' ALI NAWAZ CHOWHAN, J. This judgment shall dispose of Criminal Appeal No, 1272 of 2000, as well as Murder Reference No, 539 of 2000.
2. Khalid Mehmood, appellant was convicted under section 302(b) of the Pakistan Penal Code and sentenced to death. He was also directed to pay a compensation of Rs, 50,000 to the legal heirs of the deceased. In default thereof he is to further undergo six months' S.I.
3. The matter arises on account of F.I.R. No, 18 dated 11-12-1997, registered under sections 302 & 109, P.P.C, at Police Station Terkhani, Tehsil Samundri, District Faisalabad.
4. According to the F.I.R. Story which was narrated by Bagh Ali (P.W.5) the occurrence took place on 11-2-1997 at about 7-30 a.m. He supported this story during his testimony as P.W.5 before the Court by stating as under:-- ' "On 11-2-1997 at 7-30 a.m. I Aman Ullah and Qutab Din P. Ws. Left of Chak No, 227/JB Mallu Nangle while boarded on motor cycle. My son Liaqat Ali deceased had contracted marriage with Mst.
Shehnaz Kausar on his own, nearly three months before and since then he was living there in Chak No,227/JB. When we reached, at 8-00 a.m., on Rajbah Tarkhani, we saw, my son Liaqat Ali and accused Khalid Mehmood both while boarded on a motor cycle were coming. My son Liaqat All was driving motor cycle whereas Khalid Mehmood accused was sitting as pillion rider, when Liaqat Ali and Khalid Mehmood reached in the area of Chak No, 225/JB then the accused Khalid Mehmood started making firing with his pistol upon my son Liaqat Ali out of which certain fire shots hit my son on his head and belly. Accused Khalid Mehmood had made fires while sitting on the motor cycle and thereafter he ran away while boarding on the aforesaid motor cycle. I Aman Ullah and Qutab Din, all the three attended to the deceased Liaqat Ali but he succumbed to his injuries.
The accused Khalid Mehmood is uncle "MAMUN" of second wife of Liaqat Ali deceased. Khalid Mehmood accused has murdered Liaqat Ali on abetment of Asghar Ali accused. I while leaving Qutab Din and Aman Ullah along with the dead body,' myself went to the police station for reporting the occurrence."
5. The motive part of the story is grievance over the marriage of the deceased with Mst. Shahnaz Kausar, maternal niece of the appellant. The deceased was Milk Seller and he used to sell milk on his motorbike in Gojra Town. The deceased had previous wife and there were three children out of the said wedlock. Some relevant excerpts from the testimony of the complainant are being reproduced below:-- ' "We had seen the deceased and accused coming from a distance of 1 1/2 acre. We stopped there, and they had also seen us from the same distance."
' "I did not state in F.I.R. That the deceased received firearm injuries on his back (confronted with Exh.PD where the word peeth is given). The deceased had received 4/5 fire shots. First fire shot hit back side of the head of the deceased Liaqat Ali who immediately after having been hit fell down on the ground. Likewise his motor cycle also fell on the ground. The accused Khalid Mehmood also made fire upon Liaqat Ali when he was lying in fallen condition. When the deceased Liaqat Ali fell down, his face was towards earth. Liaqat Ali had fallen on the berm of the road. Chak No, 225 is at a distance of about two squares from the place of occurrence. I went to the police station by motor cycle and also came back on motor cycle."
' "Immediately after making fires the accused Khalid Mehmood went away, while boarded on the motor cycle, without wasting any time. Place of occurrence is "KHAM" site. Firing was made firstly when the motor cycle of my deceased son was on metalled road however, my son fell down on katcha site. The empty of pistol had also fallen on the site, however, I did not notice as to whether those were lying there. The police had inspected the spot. I do not remember as to whether the police collected the empty of pistol or not from the place of occurrence."
' "His first wife has left the chak. From his first wife there are two daughters and one son. It is incorrect that a case under section Abkari Act was registered against my son. There may be some case against my son for quarrelling with any one but I do not know its detail."
