' MUHAMMAD FARRUKH MAHMUD, J.--- This judgment will dispose of Criminal Appeal No,1885 of 2001 filed by Ala-ud-Din, appellant. He along with Nasir-ud-Din and Tahir Javed, co-accused, faced trial in case F.I.R. No,257, dated 18-5-2000 registered at Polite Station Saddar Mandi Bahauddin, for offences under section 302/34, P.P.C. Before learned Additional Sessions Judge, Mandi Bahauddin, who after concluding the trial, vide judgment, dated 13-11-2001 convicted the appellant under section 302(a), P.P.C. And holding him liable-to Qisas sentenced him to death. He was also directed to pay compensation of Rs,1,00,000 to the legal heirs of the deceased: In default thereof, the appellant was to undergo simple imprisonment for six months. However, the above said co- accused were acquitted of the charge.
2. Murder Reference No,779 of 2001 for confirmation of the death sentence of appellant has been sent by the learned Additional Sessions Judge, which shall also be disposed of through this single judgment.
3. The occurrence took place on 18-5-2000 at 7-30 in the sitting room (Baithak) of Naseer-ud-Din in village Pindi Purani situated at a distance of two kilometers from the police station. It was reported by Gulzar Hussain Shah, complainant, on the same day at 9-15 p.m. The complainant is resident of the same village - Pindi Purani. According to him Naseer-ud-Din was an agent and was engaged in the business of sending people abroad. The son of complainant Saqlain Abbas had also given to said Naseer-ud-Din a sum of Rs,1,65,000 for sending his friend namely Raja Rajab Ali to Denmark. Naseer-ud-Din did not fulfil his promise and despite demands on many occasions also did not return the money. On the day of occurrence the complainant along with his son Saqlain Abbas went to the house of Naseer-ud-Din. They were sitting in the Baithak when along with Naseer-ud-Din his sons namely Ala-ud-Din and Amjad and his nephew Tahir also came there.
During conversation a quarrel took place between the parties and there was exchange of hot words. On which Naseer-ud-Din commanded his son to catch hold of Saqlain Abbas and kill him because he each day had been coming for demanding money. Tahir and Amjad gave fist blows to Saqlain Abbas, which hit him on his face and breast. Naseer-ud-Din had caught hold of complainant and desisted him from rescuing his son. Meanwhile, Ala-udDin went inside and came back with .30 bore pistol. He fired at Saqlain Abbas which hit him on his forehead. On the hue and cry of complainant Muhammad Khan and Mazhar Ali, P. Ws. Came at the spot and saw the occurrence. Saqlain Abbas was taken to the hospital in injured condition where he expired.
Muhammad Sarwar, S.-I. (P.W.10) after receiving information about the occurrence on telephone went to Civil Hospital, Mandi Bahauddin. Where the deceased being serious had earlier been referred to somewhere else. However, he recorded the complaint Exh.P.A. On the statement of complainant. He inspected the spot, collected blood-stained earth and took into possession empty P.6. He also prepared rough site plan of the place of occurrence. On the same day he made an application Exh.P.F. To doctor for recording statement of injured, on which the doctor wrote a report Exh.P.F./1. On the next day i.e. 19-5-2000 the Sub-Inspector was informed about the death of deceased. He again went to the Hospital, prepared injury statement Exh.P.H. And Inquest Report Exh.P.J. And got conducted the postmortem of the deceased. After completion of the investigation the appellant along with above named two co-accused were challaned. However, Amjad the other son of Naseer-ud-Din was declared innocent by the police.
' 3-A. The learned trial Court charge-sheeted the above named three accused on 20-12-2000, who did not plead guilty and claimed trial. The prosecution produced as many as 10 witnesses in order to prove the charge.
