accused and he claimed trial.
6. ' During the trial the prosecution examined as many as 9 witnesses to prove the guilt of the accused.
7. ' The medial evidence was furnished by Dr. Saghir Ahmad Chaudhary, P. W.4 who on 10-3-1997 conducted the postmortem examination on the dead body of Asghar Ali and found the following injuries on his body:--
1. A lacerated wound 1 1/2 cm. x 1 cm. With burnt margin going deep on the back of left chest. It was wound of entry.
2. A lacerated wound 2 x 2 cm. x going deep on the front of left chest going deep with burnt margin.
8. It was wound of exit.
9. ' The ocular account was furnished by Maqbool Ahmad, P. W.1 who was complainant of the case. He supported the version of the F.I.R. And narrated motive for the occurrence.
10. ' Zulfiqar Ali son of the complainant and brother of the deceased was examined as P.W.2. He also supported the prosecution story as an eyewitness of the occurrence and proved the motive as narrated by the complainant. Muhammad Zafar, P.W.3 while posted as Foot Constable deposited the sealed parcel of articles in the office of Chemical Examiner and Forensic Science Laboratory after receiving the same from Zahid Hussain, HC P.W.9. Naseer Ahmad, P.W.5 attested the recovery memos, Exh.PC and Ex.PD whereby articles were taken into possession at the place of occurrence by the I.O. He also attested recovery memo. Ex.PE whereby the accused/appellant got recovered rifle P.2. He was sister's husband of the deceased and son-in-law of the complainant. Riasat Hassan, PW6 attested the recovery memo Ex.PF whereby last worn clothes of the deceased were taken into possession by the I.O. Abdul Hafeez, P.W.7 escorted the dead body of the deceased for post-mortem examination from the place of occurrence. Muhammad Hussain Iqbal , Firearm Expert was examined as C.W.1.
11. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.PN and that of Serologist Exh.P0 as well as of Forensic Science Laboratory Exh.PM.
12. ' The statement of Abdul Hameed, accused/appellant was recorded under section 342, Cr.P.C. He denied the allegations and claimed his innocence and false involvement. In reply to question No,9 as to why the case against him and the P.Ws. Deposed against him he stated as under:-- ' "I have been falsely implicated in this case due to enmity. P.Ws. Of the case inter-se related and therefore, they have deposed falsely against me."
13. ' The accused tendered in his defence reports of Chemical Examiner Exh.PN, Serologist Exh.PO, copies of F.I.Rs, No,16/94 Exh.PP and copy of F.I.R. No,75 Exh.PQ, copy of Khasra Girdawari Exh.PR, plan of Chak No,87/EB on tail minor of Kabir distributory Exh.PS.
14. ' The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal. The trial Court has sent up. Murder Reference No,423/2000 under section 374 Cr.P.C. For confirmation of death sentence of the appellant. Both the matters are being decided by this single judgment.
15. ' Learned counsel for the appellant has argued that it was a dark night unwitnessed occurrence and the P.Ws. Are related inter se, interested and inimical towards the appellant and there is no corroboration from any independent source, that positive report of Forensic Science Laboratory is of no use to the prosecution as the rifle after its recovery from the appellant and the empty recovered from the place of occurrence were dispatched together. The appellant has been falsely implicated due to enmity.
16. ' The appeal has been opposed by learned counsel for the complainant and for the State. Learned counsel for the State by placing reliance on PLD 2002 SC 52 and 2003 SCM R, 747 has argued that weakness or absence of motive cannot be considered as mitigating circumstance for awarding lesser penalty, that the capital punishment can be awarded even on the basis of ocular account uncorroborated from any other independent source. Learned counsel for the complainant has argued that the P.Ws. Are consistent in their statements and there is no reason for false implication of the accused by letting off the real culprit.
17. ' We have given our due consideration to the contentions raised at the bar and also thrashed out the record.
18. ' Admittedly, the occurrence took place at about 2.30 a.m in the fields and the matter was reported to the police same day at 6-35 a.m at a distance of 12 KM from the place of occurrence which shows that there is no delay in lodging F.I.R. And the appellant is nominated in the F.I.R. With specific role for having caused fatal injury to the deceased. Both the parties knew each other prior to the occurrence and as per prosecution story there was exchange of hot words and altercation before the appellant fired at the deceased, therefore, there was no question of mistaken identity. Although the complainant is father and Zulfiqar, P.W.2 is real brother of the deceased and son of the complainant but they have no deep rooted enmity for false implication of the appellant by letting off the real culprit. They have also explained their presence at the place of occurrence near their dera. Nobody else could be expected having witnessed the occurrence at odd hours. Both Maqbool Ahmad, P.W.1 and Zulfiqar Ali, P.W.2 are natural and truthful witnesses. The ocular account furnished by both these P.Ws. Has been fully corroborated by the medical evidence and they are consistent in their statement on all material points. No material discrepancies have been pointed out despite the fact that the P.Ws. Were cross-examined at length by the defence, therefore, we find that the prosecution case has been established against the appellant beyond any shadow of doubt and do not find any illegality, misreading or misappreciation of evidence warranting interference in the conviction recorded against the appellant.
19. ' As far as sentence is concerned, it is the case of the prosecution itself that the deceased forbade the accused, from cutting Government water course and there was exchange of hot words and altercation between the parties. The appellant was armed with licensed rifle present in his fields during the night to irrigate the land and he was not expecting that deceased would arrive at the spot to forbid him, B therefore, we find that it was not a pre planned murder. It is not clear that what happened at the spur of the moment. The argument of the learned counsel for the complainant and for the State that the accused were habitual offenders in cutting official water course and were forbade by the deceased even previously has no force as no complaint was made by the complainant party to the Canal Authorities or to the police, therefore, in our considered view it is not a case of capital punishment, so we reduce the sentence from death to imprisonment for life which will meet the ends of Justice. Benefit of section 382-B, Cr.P.C. Shall also be available to the appellant. However, the imposition of compensation of sentence in default thereof is maintained.
20. The appeal is dismissed with the above modification.
21. ' Murder Reference No,423 of 2000 is answered in the negative.
22. Sentence reduced.