' It is incorrect that my son Liaqat was looted by dacoits in the way and they after looting killed him: There were no fire shots marks on the motor cycle. We did not chase the accused Khalid Mehmood as we were empty handed. At the time of the registration of F.I.R. I had not mentioned it to police that the accused Khalid Mehmood and Asghar Ali had made conspiracy to murder his son Liaqat Ali deceased.
6. The complainant's version was supported by eye-witness Aman Ullah. (P. W.6).
7. Nawab Din is a witness of the conspiracy theory. According to him he along with Ramzan, P.W.
Were proceeding somewhere and had reached near the Baithak of Khalid Mehmood, appellant.
When they heard from outside this house the appellant speaking to his co-accused Asghar Ali on the question of marriage of Shahnaz Kausar with the deceased and was seeking his help, in case he murdered Liaqat Ali because both had a common grievance about the marriage. That in response Asghar Ali agreed to support. But it appears that this theory could not be substantiated and Asghar Ali was acquitted and it was done rightly, so because such like stories are easily fabricated and with impunity, and recorded through supplementary statements for involving maximum people of the other side. Such tales are viewed with doubt.
8. Mst. Shahnaz Kausar, now the widow of Liaqat Ali appeared as a witness in this case. Her statement is of great importance for the prosecution case. In her examination in chief she stated under:-- ' "My parents live in Chak No,227/GB. My husband Liaqat Ali s/o Bagh Ali was resident of Chak No,155/GB. Liaqat Ali was on visiting terms with us. I with my own free will and with consent of my mother (Mst. Parveen) married with deceased Liaqat Ali. My marriage took place three months before the occurrence of this case. My husband Liaqat Ali used to live in our house as "Ghar Damad." My maternal uncle Khalid Mehmood, accused present in the Court, was annoyed on this marriage of mine. On account of this grudge on 11-2-1997 at about 6/6-30 a.m, my aforesaid maternal uncle Khalid Mehmood came to our house. He took my husband Liaqat Ali along with him while boarded on Motor Cycle. He in the way after making fires upon him with pistol, murdered him and after that he succeeded in running away from there, along with motor cycle.
9. The following excerpts from her statement are also reproduced below:-- ' "In the morning of fateful day my material uncle had not come on motor cycle rather he had come there on foot, volunteered that my maternal uncle previously had also come twice in our house to murder Liaqat Ali. Police had recorded my statement. In my statement I got recorded to police that due to my marriage with Liaqat Ali deceased, my maternal uncle Khalid Mehmood was annoyed."
' "It is incorrect that in Chak No,155/GB I developed illicit relations with the deceased Liaqat Ali on account of which my maternal uncle turned me out from his house and chak. In my marriage with the deceased Liaqat Ali none of my relatives participated except my mother."
' "I came to know about the murder of my deceased husband at about 7/7-30 a.m. I know simply this that I came to know that my husband had been murdered but I am not in a position to state who informed me in this behalf. The moment we received information, I along with my mother and many other persons rushed to the spot. I cannot tell the distance in between our chak and place of occurrence. I reached at the spot while boarded on a Tonga."
' "Bagh Ali, Qutab Ali and Aman Ullah P. Ws. Had reached at the spot."
10. Dr. Muhammad Ghafoor Zafar (P.W.8) had conducted post-mortem examination on the dead- body of the deceased Liaqat Ali and found the following injuries on his person:--
(1) An oblique oval wound 1/2 c.m. x 1/2 c.m. On right side of forehead, edges of wound were burnt and inverted. The probe passed, went towards exit wound. This is the enterance wound.
(2) An oval wound 1/2 c.m. x 1/2 c.m. On right temporal region, the edges of wound were burnt and inverted. The probe passed, obliquely, went towards exit which was upper part of scalp. This is also enterance wound. The distance between injury Nos.1 and 2 was about 5 c.m. Below injury No, 1.
(3) A shattered wound 3 c.m. x 2 1/2 c.m. On the upper part of right side of scalp. The edges were everted and not burnt. This was the exit wound of injury No,2. The cracking sound under the wound "Exit wound".
