' MUHAMMAD FARRUKH MAHMUD, J.---This judgment will dispose of Criminal Appeal No,446 of 2002 filed by Bashir, who, along with Ameer and Allah D.Itta, faced trial in case F.I.R. No,568, registered at Police Station Pindi Bhatian, District Hafizabad, on 2-9-2000 for offence under section 302134, P.P.C., before learned Additional Sessions Judge, Pindi Bhatian, who after conclusion of trial, vide his judgment, dated 27-2-2002 while acquitting Ameer and Allah Ditta, convicted the appellant under section 302(b), P.P.C. And sentenced him to death with compensation of Rs,1,00,000 or in default six months' S.I.
2. Murder Reference: No,174 of 2002 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
3. Brief facts of the case as mentioned in F.I.R. Are that on the fateful night while the complainant, his son Piran Dittan, and his daughter-in-law Safia Bibi was sleeping in the courtyard of his house, at about 1-30 a.m. When the complainant suddenly awoke, he saw that Bashir Ahmad (armed with .30 bore pistol), Ameer and Allah Ditta (empty-handed) were standing in the courtyard. Ameer and Allah Ditta raised Lalkara to kill Piran Ditta. Thereafter Piran Ditta and his wife Safia Bibi woke up.
Bashir fired a shot from a close range at Piran Ditta, which landed on his left shoulder. The second fire caused by Bashir hit on the backbone of Piran Ditta. After receiving injuries Piran Ditta fell on the ground. Thereafter the accused fled away from the spot. Piran Ditta died at the spot.
4. The motive behind the occurrence, as narrated in the F.I.R., was that about one and a half year prior to the occurrence Amin son of Nawaz (grandson) of the complainant had committed murder of Nazir Ahmad, brother of Bashir Ahmad accused and for that grudge the accused had committed the murder of Piran Ditta with their common intention.
5. After registration of formal F.I.R., the investigation of the case was taken over by Mirza Muhammad Ashraf. S.I./P.W.11, who conducted thorough investigation, arrested the accused and after effecting recovery of pistol .30 bore at the instance of Ameer, sent them to face trial.
6. At the trial, the prosecution in order to prove its case produced 11 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.PN, Serologist Exh.PO and that of Forensic Science Laboratory Exh.PP closed its case. The accused in their statements recorded under section 342, Ct .P. C. Pleaded their innocence and false implication. They did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial, the learned trial Court while acquitting Ameer and Allah Ditta, convicted and sentenced the appellant as stated above.
7. The learned counsel for the appellant after having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record in support of this appeal has contended that the occurrence took place in the dark of night; that no source of light was available to enable the witnesses to identify the assailant, as neither any bulb was taken into possession by the Investigating Officer nor bulb has been shown in the scaled site plan; that the F.I.R. Was lodged after an unexplained inordinate delay, which denotes that the P.Ws. Were not present at the time of occurrence; that no eye-witness is mentioned in the inquest report; that as far as the appellant is concerned, he wis found to be innocent in all the investigations conducted by various high ranking police officers; and that the prosecution failed to prove the motive and no recovery was effected at the instance of the appellant. In the alternate the learned counsel has submitted that in any case the appellant did not deserve extreme penalty of death. To substantiate his argument he has submitted that though the motive was set in the F.I.R. Yet it could not be proved and that according to police findings the appellant was found innocent.
8. On the other hand, the learned Additional Prosecutor-General submits that both the witnesses were inmates of the house and their statements are supported by the medical evidence. He supports the judgment passed by the learned trial Court.
