MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.---Appellant Bao Saleem son of Karim Bakhsh was tried for the murder of one Taj Muhammad in case F.I.R. No. 132, dated 13-3-1998 registered under section 302, P.P.C. At Police Station Kotwali, Gujranwala by the Addl. Sessions Judge, Gujranwala who vide judgment, dated 1-2-2000 convicted the appellant under section 302(b), P.P.C. And sentenced him to death as well as to pay Rs.50,000 as compensation to the legal heirs of Taj Muhammad deceased as required under section 544-A, Cr.P.C. Or in default whereof to undergo six months'. R.I.
2. Calling in question the impugned judgment, appellant filed the instant appeal while trial Court has made a reference (M.R. No. 305 of 2000) under section 374, Cr.P.C. Seeking confirmation of death sentence awarded to the appellant. Both these matters are being disposed of together by this judgment.
' Succinctly the prosecution story as narrated in the F.I.R. Is that Taj Muhammad deceased along with his brother Said Muhammad (complainant), Nazar Muhammad and other Pathans used to sell house hold articles while sitting on Tharas of shops in Nagry Bazar Gujranwala. On 13-3-1998 at about 4.00 p.m. All of them in normal routine were selling the articles while sitting on the Thara when Bao Saleem appellant came to Taj Muhammad deceased asking him to pay Rs.20. Upon the refusal of the deceased appellant (Bao Saleem) took out chhurri from the fold of his lion cloth and gave blows on the right side of chest, left wrist and right hand of Taj Muhammad deceased who fell on the ground. On seeing the occurrence complainant along with other witnesses intervened and appellant while brandishing chhurri fled away from the spot. The injured was removed to Civil Hospital, Gujranwala from where after providing first aid he was referred to Lahore but statedly on his way he succumbed to the injuries near Aminabad More, Gujranwala.
' Motive for this occurrence was that Bao Saleem appellant used to take articles from the deceased without payment as Jagga Tax and on the day of occurrence upon the refusal of the deceased appellant had committed the murder.
4. Matter was reported to Muhammad Azam S.-I. P.W.9 who entered formal F.I.R. And after conducting formal investigation submitted challan before the trial Court where prosecution produced nine witnesses including Said Muhammad P.W.1 and Shahzad Khan P.W.2 (eye-witnesses of the occurrence) to prove the charge against the appellant.
5. Appellant while making statement under section 342, Cr.P.C. Took up the stand that on the day of occurrence he purchased chhurri from Taj Muhammad deceased and a dispute arose between him and the deceased at the price of chhurri. He being mentally retarded under mental fits and being provoked suddently due to the behaviour of Taj Muhammad deceased attacked upon him with chhurri and that he had not committed Qatl-e-Amad. Appellant neither made any statement under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
6. Trial Court after appraisal of evidence available on record, vide judgment, dated 1-5-2000 convicted and sentenced the appellant as narrated earlier.
7. We have considered the contentions of learned counsel and have gone through the record of this case. It is a case of single accused who committed the murder of Taj Muhammad in a broad- daylight within the view of Said Muhammad P.W.1., brother of the deceased, Shahzad Khan P.W.2 and others. Record of this case is absolutely silent about any enmity of the appellant with the eye- witnesses to say that witnesses had any motive or malice against the appellant to falsely implicate him in this case. Normally in a case of single accused, while leaving real culprits substitution by the kith and kin of the deceased is a rare phenomenon. The presence of Said Muhammad P.W.1. Stands established from the record of this case and there is nothing in his statement to doubt his credibility or to say that he had not seen the occurrence. As far Shahzad Khan P.W.2 is concerned, during the cross-examination he had admitted that at the relevant time he was not present and was informed about the occurrence by some other person. The statement of this witness is of no value and the same stands rejected.
It is well-established principle of criminal jurisprudence that while deciding the criminal matter it is the quality and not quantity of the evidence which matters. In the present case sole statement of Said Muhammad P.W.1 which also find support and corroboration from the medical evidence is sufficient to be relied upon for upholding the conviction of the appellant. The statement of this witness inspires confidence, rings true and is persuasive in nature. Even otherwise, the appellant while making statement under section 342, Cr.P.C. Has admitted the commission of this offence and has raised a plea of insanity but in support of this plea he has not produced any documentary or oral evidence and in our view this plea is nothing but an afterthought.
As far as quantum of sentence is concerned, we are of the considered view that in the circumstances it is not a case of confirmation of death sentence of the appellant.
Firstly, it is not clear from the record as to what transpired between appellant and the deceased immediately before the occurrence. During the cross-examination Said Muhammad P.W.1 has admitted that he does not know from which side the accused came and that the accused was inflicting chhurri bellows when he saw him. The genesis of the occurrence is shrouded in mystery.
Secondly, motive for this occurrence that appellant used to get things from the deceased without payment as Jagga Tax is also not proved from the record. Neither any witness has deposed in this regard nor the Investigating, agency made any effort to collect independent evidence in upport of this part of the prosecution case.
Thirdly, the evidence of recovery of blood-stained churri at the instance of appellant is also doubtful. According to the Investigating Officer the said recovery was effected at the instance of appellant from a garden whereas the statement of recovery witness namely Shahzad Khan P.W.2 is that chhurri was lying at the spot from where it was taken into possession by the police.
In the said backdrop of the case, we are persuaded to take a lenient view qua the quantum of sentence. Accordingly, while dismissing the appeal, sentence of the appellant is converted into imprisonment for life with the benefit of section 382-B, Cr.P.C.
While parting with the judgment we would like to clarify that the observation of the learned Addl.
Sessions Judge, that in default of payment of compensation appellant shall further undergo R.I. For six months is not correct. The impugned judgment to this extent stands rectified and it is observed that in default of payment of compensation appellant shall further undergo six months as S.-I.
Death sentence is not confirmed and the murder reference is answered in the negative.