(4) A shattered wound 3 c.m. 2 1/2 c.m. On the frontal upper part of scalp. The edges were everted and not burnt. On probing it proved that it was the exit wound of injury No,1 (exit wound). Injuries No,3 and 4 distance is about 8 c.m. Upward.
(5) An oval wound 2.5 c.m. x 2.5 c.m. On the left side of the scalp. The edges were inverted and burnt, probing done. This was the enterance wound. Creaking sound were felt under the injury.
(6) A shattered wound 3 c.m. x 3.5 c.m. On the left temporal region 5 c.m. Below injury No,5, brain matter was coming out, edges were everted, it was the exit wound of injury No,5.
(7) An oval shattered would 1/2 c.m. x 1/2 c.m. On right side of abdomen (lumber region) going to back of deceased. The edges were burnt and inverted. The probe passed towards back near vertebral column. This was the enterance pictorial wound.
(8) An oval shattered wound 1/3 c.m. x 1/3 c.m. On abdomen above and oblique from injury No,7.
The edges were burnt and inverted. The probe passed going to back near vertebral column. This was enterance wound.
(9) An oval wound 3/4 c.m. x 3/4 c.m. On the back middle 6 c.m. From vertebral column. The edges were everted and shattered. This was the exit wound of injury No,7.
(10)A wound 3/4 c.m. x 3/4 c.m. On the back middle just near vertebral column. The edges were everted and not blackening. This was the exit wound of injury No,8.
' The following was his opinion:-- ' "In my opinion, by doing external as well as internal post-mortem examination, all the injuries were ante mortem inflicted with fire-arm weapon. All enterance injuries Nos.1, 2, 5, 7 and 8 were grievous, fatal and dangerous. Rest injuries were exit wound e.g. 3, 6, 9 and 10. Death in this case was due to haemorrhage and shock. As a result of injuries to vital organs e.g. Brain, kidney, stomach and intestine. Injuries Nos.1, 2, 5, 7 and 8 were sufficient to cause death individually and collectively in ordinary course of nature. The probable time between injuries and death almost immediately and that between post-mortem and death about 8 hours."
11. Exh. PE is the post-mortem report, whereas Exh. PE/1 reflects representation of the injury.
12. Ghalam Hazoor S.-I. (P.W.12) had since 11-2-1997 investigated this case and until 1.2-4-1997 when transferred. He visited the spot along with complainant and other police officers. He prepared the injuries statement and Inquest Report of the deceased and prepared a rough plan of the place of the occurrence. He secured die blood-stained earth and made it into a sealed parcel and later sent the dead-body for, post-mortem examination and received the last worn clothes of the deceased. He got prepared from Abdul Hakeem Patwari the site plan and scribed his notes, in red ink. Later he pursued for the arrest of Khalid Mehmood, who being an army personnel was in his army Unit at Multan.
13. Muhammad Ashraf, S.-I. (P.W.13) later took over the investigation. He procured the arrest of the appellant. According to him, on 8-5-1998, the appellant led to recovery of the pistol .30 bore from the bushes near the place of occurrence as well along with its licence. He subsequently submitted a report under the provisions of section 173 Cr.P.C.
14. Amongst the formal witnesses, Manzoor Hussain identified the dead-body and also attested the recovery memo. And the last worn clothes of the deceased. Abdul Aziz witnessed the securing of the blood-stained earth. Waris Ali witnessed the recovery of the pistol got recovered from Khalid Mehmood, appellant on 8--1998 and its licence. Muhammad Sarwar (P.W.10) had escorted the dead-body for post-mortem examination and he also received the last worn clothes of the deceased.
15. The appellant in this case also appeared as his own witness in support of his plea of alibi and produced two witnessed of his Unit. The plea of alibi was not given much emphasis before this Court particularly, when the following was the statement of the person, who had brought the alibi record.
' "It is correct that nominal roles are in a file and these are not in a binded form. There is nothing in my hand any part of nominal roles. There are no sign of any responsible officer on these nominal roles. Volunteered that these are some sort of elementary papers, entry of which is duly made in the concerned register. It is correct that on none of nominal roles there are signature of accused Khalid Mehmood, No, part of attendance register is in my handwriting. There are signature of none on this attendance register. By whom entries of attendance register were made I do not know.
