' MUHAMMAD AHSAN BHOON, J.---This appeal is directed against the judgment, dated 8-6-2002 passed by the learned Addl. Sessions Judge, Pasrur District Sialkot whereby Muhammad Younas alias Joona appellant was convicted under section 302(a), P.P.C, and sentenced to death. He was also ordered to pay Rs,50,000 as compensation to be paid to the legal heirs of the deceased as required under section 544-A, Cr.P.C, in default whereof to undergo 6 months' S.I. Benefit of section 382-B, Cr.P.C. Was extended to the appellant provided his sentence of death would be altered by the High Court. The learned trial Court has sent Murder Reference No,521/2002 for confirmation of death of the convict or otherwise. Both the matters are being disposed of through this judgment.
2. As per F.I.R. (Exh.PA/1), brief facts of the case as narrated by the complainant are that he had goats to whom he used to take for grazing early in the morning and come home in the evening. His son named Khalid Hussain aged 26 years was a mason by profession. On the morning of fateful day, his son went to Village Thatha Baawa for working and he (complainant) went out for grazing goats. At sunset time, the complainant after grazing goats was coming back to his village, when he reached near the "Maktab School" at Dhoda Road, Mst. Robina Bibi and Mst. Nusrat Bano his daughters joined him who were also coming back after taking firewood. He along with his daughters was coming back to village. Meanwhile, his son Khalid Hussain also joined them while he was on a bicycle. And when his son went a little ahead of them, Younas alias Joona son of Bashir caste Jolaha armed with .12-bore doubt barrel gun, Muhammad Boota son of Farid caste Arain armed with .12-bore double barrel gun and Khalid son of SuLeman caste Rajput armed with pistol, all residents of Dhariwal raised lalkaras on seeing Khalid Hussain, Younas alias Joona (appellant) fired with his .12-bore double barrel gun which did not hit Khalid Hussain fortunately. His son, after leaving his bicycle ran away to western side of "Maktab School". All the three accused chased his son and when his son reached near "Maktab School", Younas alias Joona fired from his .12-bore double barrel gun which hit him on back left side of his chest. His son seriously injured and fell on the ground. His daughter raised hue and cry and accused fled from the spot while making firing.
The complainant removed the injured to the Civil Hospital, Pasrur where his son succumbed to the injury. Besides him, the occurrence was witnessed by his daughters Mst. Robina Bibi and Mst. Nusrat Bibi.
3. The motive behind the occurrence was that Younas alias Joona was habitual thief and prior to this occurrence Younas alias Joona committed a theft of he-goat of Arif Chungar. The complainant had called him as thief, upon which Younas alias Joona had beaten the complainant prior to this occurrence and due to this revenge Younas alias Joona had committed the murder of Khalid Hussain son of complainant by sharing the common intention along with his co-accused. It is further alleged by the complainant that Younas alias Joona had been residing with Abdul Haq son of Abdul Majeed accused and Abdul Haq accused had made Younas alias Joona a rascal.
Younas alias Joona along with his co-accused has committed the murder of Khalid Hussain on the abetment of Abdul Haq accused. The complainant made request for legal proceedings.
4. After due investigation report under section 173, Cr.P.C. Was submitted in the learned trial Court.
Charge was framed against the appellant and acquitted accused who denied the charge, pleaded not guilty and claimed trial. The prosecution produced its evidence. The accused were examined under section 342, Cr.P.C. Muhammad Younas appellant/accused in answer to question as to why this case was against him and why the P.Ws. Deposed against him stated as under:-- ' "I am innocent person in this case. In fact I was a witness in murder case registered by Abdul Haq accused (P.O.) against Muhammad Khan etc. r/o village chak Ishaq who is an influential person of locality and due to this enmity, the complainant involved me in this case with the connivance of said Muhammad Khan. I appeared before the D.S.P., Crime Branch Range, Gujranwala in that murder case as prosecution witness against Muhammad Khan etc. Prior to occurrence."
' The appellant opted to appear as his own witness in disproof of the allegation levelled against him as required under section 340 (2), Cr.P.C. However, he did not do so but he produced Muhammad Shaukat Hayat D.S.P. (DW.1) in his defence.
' The learned trial Court after hearing the parties passed the above said conviction and sentence through the impugned judgment, which has been assailed by the appellant.
