' MUHAMMAD AKRAM QURESHI, J.---By this single judgment, we propose to dispose of the above noted three cases together, which arise out of case F.I.R. No,72, dated 13-10-1998, registered at Police Station Injra, for the offence under section 302, P.P.C.
2. Muhammad Ayyub son of Inayat Gull, appellant, was tried by the learned Additional Sessions Judge, Attock, who vide judgment, dated 2-12-2000, convicted the appellant under section 302, P.P.C. And sentenced him to death and also ordered to pay compensation of Rs.1,00,000, if recovered, to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. In default whereof, to suffer six months' S.I.
3. Muhammad Ayyub, appellant preferred an appeal, against his conviction, through which, he has challenged the vires of the judgment and prayed for his acquittal. The learned A.S.J., has sent a reference to this Court under section 374, Cr.P.C. Praying for the conformation of the death sentence awarded to the appellant. The complainant of the present case has also filed a criminal revision in this Court, praying for the enhancement of amount of compensation' awarded to Muhammad Ayyub appellant.
4. The prosecution story contained in the F.I.R., Exh.P.A. Is that Feroz Jang deceased was residing in the Colony of Degree College, Attock, along with his wife and children. He was employed as a Professor in the Attock College. There existed a dispute of land between the appellant and Feroze Jang deceased, who went to Mouza Chabb to attend the meeting of Peace Committee Turangabad Chabb, assembled to resolve the dispute of such-land. The deceased while departing for Chhab instructed his son Rafi Ullah Feroze to follow him. Obeying the direction of his father, he came to Chabb village a day before the occurrence. During the night, Feroze Jang deceased and Rafi Ullah Feroze complainant stayed in the house of Mst. Zaib-un-Nisa. When on 13-10-1998, at 6 a.m., the deceased Froze Jang and Mst. Zaib-un-Nisa, were taking breakfast. Sher Jang and Muhammad Mahfooz P.Ws. Resident of the Turangabad also came there. They were sitting in the kitchen and talking each other. Suddenly, from the western window of the kitchen, which was open and steal net was affixed thereon, a fire shot was made which hit the chest of the decease& who fell down. All the P.Ws. Came out of the house and saw Muhammad Ayyub son of Inayat Gul appellant, having a .12 bore gun in his hand and running in the street. He was called by the complainant but latter fled away. This incident was witnessed by above mentioned P.Ws. Besides Sher Muhammad and Muhammad Mahfooz. Feroze Jang deceased succumbed to his injuries. The motive of assault was that a Jirga of Peace Committee was held on the preceding night to resolve the dispute between the deceased and Muhammad Ayyub appellant. The Jirga was chaired by Mehboob-ur-Rehman, who was Ex-Chairman. Habib Khan son of Lal and Habibullah son of Ataullah and Speen Gun son of Taza Gul, resident of Turangabad, Chhab, were the members of the Jirga. The Jirga was decided to be held again on the following day when the deceased and others were coming back after the Jira proceedings, an altercation took place between the appellant and Feroze Jang deceased. Due to this grudge, Muhammad Ayyub, appellant has allegedly committed the Qatl-i-Amd of the deceased.
5. During the course of trial, the prosecution produced 12 witnesses in all. P.W.1 Tariq Mehmood, Constable recorded the formal F.I.R. On receipt of the complaint. He also received the parcels of blood-stained earth and .12 bore gun kept in Malkhana and dispatched it to the office of the Chemical Examiner and Forensic Science Laboratory, Lahore. P.W.2 Ijaz constable escorted the dead body of the deceased for post-mortem examination. P.W.3 Rab Nawaz, Constable, received the parcels of the blood-stained earth, and the crime weapon and delivered the same to the officer of the Chemical Examiner and Forensic Science Laboratory intact. P.W.4 Muhammad Ali, S.-I., partly investigated this case and recorded the statement of Tariq Moharrir on 29-10-1998. P.W.5 Dr. Faiz Muhammad Farooqi, conducted the post-mortem examination of the deceased. P.W.6 Hamid Ullah identified the dead body of the deceased at the time of the post-mortem examination. P.W.7, Sana Ullah witnessed the recovery proceedings of gun P.4, along with empty cartridge P.S. P.W.8 Muhammad Suleman drafted the Scaled of site-plan Exh. P. E. And Exh . P. E. /1 . P .W . 9 Mehboob- ur-Rehman is the Ex-Chairman of Union Council, Chhab who chaired the Jirga of Peace Committee to resolve the dispute between the deceased and the appellant. P.W.10 is the complainant of the case, who supported the contents of the F.I.R. P.W.11 Sher Jang Wajtakar witness who also supported the version of the complainant. P.W.12 Ghulam Mustafa Inspector/Investigating Officer of this case, partly investigated this case. Learned D.D.A., tendered in evidence, the report of the Chemical Examiner Exh.P.L., that of the Serologist Exh.P.M., the report of the Forensic Science Laboratory Exh.P.N.