' I also cannot identify the writing made on attendance register.
16. The following excerpt from the testimony of the appellant is relevant and is reproduced below:-- ' "It is incorrect the marriage of my niece with Liaqat All deceased was in my knowledge. Since we were having no relations with my sister and my niece, therefore, there was no need of our willingness for her marriage. It is incorrect that on Eid I came to my home from my duty.
17. While making his statement under section 342 Cr.P.C, he stated as under:-- ' "The deceased was a narcotic peddler he used to sell liquor and was a drinker of Alcohal. I informed the police a number of times, on 30-8-1997 police arrested the deceased in a case under section 3/4 Narcotics Act, moreover there was enmity between my family and that of deceased family and to take revenge the deceased who was a milk seller and used to purchase milk from Chak No, 227/GB had developed illicit relation with Shahnaz P.W. And eloped away with her. This fact came to my knowledge after the alleged occurrence because we were not on visiting terms with our sister, Shahnaz deliberately tried to involve me in the false case. The other P.W. Related to the deceased and they are falsely deposing due to enmity. I produce F.I.R. No,305 dated 30-8-1996 P.S. Gojra under section 3/4 etc. It was an unwitnessed crime.. I have been involved due to enmity and suspicion."
18. Learned counsel for the appellant argued that the complainant Bagh Ali and Aman Ullah were not eye-witnesses. That it was only subsequently when they learnt about the occurrence and the case was fabricated. In further support, what he stated above, he referred to the medical evidence and stated that it belied the ocular part of the story, which was coming through the. F.I.R. And later improved in the testimony by the complainant.
19. It was the contention of the learned counsel that the occurrence had not taken place the way it was narrated by the prosecution 'side. Because the story if believed, would show that the appellant acted unnaturally firing at the deceased while risking his own life. Learned counsel further went on saying that the locale of injuries when put in juxtaposition with the medical report shows contradictions.
20. While focussing on the locale of injuries and narrations made by the eyewitnesses about how these were inflicted on the person of the deceased, we came to the conclusion that the occurrence may not have taken place the way in which it was described. Therefore, we became careful while appreciating the testimonies of the eye-witnesses.
21. But the most important evidence is provided by Mst. Shahnaz Kausar (P.W.4), which shows that her family was not happy over her marriage with the deceased. She categorically accused her maternal uncle, the appellant for the murder of her husband by stating that he had all'intentions to kill him. She further through her evidence established that the deceased was taken by him on his motorbike on the same day from her house.
22. The answer to the argument, as to why will the deceased accompany the appellant in the view of an inimical background is provided in statement during cross-examination of Mst. Shahnaz Kausar in the following words:-- ' "Firstly my mother supported the prosecution case but now she was supporting her brother Khalid Mehmood. My sister is also supporting the defence. I cannot give any other proof of the fact that the accused Khalid Mehmood came on the fateful morning to our house except this fact that we saw him.
' "I did not stop my maternal uncle and asked him that why he was in so hurry. He had simply told us that he was to get money from Noor Pur, therefore, he asked my husband Liaqat Ali to accompany him."
23. It is an admitted position that the marriage of Mst. Shahnaz Kausar had brought friction inter se the parties, whereas there was no previous enmity between the parties belonging to both sides.
Therefore, there is no question of false involvement. We have already discarded the plea of alibi.
We also found that the F.I.R. Of this case was prompt. Although, some narrations of the facts created contradiction but these contradictions should not stand in the way when we are believing the story of Mst. Shahnaz Kausar. This is a case of a single accused The substitution is a rare phenomenon. Under the circumstances of the case even if we are skeptical about some of the facts stated by the eye-witnesses, we cannot just throw away the prosecution case entirely on this account. We, therefore, uphold the conviction.
24. However, this is a case where we have to invoke the principle of safer administration of justice and we have to be careful as far as the aspect of sentencing of the appellant is concerned. In the interest of B safer administration of justice, we reduce the sentence of appellant from death to life imprisonment and answer the reference 'accordingly. The benefit of section-382-B Cr.P.C. Is also given to the appellant. Disposed of.