1. ' BASHIR A. MUJAHID, J.---Inam Ullah son of Ahmad Khan appellant has challenged judgment, dated 16-2-2000 passed by the learned Sessions Judge, Mianwali whereby the appellant was convicted for murder of Muhammad Ramzan and sentenced to death under section 302(b), P.P.C.
2. And was also ordered to pay compensation of Rs,1,00,000 under section 544-A, CI .P.C. To the legal heirs of the deceased, failing which he had to undergo two years' R.I.
3. ' The brief facts of the case are that Atta Ullah son of deceased Muhammad Ramzan got F.I.R.
4. No,164 (Exh.PG) registered at Police Station City, Mianwali at 8 p.m. About the occurrence allegedly took place on 3-5-1999 at 7 p.m. Stating therein that at 7 p.m. On the day of occurrence Muhammad Ramzan (deceased) along with his son Atta Ullah, his grandson Sana Ullah and Ghulam Habib (not produced) was sitting on a cot outside the shop of Muhammad Ramzan.
5. Meanwhile, Inam Ullah, appellant arrived at the spot in a Rikshaw and made two fire shots from his double barrel gun at Muhammad Ramzan hitting on his left arm who fell on the ground and Inam Ullah fled away while brandishing gun in the air. The motive for the occurrence was that previous night at 9 p.m. There was a quarrel between the deceased and the appellant. The deceased and the complainant had given slaps to the appellant who was of bad character and Muhammad Ramzan was taken into Civil Hospital, Mianwali by the P.Ws. Where he succumbed to the injuries.
6. ' Mehr Muhammad Asghar, S.-I. P.W.11 after registration of the formal F.I.R. Exh.PG arrived at D.H.Q.
7. Hospital, Mianwali and prepared injury statement on the dead body of Muhammad Ramzan deceased through memo Exh.PH and inquest report Exh.PK and handed over dead body to Muhammad Bashir, P.W.4 for post-mortem examination and he himself recorded the statements of Sana Ullah and Ghulam Habib under section 161, Cr.P.C. Then he proceeded to place of occurrence and collected blood-stained earth through memo. Exh.PF. On 3-5-1999 he took last worn clothes of the deceased produced before him through memo. Exh.PD. On 18-5-1999 he arrested the accused who was holding gun P4 along with 5 live cartridges P5/1-5 which were taken into possession through memo Exh.PE. After completion of investigation challan against the accused was submitted.
8. ' The trial Court framed the charge which was denied by the accused and he claimed trial.
9. ' During the trial the prosecution examined as many as 11 witnesses to prove the guilt of the accused.
10. ' The medical evidence was furnished by Dr. Zaheer ud Din, P.W.2 who conducted the post-mortem examination of the dead body of Muhammad Ramzan on 4-5-1999 at 12-30 p.m. And found the following injuries on his body:--
(1) A fire-arm entry wound 10 x 5 c.m. On the anterior lateral aspect of the upper part of left arm, just below the left shoulder-tip. There was blackening of edges of the wound. Broken pieces of bone were visible. Major vessels and muscles were found injured.
(2) A group of four fire-arm exit of injury No,1 (wounds) in the area of 8 x 5 c.m. On the posterior aspect of upper part of left arm, two of them measuring 1 x 1 c.m., third 2 x 1/2 x 1/2 c.m. And fourth 5 x 1 1/2 c.m.
11. ' Before that on 3-5-1999 Zahid Hussain, P.W.1 had medically examined Muhammad Ramzan (deceased) and found the same injuries.
12. ' The ocular account was furnished by Atta Ullah, P.W.9 who was complainant of the case. He supported the version of the F.I.R. And narrated the motive for the occurrence. Sana Ullah son of Atta Ullah, complainant and grandson of the deceased appeared as P. W,10 and his statement is in line with the statement of the complainant. He also identified the dead body of Muhammad Ramzan deceased at the time of post-mortem examination. Muhammad Shafiq, P.W.3 prepared the site plan of the place of occurrence. Muhammad Bashir, P.W.4 escorted the dead body of Muhammad Ramzan to the mortuary for post-mortem examination and produced last worn clothes of the deceased before the Investigating Officer. Ata Ullah, HC P.W.5. Handed over sealed parcel of blood stained earth to Khuda Bakhsh, HC P.W.7 for its transmission to the office of Chemical Examiner. Niaz Muhammad, FC P.W.6 was recovery witness of gun P4 along with five live cartridges P5/1-5 which were taken into possession through memo. Exh.PE and he attested the memo.