And closed the case of the prosecution.
6. The statement of the accused was recorded under section 342, Cr.P.C. He relied upon the certificate Mark-A issued by the Principal of College, Attock. In his statement, he pleaded innocence and stated that Feroze Jang deceased had dispute with his brother as well as Hum Zulf and they were having strained relations with each other. Both of Hum Zulf were unhappy of his staying in the house of his father-in-law along with Zaib-un-Nisa P.W. He also stated that no Jirga of Peace Committee was ever held nor he had any dispute of land with Feroze Jang.
7. Learned counsel for the appellant has contended that the prosecution did not produce any documentary evidence showing the alleged dispute between the deceased and the appellant and that alleged illegal possession of the appellant could very easily be proved by the production of Khasra Girdawari of the land in dispute; that the Jirga of Peace Committee was stated to have held a day prior to the occurrence. Mehboob-ur-Rehman P.W.9 was present on the very first day of the alleged occurrence and he signed the inquest report but he never appeared before the police to make his statement regarding the proceedings of Jirga of the Peace Committee. He argues that the statement of Mehboob-ur-Rehman was examined after two months of the alleged occurrence.
His belated examination throws sufficient doubts on the veracity of his statement; that as a matter of fact, no dispute exists between the appellant and the deceased and that the story of motive has been concocted by the prosecution and that the prosecution has miserably failed to prove the motive of assault of the present accused.
8. Regarding the ocular account of the present case, he submits that according to the prosecution, a serious enmity was existing between the appellant and the deceased. P.W.10 Rai Ullah Feroz is the son of the deceased and Sher Jang his nephew. In this view of the matter, both the witnesses are closely related to the deceased and they have motive to falsely implicate the accused in this case and exaggerate; that there was no occasion for the witnesses to come to the place of occurrence at the early hours of the day; that as a matter of fact, the occurrence has taken place in the dead dark hour of the day at about 4 p.m. He gets support from the post-mortem report of the deceased wherein time of death is mentioned as 4-45 a.m. And subsequently altered as 5-45 a.m. By taking support from this fact, he mentions that at the first instance, the version of the complainant was that the death of the deceased occurred at 4-45 a.m,. And subsequently due to ulterior motive and to improve the case, they have mentioned time of occurrence as 6 a.m. It is further pleaded that according to the F.I.R., the deceased and Zaib-unNisa given up P.W. Were taking breakfast but during the post-mortem examination, a semi digested food was recovered from the stomach of the deceased; that there is conflict between the medical evidence and the ocular account. If the deceased was sittinc, at the time of the alleged occurrence and assailant was standing, then direction of the injuries should have been oblique and in the1 present case the direction of the injuries, is horizontal. Learned counsel further contends. That both the P.Ws. Are not the residents of the locality; they were not present at the spot at the time of alleged occurrence an they were summond from their respective residences and made cooked up witnesses in the present case; that non-production of Mst. Zaib-un-Nisa throws sufficient doubt on the worth of the prosecution case. She was natural witness and her examination was necessary for the just decision of the case; that the prosecution evidence qua the ocular account is based on Waj Takar evidence and those evidence are not reliable and the prosecution has miserably failed to prove the ocular account of the present case.
9. Regarding the recovery, learned counsel for the appellant submits that gun allegedly recovered from the residence of the appellant, which is located in thickly-populated area; that keeping in view the provisions of section 103, Cr.P.C. At least two respectables of the locality should have been associated in the recovery proceedings. In the absence of such respectables, the recovery proceedings are doubtful. Even otherwise, the recovery witnesses are close relatives of the deceased and they are partial and interested witnesses and no reliance can be placed upon their evidence; that no empty cartridge was recovered from the place of the recovery and pellet allegedly recovered from the body of the deceased cannot be sent to the Forensic Science Laboratory for their comparison with the weapon of the offence, allegedly recovered from the custody of the appellant; that the recovery of empty cartridge from the alleged weapon of offence is of no help to the prosecution and even otherwise, the said recovery is doubtful in nature.
