' HASNAT AHMAD KHAN, J.---This judgment will dispose of Criminal Appeal No. 258-J of 2002 sent by Muhammad Mushtaq, appellant through the concerned Superintendent Jail. Murder Reference No 503 of 2002 for confirmation or otherwise of death sentence of the appellant shall also be disposed of through this single judgment.
2. The appellant faced the trial in the case F.I.R. No.120 of 2001 registered at Police Station City Daska, District Sialkot, on 12-4-2001 for an offence under section 302, P.P.C. Before the learned Additional Sessions Judge, Daska, District Sialkot, who after conclusion of the trial, vide his judgment, dated 17-6-2002 convicted the appellant under section 302(b), P.P.C. And sentenced him to the rope. He was further ordered to pay an amount of Rs. 50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased. In default of payment thereof, he was ordered to undergo imprisonment for six months.
3. Prosecution's story in brief, as stated by the complainant Saleem Hamayun (P.W.10) in the F.I.R., was to the effect that on 12-4-200.1 at 6-40 p.m., he, along with his son Ali Haider (deceased), his two brothers, namely, Sajjad Ahmed and Nisar Ahmed and Abdul Waheed and was going towards Bilal Masjid to offer Maghrab prayer. When they reached near the mosque, all of a sudden, rifle- toting Musthaq Ahmed-appellant, emerged at the scene and raised a lalkara saying that he had come to teach a lesson to Kh. Ali Haider for insulting him. Ali Haider (deceased) on listening the lalkara, tried to run away, whereupon the appellant chased him and shot at him with his .7mm rifle, which hit him (deceased) on his back. Kh. Ali Haider (deceased) fell down on the ground and succumbed to his injury. The appellant fled from the place of occurrence.
' The motive behind the occurrence is stated to be that a few days before the occurrence, there was an altercation had taken place between the appellant and Kh. Ali Haider (deceased) due to which the said Ali Haider was gunned down by the appellant.
4. After recording the statement (Exh.PF) of the complainant on 12-4-2001, which later culminated into a formal F.I.R., the Investigating Officer Qaisar Mushtaq (P.W.13), went to the place of occurrence, prepared the injury statement (Exh.PJ), the inquest report (Exh.PK,), drafted an application for autopsy (Exh.PB), inspected the place of occurrence, prepared the site plan (Exh.PL) and secured the bloodstained earth from the place of occurrence vide recovery memo. Exh.PG, attested by the witnesses. He also took into possession an empty shell of bullet of .7-MM rifle vide recovery memo. Exh.PH and handed over the dead-body to Qasim Raza, Constable for its postmortem examination. Thereafter, he took into the possession last-worn clothes of the deceased, i.e. Shirt (P.1), Shalwar (P.2) and Vest (P.3) vide recovery memo. Exh.P and recorded the statements of P.Ws. Under section 161, Cr.P.C.
5. The Investigating Officer arrested the appellant on 23-4-2001 and got his physical remand.
During investigation, on 25-4-2001, the appellant led to the recovery of a .7 mm rifle (P..4) and three bullets from his house in presence of Kh. Shahid Naik (P.W.9) and Kh. Rashid P.Ws. All the said articles which were taken into possession vide recovery memo. Exh.PE. A site plan of the place of recovery was also prepared by him, which is Exh.PE/1. He prepared a sealed parcel of rifle, the weapon of offence, and, after completing the investigation, challaned the accused.
6. The appellant was indicted by the trial Court on the charge of murder of Kh. Ali Haider (slain).
During the trial, the prosecution, in support of its case, produced as many as 13 witnesses. P.Ws.1, 3, 4, 5, 6, 7, 8 and 9, being formal witnesses, need not be discussed here. Dr. Muhammad Asif Mughal, who had conducted the postmortem examination on the dead-body of Kh. Ali Haider, 20/22, appeared as P.W.2 and gave the detail of the injuries on the dead-body of the deceased as under:- - "(i) Fire-arm lacerated wound 3/4 x 3/4 c.m. x chest cavity deep, on the back of left chest in middle.
Margins were inverted.
(ii) Fire-arm lacerated wound 4 x 3 c.m. Obliquely on the front of left chest, close to the mid-line.
Margins were everted and a loop of peritoneum was expelled out."