13. ' The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.PM and that of Serologist Exh.PN.
14. ' The statement of the 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,6 as to why the case against him and P.Ws. Deposed against him, he stated as under :-- ' "The P.Ws. Are closely related and inimical towards me.' The story of the prosecution is fabricated.
15. In fact oh the day of occurrence my nephew Aamer went to the shop of the deceased and got some grocery items on credit from the deceased, but since the deceased was unwilling to give the said items on credit, he snatched the same from my nephew and abused him. Per chance I went to the shop of the deceased and when I saw that the deceased was beating and abusing my minor nephew Aamer, I also abused the deceased at which the deceased went into his shop, brought a gun and he wanted to fire at me. In the meantime I only wanted to snatch gun from his possession.
16. During that scuffle the barrel of the gun was in the hand of the deceased while the Butt was in my hand and during that scuffle the trigger of the gun went off and the deceased sustained fire-arm injury. I did not want to murder him nor it was my intention to commit any murder. I was restraining the deceased to fire at me. The local police in collusion with the complainant fabricated this case of intentional murder against me as the complainant of this case is a big contractor and influential person. I am innocent. "
17. ' The appellant also examined Aamer son of Shafa Ullah as DW1 in his defence.
18. ' The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal. The complainant has filed Criminal Revision No, 190 of 2000 for enhapcement of the compensation and the trial Court has sent up Murder Reference No, 103 of 2000 for confirmation of death sentence of the appellant, therefore, all the matters are being decided by the judgment.
19. ' Learned counsel for the appellant at the very outset has submitted that he would not challenge to conviction if the sentence is reduced adequately as according to him the motive alleged by the complainant was not proved and in the F.I.R. He stated that the appellant was "Badqmash" but before the trial Court he improved the motive by stating that the accused used to collect 'Ghunda Tax' from the shop. By placing reliance on 2004 PCr.LJ 47 Qamar Ehsan v. The State 2002 PCr.LJ 85.
20. The State v. Iftikhar Hussain and others 2002 SC MR 99 Feroze Khan v. State, it has been argued that when the complainant is changing the motive from one to the other it is considered as mitigating circumstance for awarding lesser penalty, therefore, it has been prayed that the sentence be reduced from death to imprisonment for life.
21. ' On the other side learned counsel for the complainant assisted by learned counsel for the State has opposed the appeal. They have placed reliance on 2003 SCM R 489, 2001 SCMR 188 and 1999 SCM R 1668 in support of their contentions. Learned counsel for the complainant also pressed his criminal revision.
22. ' We have given our due consideration to the contentions raised at the Bar and examined the record.
23. ' The occurrence, time and place of occurrence have been admitted by the defence. However, the manner in which the occurrence took place has been disputed. The occurrence took place at the shop of the deceased and of the complainant. The presence of the complainant Atta Ullah, P.W.9 and his son Sana Ullah, P.W.10 is natural and has been sufficiently explained. They are consistent in their statements alleging that the appellant arrived at the spot and made fire shots at the deceased, they are truthful witnesses and their presence at the spot is quite natural, therefore, believing them truthful witnesses we rely on their testimony and find that the case of the prosecution has been proved against the appellant by the ocular account corroborated by the medical evidence and admission of participation in the occurrence by the accused/appellant himself, so learned counsel for the appellant is justified in not challenging the conviction.
24. ' As far as sentence is concerned, the motive alleged by the prosecution was that the appellant was a 'Ghunda' but during the trial the complainant P.W.9 and Sana Ullah, P.W.10 have attempted to change the motive by stating that the appellant used to collect 'Ghunda Tax' but this fact has not been corroborated from any other independent source. Neither the Rikshaw was taken into possession by the Investigating Officer nor it was traced out. Admittedly, both the parties are resident of the same Mohallah and there is no deep rooted enmity except the alleged occurrence taken place previous night, therefore, we find that it is not a preplanned murder. The occurrence took place neither at the spur of the moment or the appellant might have acted as a result of provocation caused by the complainant, therefore, while maintaining the conviction we reduce the sentence from death to imprisonment for life which will meet the ends of justice. However, imposition of fine is maintained but the sentence in default therefore is reduced to six months'
25. S.I. Benefit of section 382-B, Cr.P.C. Will also be available to the appellant. The appeal is dismissed with the above modification.
26. ' Murder Reference No, 103 of 2000 is answered in the Negative.
27. ' Criminal Revision No, 190 of 2000 also stand dismissed. Sentence reduced.