4. The ocular account of the occurrence was furnished by Gulzar Hussain Shah, complainant, (P.
W.1) and Muhammad Khan son of Saee Khan, P.W.B. Dr. Shafique Ahmad, P.W.3, produced the medical evidence. Muhammad Sarwar, S.-I. (P.W.10) stated about the investigation of case. After recording prosecution evidence the statements of accused under section 342, Cr.P.C. Were recorded. The appellant in his statement under section 342, Cr.P.C. In reply to question No,15 put up his defence plea as under:- "The prosecution has distorted the real facts of this case after being in league with the Investigating Officer of this case. The fact of the matter is that the deceased of this case was of a criminal propensity and was of a chequerred and shady character. He used to take liquor and extorted "Jagga" along with his other associates and often indulged in nefarious activities. The fact of the matter is that on 18-5-2000 at about 7-30 p.m. I was present in my house. All of a sudden Ali Tarkhan armed with .30 bore pistol, Saqlain Abbas deceased also armed with .30 bore pistol, Mushtaq armed with pump action, Asif armed with .8 mm rifle, Murtaza armed with .222 bore trespassed into my house and started molesting and disgracing the women-folk who were my relatives. I asked the aforesaid persons to behave properly and not to indulge in these nefarious activities and at my asking started grappling with me. They were all then heavily drunk and were under the influence of liquor and they continuously demanded "Jagga" tax from me. Hearing this uproar and alarm raised by the women-folk of my house Khalid and Javed were attracted to the spot in my house. Saqlain Abbas, deceased, had caught hold me in his Japha'from my back and at the same time Ali Tarkhan fired at me which instead of hitting me hit the deceased Saqlain Abbas on his forehead and consequently, Saqlain. Abbas fell down. Having seen Saqlain Abbas fallen on the ground his associates mentioned above fled away from my house. At that time my co- accused Nasir-ud-Din had gone to mosque to say his prayer who learnt afterwards about the occurrence. My remaining co-accused were not also present at the eventful! Time: The police after learning about the occurrence reached the spot muoh after the occurrence and carried Saqlain Abbas in an injured condition to the hospital and afterwards the Investigating Officer in this case who connived with the complainant party where men of affluent circumstances joined hands with them and afterwards introduced Gulzar Hussain Shah as complainant in this case and Muhammad Khan and Mazhar as false witnesses and manipulated a false story for the complainant party. The complainant and the alleged eye-witnesses of this case were never present at the eventfull time. Naseer-ud-Din my co-accused as well as myself constantly asked the deceased and his associates mentioned above to give up their nefarious activities and to behave properly and in this regard Nasir-ud-Din had also complained against the behaviour of the deceased and his associates to the police who escaped themselves after giving heavy illegal gratification to the police and so they nourished a strong grudge against me and my family. After the registration of this case I approached the police and explained the real facts to them but the police was adamant as they were hands and gloves with the complainant party, so I moved the writ petition in the Honourable High Court that true statements of mine and my co-accused Nasir- ud-Din are not being recorded and in that writ petition I impleaded S.S.P., M.B. Din, D.S.P., M.B. Din, S.H.O. As well as the aforesaid associates of the deceased and the Honourable High Court directed to record the true pleas and version of the accused party and so after recording my statement and the statement of Nasir-ud-Din and others I being aggrieved with the behaviour and conduct of the police instituted a complaint which is pending trial in this Court. I and my co-accused are innocent.
Amjad my brother co-accused was abroad at the full time and even he has been falsely involved in this case. All the known adult members of my family and the bread winners of my family have been haphazardly involved in this case after throwing the net wide apart so that none from my family live to pursue the case. We all are innocent."
' The accused also produced, Javed D.W.1 and Khalid Mehmood D.W.2 in is defence.
5. The learned trial Court after evaluating the evidence on record came to the conclusion that the prosecution has proved its case against the appellant only. Accordingly, vide the impugned judgment he was convicted and sentenced as stated in the opening paragraph of this judgment.
The learned trial Court, however, acquitted the other two accused of the charge as the prosecution had failed to prove its case against them.
6. At the very outset the learned counsel for appellant has submitted that instead of pressing for acquittal he would pray for reduction in the sentence in the circumstances of the case. The learned counsel in that regard has submitted that it was the deceased who himself gone to the Baithak of the accused; that admittedly during the conversation situation worsened and abuses were exchanged; that Naseer-ud-Din, who was father of the appellant was being insulted and for that reason the appellant caused a single fire.
7. Conversely, the learned counsel for the complainant submits that the purpose of the visit of the deceased-and the complainant in the house of the accused was not for an evil purpose and it was just for return of money. The learned counsel while relying upon Syed Hamid Mukhtar Shah v.