9. We have heard the learned counsel for the parties at lengta and gone through the entire evidence minutely.
10. The prosecution case rests upon the direct evidence of Ahmad-complainant of the case and Safia Bibi widow of Piran Ditta-deceased. The occurrence took place A in the house of the complainant, so presence of both the eye-witnesses being inmates of the house was natural. The argument of the learned counsel for the appellant that the real assailant could not be identified is not valid. Firstly it was mentioned in Fard Bayan Exh.PJ/F.I.R. Itself hat the electric bulb was on and secondly the complainant was real uncle of Ameer and Bashir and brother of Allah Ditta (accused), so the accused beingrelated to both the witnesses their identification was not difficult. It is not in evidence that the village was without facility of electric supply. Both the P.Ws. Have given consistent account of the occurrence. They have corroborated each other on all the material points of the case. The deceased received two injuries at the hands of the assailant but the P.Ws. Had not tempted to attribute one injury each to implicate two accused. It was suggested to the complainant that he and Safia. Bibi were present in village Machonika, were parents of Safia Bibi lived, but it was not suggested to Safia Bibi that on the fateful night the complainant was present along with her in her house in village Machonika. Neither the complainant nor Safia Bibi had any or grudge against the appellant so as to involve him in a false case. The statements D of the eye- witnesses are fully supported by the medical evidence and cannot be discarded merely on the point of delay in reporting the matter to the police in Fard Bayan by stating that the matter could not be reported to the police due to lack of transport. During cross-examination he admitted that some of the villagers kept bicycles but that would not mean that the villagers owning bicycles had gone to the place of occurrence during mid of the night. It was suggested to the complainant that house of Bashir, Manzoor Khan and Sharif Meyana were situated near his house but no question was asked to show that after the occurrence these witnesses had gone to the house of the complainant or these witnesses had transport, which could be used by the complainant. On one hand son of the complainant had been murdered, while on the other hand it was his real nephew who had done so. In this difficult situation it was natural for the complainant E to take some time before rushing to the police station.
11. As far as the motive is concerned, in our opinion the prosecution failed to prove it. We may refer here the portion of the cross-examination of Safia Bibi, available at page 37 of the paper book, wherein she stated that the deceased was living separately from his brothers; that it was correct that the deceased was not involved in murder of aforesaid Nazir; and that deceased was not supporting at all accused of murder case relating to Nazir. Similarly the complainant admitted it to be correct that after murder of Nazir till the instant occurrence no altercation took place between both the parties. He further stated that he kept sitting for about seven days for condolence of Nazir.
He admitted it to be correct that his son Muhammad Abbas and grandson Zaman Amin were accused in the murder case of Nazir, so Piran Ditta deceased could not be linked with the murder and there was no occasion for the appellant to take life of Piran Ditta on account of murder of Nazir his brother.
12. The learned counsel for the appellant has laid much stress on the findings of the police, according to which the appellant was innocent. We are afraid that in the presence of direct evidence we F cannot go by the opinion of the police officers. As far as the story of Neyan (Oath) of Hayat alias Hatta is concerned, he was not produced before the learned trial Court and the complainant denied having made statement before the D.S.P. That he had no objection to the findings of the police relating to the innocence of Bashir and Allah Ditta-accused. Mirza Muhammad Ashrif, S.I., who investigated the case, appeared before the learned trial Court as P.W.11.
During cross-examination he stated that Allah Ditta and Bashir accused were declared innocent by him during investigation. He further stated that on asking of the complainant Hatta son of Jalla took Oath in a mosque regarding innocence of Bashir and Allah Ditta. However, there is nothing on record to show that any statement of complainant regarding acceptance of Neyan (Oath) was ever recorded.
13. During investigation recovery of pistol was shown to have been effected at the instance of Ameer (acquitted co-accused). After scanning the entire evidence in our opinion the prosecution has successfully proved its case against the appellant through direct evidence, which was natural, coherent, consistent and G confidence inspiring. The intrinsic value of direct evidence could not be shaken during cross-examination, which was also supported by the medical evidence.
14. Having come to this conclusion we have given our considerate thought as to what should be the proper sentence in the circumstances of the case. Undeniably no recovery was effected at the instance of the appellant rather recovery of weapon had been shown at the instance of Ameer (acquitted accused). The motive as set in the F.I.R. Could not be proved against the appellant. The Investigating Officer pinned H the case against Ameer (acquitted accused). Considering above noted circumstances, while maintaining conviction of the appellant we reduce his sentence to imprisonment for life. In doing so, we have followed the principle of safe administration of justice.
Benefit of section 382-B, Cr.P.C. Is extended in favour of the appellant. This appeal is partly allowed.
15. Murder reference is answered in the negative and the sentence of death is not confirmed.
Sentence reduced.