In his opinion, death occurred due to the solo injury Nos. 1 (A & B), which caused direct trauma to the vital organs i.e. Liver, lungs, heart and abdominal virceras, that led to excessive internal and external haemorrhage, shock and ultimately death. The said injury according to the said doctor was sufficient to cause death and was ante-mortem homicidal and by fire-arm.
7. Saleem Hamayun, complainant entered into the witness box as P.Ws.10 and confirmed the contents of complainant (Exh.PF) and furnished ocular account. Abdul Waheed and Nisar Ahmed appeared as P.Ws.11 and 12 respectively and supported the ocular version of the complainant. The latter also deposed about taking into possession bloodstained earth and crime empty (P.5) from the place of the crime. Qaisar Mushtaq, S.-I./Investigating Officer appeared as P.W.13 and furnished the detail of the investigation conducted by him.
8. The learned D.D.A. Gave up Messrs Aataf Raza, Sajjad Ahmad and Kh. Rahid Hamyun, P.Ws., being unnecessary and closed the prosecution's evidence, after tendering the reports of Serologist the Forensic Science Laboratory, the Chemical Examiner, as Exh.PM, Exh.PN and Each. P.O.' respectively, in the evidence.
9. The statement of the appellant Muhammad Mushtaq was recorded under section 342, Cr.P.C. He outrightly denied the charge against him and gave his own version while replying the question No.6 and stated as under:-- "In fact, I was on duty as a gunman outside Bilal Mosque Gulistan Colony, Daska, on the day and time of occurrence i.e. At Maghrib Prayer time Fast wind/storm was blowing and I was cleaning my eyes with one hand. The deceased who was my fast friend, having good relations with me, was standing besides me for gossiping. While cleaning my eyes with one hand, the other hand came on trigger of rifle and the rifle went off accidentally and the fire accidentally hit the deceased, who as a result of which died at the spot. The Rifle was handed over by me to the persons gathered at the spot at that time. I had absolutely no motive or grudge for the incident but the occurrence occurred accidentally. P.Ws. Were not present at the spot. They all are related inter se and have deposed falsely against him."
' The appellant neither opted to lead evidence in his defence nor did he make statement under section 340(2), Cr.P.C. As his own witness. After the conclusion of the trial the learned trial Court convicted and sentenced the appellant as above.
10. Learned counsel for the appellant contends that the prosecution has failed miserably to prove its case beyond the shadow of doubt and that the defence version is more probable than the case of the prosecution, therefore, the appeal filed by the appellant merits acceptance.
11. Conversely, learned Deputy Prosecutor-General has supported the impugned judgment.
12. After hearing the parties and going through the relevant record we have straightaway noticed that it is a case of two versions. According to the prosecution Kh. Ali Haider (deceased) was gunned down by the appellant during the daylight in presence of the eye-witnesses while according to the defence version as narrated by the appellant, while making statement under section 342, Cr.P.C. Ali Haider became prey of the bullet of the appellant's rifle which accidentally went off when both of them, who were close friends of each other, were having a chat. According to the appellant, at the time of unfortunate accident, he was performing the duties of a gunman outside Bilal Mosque . A perusal of the said statement shows that the appellant admitted certain facts i.e. The place and time of occurrence and the receipt of a fire-arm injury by Kh. Ali Haider (deceased) at the hands of the appellant though according to him his gun went off accidentally.
Similarly he did not deny that the rifle which was allegedly recovered from him, belonged to him.
However, he denied the manner in which the police claimed the recovery of the said rifle. So we have to examine both the versions keeping them into juxtaposition to see as to which of the version is nearer to the truth.
13. For doing the said exercise we have examined both the versions in extenso, whereafter, we have gathered that the ocular version in this case has been provided by Salim Humayon. Abdul Wahid and Nisar Ahmad who appeared in witness box as P.W.10, P.W.11 and P.W.12 respectively. Out of the said witnesses P.W.10 and P.W.12., supported the story of motivating factor behind the occurrence.