11. Lastly, he submits that the investigation of the present case is dishonest and no reliance can be placed on it.
12. Learned D.P.-G., assisted by the learned counsel for the complainant argue that it is a case of single accused. The defence has built substitution which is real phenomena. In our country, innocent persons are dragged as accused, besides the guilt one but pleads that complete substitution is impossible. Aggrieved part cannot let the real culprits go and substitute them with innocent persons. The evidence of two witnesses is available on record, who have no direct malice against the appellant. They further contends that the appellant is named in a promptly lodged F.I.R., in which the role attributed to him is ascribed. They also argued that the weapon of offence is mentioned in the F.I.R. And the motive of assault is also explained therein. They also argues that Wajtakar witnesses are also named in the F.I.R. Is an important document, which is creating a sound basis in the present case; that the prosecution story has been fully established by the witnesses of motive, Wajtakar, recovery of weapon of offence, medical and evidence investigation of the present case. They argue that the discrepancies pointed out by the learned defence counsel are minor in nature and such discrepancies do occur in the statement of the natural witnesses.
They submit that the defence has not been able to shatter the prosecution case. The prosecution has successfully brought home the guilt of the accused and as such conviction and sentence of the appellant be upheld.
13. We have considered the respective contentions of the learned counsel for the parties, and minutely gone through the record.
14. The appellant is only accused, named in the, F.I.R. His role is also ascribed in the F.I.R. Injuries having been inflicted by gun were found on the person of the deceased. This fact gives ample support to the statements of the witnesses of Wajtakar. Deceased is stated to have received injuries in kitchen of house located in the village. The blood-stained earth was secured from the said room. It was sent to the office of the Chemical Examiner and Serologist who reported that the earth is stained with human blood. The Wajtakar witnesses have come to the house of their maternal aunt in connection with the proceedings of Jirga of Peace Committee. Their presence in the house is also natural. Due importance should have given the fact that their names are also mentioned in the promptly lodged F.I.R. The occurrence is stated to have taken place at 6 a.m. The place of occurrence is at distance of 18 kms from the place of incident. The F.I.R. Exh.P.A. Was lodged with the Investigating Officer within two and half hours of alleged incident. In these circumstances, the presence of the witnesses of Wajtakar cannot be disputed. Even otherwise, their statements are consistent with the contents of the F.I.R. They have also supported each other. Their evidence is in line with the medical evidence. The statement of these two witnesses fulfil all the requirements of natural witnesses. Their intrinsic worth is aboveboard. In the above circumstances, we are of the considered view that the prosecution has proved guilt of the appellant regarding the Qatl-i-Amd of the deceased.
15. However, we have noticed that although the motive is narrated in the F.I.R. But the prosecution has not brought on record any document showing existence of any dispute between the deceased and the appellant. This dispute could have been easily proved by the production of Khasra Girdawari and the Jamabandi. Furthermore, P.W.9 Mehboob-ur-Rehman has alleged chaired the proceedings of Jirga Peace Committee. He was signatory of inquest report. He was present when initial investigation was carried out by the Investigating Officer. He never appeared before the Investigating Officer and disclosed the holding of any proceedings of Jirga Peace Committee. He was examined by the Investigating Officer after two months of the alleged occurrence. The prosecution has also named other persons besides him. Other persons also did not appear before the Investigating Officer to prove the event of motive. In these circumstances, we are of the view that the motive set up by the prosecution could not be proved by it. It is shrouded in mystery. It is well-established principle of law that the prosecution is not bound to set up a motive but once it pleads a motive, it becomes its duty to prove it, if it fails to do so, its benefit must be given to the accused.
16. In the above circumstances, the immediate motive leading to the present occurrence is not known.
17. While concluding we are of the view that mitigating circumstances are existing in the present case, on the basis of which, capital sentence of death awarded to the appellant cannot be confirmed. We therefore, reduce his death sentence to life imprisonment but maintain the amount of compensation under section 544-A, Cr.P.C. The appellant shall pay the amount of compensation, which, if realized, shall be paid to legal heirs of the deceased. In default thereof, the appellant will have to suffer six months' S.I. He is also given the benefit of section 382-B, Cr.P.C. The case property shall be disposed of as suggested by the learned A.S.J.
' In the light of what has been stated above, the murder reference is answered in the negative. The appeal filed by the appellant is dismissed with the above modification. Criminal revision filed by the complainant is also dismissed.