Muhammad Azam and 2 others 2005 SCM R 427 has argued that insufficiency of motive, the spur of the moment and a single fire are not grounds for conversion of death sentence to life imprisonment; that the appellant was not a teenager and person of immature mind so he cannot take the benefit of presence of his father and the Lalkara raised by him that the seat of injury indicates the intention of assailant; that no mitigating circumstances exist in favour of the appellant and that he was rightly sentenced to death. The learned counsel appearing on behalf of the State while adopting the line of arguments advanced by the learned counsel for complainant support the judgment passed by the learned trial Court.
8. We have heard the learned counsel for parties and have scanned the entire record with their valuable assistance. The occurrence has not been denied by the appellant. However, he has given his own version, which has been reproduced in para.4 ante. It is settled law that in suchlike situation both the versions are to be put in juxtaposition in order to find out which of the two is true or nearer to truth. The prosecution case rests on the statements of Gulzar Hussain Shah (P.W.1) and Muhammad Khan son of Saee Muhammad (P.W.8). Gulzar Hussain Shah is father of the deceased.
His relationship with the deceased would not be enough to discard his statement particularly when he reasonably explained his presence at the spot. He was subjected to very lengthy cross- examination, but intrinsic value of his evidence could not be shaken. Muhammad Khan (P.W.8) is an independent witness. He was also subjected to very lengthy cross-examination, but no dent could be caused in veracity of his statement. He had no enmity or as against the appellant so as to involve him in a false case. The statements' of eyewitnesses to the extent of appellant are fully supported by the medical evidence as well as circumstances of the case.
9. The prosecution has also successfully proved the motive behind the occurrence. As against that the defence plea put forth by the appellant is not supported either by the circumstances of the case or by any independent evidence. D.W.1 and D.W.2 both were related to the appellant and were chance witnesses as they failed to convincingly explain their presence at the time of occurrence.
Both the b. Ws. Have also contradicted each other on material points. Their statements, therefore, are not worthy of any credence. According to the defence plea the deceased lost his life due to fire caused by Ali Tarkhan, which was aimed at the appellant, but it hit the deceased. In that case a father would not substitute the killer by an innocent person. The defence plea is also belied by the medical evidence as according to the defence plea the fire was caused from a very close range while the Medical Officer did not find any blackening or burning around the wound. During cross- examination P.W.3 Dr. Shafique Ahmad, explained that as the injury did not carry any blackening, therefore, it must had been fired beyond a range of six feet. The prosecution has successfully proved its case against the appellant and the learned counsel for appellant has wisely, not pressed for acquittal of the appellant.
' 9-A. Having come to the said conclusion we have given our conscious and considered thought to the quantum of sentence in the circumstances of the case. Undoubtedly, the occurrence took place in the sitting room (Baithak) of Naseer-ud-Din, father of the appellant. According to the F.I.R.
During conversation the tempers rose and the situation worsened. Thereafter, hot words were exchanged between the parties. It is also in the evidence that Naseer-ud-Din, father of the appellant, directed his son to kill Saqlain Abbas as Taseer-ud-Din was highly annoyed over the demand of money paid to him. Under the influence of his father's direction the appellant, who was in early twenties caused a single fire, which, unfortunately, proved fatal. Admittedly, the appellant did not repeat the fire. In similar situation the Honourable Supreme Court in case of Nazir Ahmad v.
The State 1999 SCM R 396 reduced the sentence of death to life imprisonment. It was observed by Supreme Court that "the appellant appears to have acted under the influence of his father, which can be treated to be a mitigating circumstance for awarding lesser sentence to the appellant.
Similar view was expressed by the apex Court in case of Noor Elahi alias Kala v. The State 2001 SCM R 1363. The Honourable Supreme Court upheld the above noted view in a recently decided case Muhammad Latif v. The State PLD 2006 SC 273. The learned trial Court has committed an error by convicting the appellant for the offence under section 302(a), P.P.C. By overlooking the provisions of section 304, P.P.C.
10. In the above noted situation we alter the conviction of appellant from the offence under section 302(a), P.P.C. To the Offence under section 302(b), and reduce the sentence to imprisonment for life. Benefit of section 382-B, Cr.P.C. Is given to the appellant. The order passed by the learned trial Court under section 544-A, Cr.P.C. Is maintained. With the above noted modification in the conviction and sentence this appeal is partly allowed. Death sentence is not confirmed. The Murder Reference is answered in negative.