Salim Humayun (P. W.10) stated that a few days prior to the occurrence his son Kh. Ali Haider (deceased) had quarrelled with the appellant whereupon he (appellant) had threatened Kh. Ali Haider (deceased) with dire consequences. Nisar Ahmad (P.W.12) gave the full detail of the previous occurrence which became the cause for the murder of Kh. Ali Haider (deceased) at the hands of the appellant. According to him in a gathering of the people of the locality the appellant was summoned on the allegation of theft. He further deposed that on that occasion Kh. Ali Haider (deceased) had accused the appellant of theft whereupon both of them quarrelled. Due to the levelling of the said allegation, the appellant, statedly, extended threats to Kh. All Haider (deceased) for dire consequences. The said evidence clearly establishes the motive part of the prosecution's version.
14. As narrated above the ocualr version was provided by three witnesses namely Saleem Hamayoon, Abul Waheed and Nisar Ahtnad. Out of the said three eye-witnesses Abdul Waheed P.W.11 is quite an independent witness. He is neither related to the complainant party nor is he inimical to the appellant. We have further observed that before the murder of Ali Haider, none of the eye-witnesses had any enmity whatsoever with the deceased. Therefore, they had got no motive to falsely implicate the appellant on the charge of murder which entails the sentence of death. Barring minor contradictions, which is quite natural, all the eye-witnesses corroborated each other on the material aspects of the case. Therefore, we have concluded that ocular evidence is trustworthy, confidence-inspiring and straightforward. There is nothing on the record on the basis of which their evidence can be termed as unreliable. All of them were cross-examined at length but they remained steadfast to their stance, therefore, the cross-examiner failed to shatter their evidence.
15. The ocular evidence got full support from the evidence of the doctor who had conducted autopsy on the dead-body of Kh. Ali Haider (deceased). According to him the deceased received a fire-arm injury on the back of left chest in the middle which made exit from the front on left chest.
The prosecution story was further strengthened by the recovery of a rifle which was not even denied by the appellant. Even otherwise the causing of the fire-arm injury to the deceased was not denied by the appellant. According to him, Ali Haider (deceased) received a bullet wound when the rifle, held by the appellant, during the performance of his duties as gunman, went off accidentally.
Whereas, we have concluded that the prosecution's evidence is more trustworthy than that of defence. The defence version does not fit in the scheme of things inasmuch as according to the appellant the deceased received firearm injury when both to them were busy in a chat. Had it been so Kh. Ali Haider (deceased) would have received bullet's injury on his front side but contrarily according to the post-mortem report he received the fire-arm injury on his backside which belies the stance of the appellant. Besides, accordance to the medical evidence there was no blackening, charring, scorching etc. Around the injury received by the deceased which shows that he was shot at from a longer distance.
16. The defence version is liable to be discarded on another reason i.e. During the cross- examination he put forward self-contradictory suggestions to the eye-witnesses. According to his statement during the days of occurrence he was performing the duties as a gunman. While according to the prosecution in those days he was gunman of one Nasir Ahmad Nagra. While cross-examining Salim Humayon (P.W.10) certain suggestions were made by the cross-examiner on behalf of the appellant to show that in the absence of Arshad, gunman of Nasir Ahmad Nagra, the appellant used to perform the duties of the gunman of said Nasir Ahmad Nagra. The tenor of cross-examination further suggests that in the days of occurrence the appellant was residing along with the said Arshad, who according to the appellant was the gunman of said Nasir Ahmad Nagra. Besides, neither the appellant opted to appear in his defence under section 340(2), Cr.P.C.
Nor did he produce any witness in support of his statement. All the said facts make us believe that the E defence version is nothing but a cock and bull story and on the contrary the prosecution proved its case to the hilt beyond any shadow of doubt.