5. Learned counsel for the appellant contends that the P.Ws. Were interested witnesses and no independent witness was produced by the prosecution particularly when the occurrence took place on the road; no empty was recovered from the place of occurrence while accused had allegedly been making aerial firing; the bicycle of the deceased was not recovered and in fact the deceased was done to death by unknown robbers as it had come in evidence that many robberies were committed on Dodha Road which was the place of occurrence. He has further argued the recovery of .12-bore gun is doubtful as no empty was recovered from the spot and no public witness was associated with the recovery proceedings; the prosecution version was found false to the extent of co-accused Khalid Mehmood and Muhammad Boota who were acquitted by giving the benefit of doubt.
6. Learned D.P.G. Has supported the impugned judgment passed by the learned trial Court and argues that the prosecution has proved its case against the appellant beyond any shadow of doubt and prayed for dismissal of the appeal.
8. We have heard the learned counsel for the parties and perused the evidence carefully.
9. The ocular account in this case was furnished by Talib Hussain (P.W.1 ) Mst. Nusrat Bano (P.W.2) and Mst. Robina Bibi (P.W.3). Talib Hussain (P.W.1) is an eyewitness as well as complainant of the case and he is also father of Khalid Hussain deceased. He while appearing before the learned trial Court corroborated the story of F.I.R. Exh.PA/1 lodged on the basis of complaint Exh.PA. He has given a very natural story that he saw the occurrence when he was coming back after grazing goats and in the way his two daughters who are the eye-witnesses and appeared as P.W.2 and P.W.3 joined him. Meanwhile, his son Khalid Hussain (deceased) came on a bicycle and waylaid by the accused and appellant Muhammad Younas alias Joona fired first shot to his son but he was saved fortunately. Then his son ran to save his life, appellant Younas alias Joona fired from back side hitting on back side of Khalid Hussain deceased. The above narration was supported by Mst. Nusrat Bano (P.W.2) and Mst. Robina Bibi (P.W.3) who are real sisters of the deceased and daughters of the complainant. Their testimony cannot be termed as interested or inimical when they had no ill will or motive for false implication of the appellant particularly they would not let off the real culprits who was murderer of only son of the complainant and brother of aforesaid P.W.2 and P.W.3. We may observe here that substitution is a rare phenomenon when the identity of the culprit is mistaken but the instant occurrence took place when the sum set was not complete so there was no possibility of any mistaken identity. The ocular account furnished by the eye-witnesses is also supported by the medical evidence by the eye-witnesses is B also supported by the medical evidence as Dr. Gul Nawaz (P.W.7) conducted postmortem examination who found single fire-arm injury on the back side of the chest of Khalid Hussain deceased and pellets were also recovered from the interior chest wall under the skin. The place of occurrence in this case is not disputed one and the same is further corroborated by the recovery of blood stained earth from the place of occurrence. Same was found stained with human blood as proved through the report of Chemical Examiner and report of Serologist Exh.PO and Exh.PP respectively.
10. The motive alleged by the prosecution was that the accused-appellant was involved in theft case and he had also stolen he-goat of one Arif Changer and complainant had called the accused appellant thief upon which he gave beating to the complainant and due to that reason an enmity was going on, between the complainant and the accused but in the instant case the prosecution was unable to bring on record any type of involvement of accused in any theft case. It is also worth note that when the appellant had grudge against the complainant as to why he instead of firing at the complainant killed his son. It can, therefore, be safely held that the prosecution has failed to establish the story of motive.
11. As far as the recovery of gun is concerned, same was found in working order as reflected from the report of Forensic Science Laboratory (Exh.PQ) but no empty was recovered from the spot, so the gun recovered was of no consequence particularly when no respectables of the locality joined with the recovery proceedings nor the Investigating Officer summoned Lambardar or any other person from the locality and Khadim Hussain constable (P.W.9) who appeared to prove the recovery of gun was even unable to depose about the description of the place from where the same was recovered, so we disbelieve the recovery of weapon of offence also.
12. So far as case of acquitted co-accused is concerned, they were not attributed effective role by the eyewitnesses and were also declared innocent by the police, so acquittal of co-accused will not give any premium to the appellant as his case is altogether is no different footing.
13. In view of the above discussion, we find that the prosecution has successfully proved its case against the appellant through ocular as well as medical evidence. However, so far as quantum of sentence is concerned, we find that the motive in the case stood shrouded in mystery, similarly recovery has been found of no consequence and ocular account has been furnished by the close relatives of the deceased, for the safe administration of justice and as an abundant caution we convert the death sentence into life imprisonment but the amount of compensation is maintained.
Benefit of section 382-B, Cr.P.C. Is also granted to the appellant.
' With the above modification, this appeal is dismissed and Murder Reference No,521 of 2002 is answered in the negative.