17. At this stage we would like to observe that during the hearing of this appeal we noticed that Dr. Muhammad Asif Mughal, who conducted the autopsy on the dead-body of Ali Hiader (deceased) was not cross-examined by the defence. The evidence of the said doctor was recorded on 14-2- 2002, on which date the learned defence counsel, failed to cross-examine the said doctor and sought an adjournment due to which his cross-examination was reserved. Thereafter, neither the said witness was summoned by the trial Court nor was any request made, at any stage, by the appellant for re-summoning of the said doctor. However, on 10-6-2002 the appellant submitted an application for summoning of Hafiz Muhammad Nasrullah and Haji Ahmad Din-witnesses in his defence. The said application was duly accepted by the learned trial Court vie order, dated 10-6- 2002. However, on the next date of hearing the accused made a statement that he did not want to produce the said witnesses in his. Defence. Initially we were of the view that as after reserving the right of cross-examination of the doctor the appellant was not given an opportunity to cross- examine, therefore, the case should be remanded for re-summoning the said doctor but on a closer examination of this aspect of the case we refrained ourselves from remanding the case on this technical ground because according to us the appellant was not prejudiced in his defence on that account. As a matter of fact neither the fact of death of Kh. Ali Haider (deceased) was denied by him nor was causing of a bullet wound by the rifle of the appellant was controverted by him, rather he took a stand that his rifle went off accidentally hitting Kh. Ali Haider (deceased). The statement made by the appellant under section 342, Cr.P.C. Shows that the evidence provided by the doctor was not challenged/refuted by him. This might be a reason that he did not opt to pray for recalling the said witness for his cross-examination. It cannot be said that during the trial he did not have a proper legal advice as a matter of fact he did submit an application before the learned trial Court to summon some people as defence witnesses but even at that stage no prayer was made by him for re-summoning of the doctor P.W.2. Even otherwise the trial Court was bound only to give an opportunity to the accused to cross-examine the witness produced by the prosecution.
Article 133(1) of the Qanune-e-Shahadat Order, 1984 reads as under:-- "witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined then (if the party calling him so desires) re-examined."
' A plain reading of the said Article wound reveal that the cross-examination can only be conducted if the accused so desires but in this case the accused did not show his desire to cross- examine the said doctor at any stage. It was in these circumstances that we decided to dispose of this appeal as well as the murder reference, on merits, instead of remanding the case to the trial Court, after a period of seven years of the occurrence.
18. To cut it short, the prosecution proved its case to the hilt beyond the shadow of doubt through unimpeachable and trustworthy evidence. Therefore, the conviction awarded to the appellant by the learned trial Court is maintained.
19. Insofar as, the question of confirmation of the death sentence awarded to the appellant is concerned, we have gathered that there are some mitigating and extenuating circumstances to justify the commutation of the death sentence into one of imprisonment for life. To reach the said conclusion we have noticed that there was no deep-rooted enmity between the parties.
Admittedly, during the days of occurrence the appellant was performing the duties of a gunman of one Naseer Nagra. The deceased, who belonged to a well-to-do family, according to the prosecution version had a squabble with the appellant a few days before the occurrence over the allegation of a theft which was levelled against the appellant. According to the statement of Abdul Waheed (P.W.1) an offence of theft was committed in the Mohalla and the appellant, was blamed by the deceased for the said theft. Due to the said allegation both of them had abused each other.
A perusal of the prosecution's version itself shows that the appellant was publicly insulted by Kh. Ali Haider (deceased) who levelled allegation of theft against the appellant. The said fact alone creates a mitigating circumstances in favour of the appellant. Reliance in this regard is placed on the cases of Zar Wali Shah v. The State (1991 SCM R 1590), Aziz Masih alias Kudi v. The State (1991 PCr.LJ 419), Abdul Sattar alias Babu, and others v. The State (1979 PCr.LJ 80), Abdul Karim v. The State (1980 PCr.LJ 108) and Allah Rakha v. The State (1988 PCr.LJ 2311). We have further noticed that the appellant did not repeat the fire. The said fact coupled with other above-mentioned circumstances also has created extenuating circumstance necessitating the commutation of death sentence into one of imprisonment for life. Reliance in this regard is placed on the cases of Muhammad Arshad and 2 others v. The State (PLD 1996 SC 122) and Muhammad Hussain v. The State (2006 PCr.LJ 1463).
20. In this backdrop, we have concluded that in the peculiar circumstances of the case the maximum sentence of death awarded to the appellant for the murder of Kh. Ali Haider (deceased) is quite harsh and the ends of justice would be better served if lesser penalty of imprisonment for life is imposed. Resultantly, we hereby commute the death sentence awarded to the appellant into imprisonment for life. The benefit of section 382-B, Cr.P.C. Shall also be given to the appellant.
However, the sentence of compensation as awarded by the learned trial Court in the terms of judgment, dated 17-6-2002 is maintained. The death sentence is not confirmed. Murder Reference is answered in negative.