' MUHAMMAD AHSAN BHOON, J.---This appeal is directed against the judgment dated 19-4-2002 passed by the learned Additional Sessions Judge, Lahore whereby Nazim Hussain appellant was convicted under section 302(b), P.P.C. For causing murder of Abdus Sattar Zafari and sentenced to death. He was also ordered to pay Rs,1,00,000 as compensation to be paid to the legal heirs of the deceased as required under section 544-A, Cr.P.C., or in default thereof to undergo 2 years' imprisonment. He was also convicted under section 337-F(iii), P.P.C. For causing injury to the complainant and sentenced to 3 years' R.I. Benefit of section 382-B, Cr.P.C. Was extended to the appellant in offence under section 337-F(iii), P.P.C.
' Apart from this appeal, the learned trial Court has sent Murder Reference No,651 of 2002 for confirmation of death sentence of the appellant under section 374, Cr.P.C. Both the matters are being disposed of through this judgment.
2. As per F.I.R. (Ex.PA/1), brief facts of the case as narrated by the complainant are that on 31-7-1997 at 6-45 p.m. He along with his brother Abdus Sattar Zafari, Iftikhar Hussain and his uncle Taj Din were sitting on the roof of their house and were conversing when all of a sudden Khadim Hussain while armed with .12-bore gun, Nazim Hussain armed with .12 bore gun, Imdad Hussain I med with .222-bore rifle, Sarfraz armed with .30 bore mouser and Sardar Ali empty handed came there.
Sardar Ali raised lalkara that Zafari and Farman Ali etc be done to death for causing the return of land to Bodi, upon which Nazim Hussain (appellant) fired with his gun pellets of which hit Abdus Sattar alias Zafari, real brother of the complainant on his neck, below the chin and below left eye on nose, who fell down. Then Khadim Hussain (acquitted) fired with his gun which hit on left thumb of the complainant. Imdad Hussain alias Bhola armed with rifle and Sarfraz Ahmad (both acquitted) fired with their respective weapons. On hue and cry raised by the complainant and the eyewitnesses, many people attracted at the place of occurrence while accused fled raising Lalkaras and making firing. Abdus Sattar Zafari injured was removed to the Mayo Hospital but he succumbed to the injuries on the way, whereas the complainant was also injured in the occurrence.
3. The motive behind the occurrence was that 15-20 days prior to the occurrence Sardar Ali, etc. Purchased 10-15 Marlas of land from Muhammad Shabbir alias Bodi.
' The sisters of Bodi approached the complainant party and told that Bodi had sold land without their consent upon which complainant party got returned the land to Bodi.
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. Nazim Hussain 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:- ' "Complainant party is a rich and influential people of the locality having many agricultural land.
Their property also exists in Gulberg Lahore. The complainant party is also politically influential. The complainant was elected as Nazim in the Local Bodies Election, 2001 whereas the accused party is very poor and belongs to the labourer class of the locality. The accused persons are so poor that they could not engage a counsel. The complainant party have deep rooted enmities with many people and they also expected by the accused to favour them in these matters but the accused persons are noble people and avoid such matters. They have also no previous criminal record. The complainant party has objection that why the accused people have relations with enemies whereas they are tenants and Kamies in their land due to this reason they have involved the accused in this murder case.
' The deceased Abdus Sattar was desperate hardened criminal having a long criminal record and he was murdered by his enemies out of the village: Phularwan in the darkness of the night unwitnessed by anybody. We all accused are innocent and have been falsely involved in this case."
' The appellant did not opt to appear as his own witness in disproof of the allegation levelled against him as required under section 340(2), Cr.P.C.
5. The learned trial Court after hearing the parties passed the above said convictions and sentences through the impugned judgment, which have been assailed by the appellant.
6. Learned counsel for the appellant contends that ocular account was furnished by interested and inimical witnesses as Farman Ali complainant (P.W.2) and the other eye-witness Iftikhar Hussain (P.W.3) are real brothers of the deceased. They are not truthful witnesses. They had their enmities and both were record-holders. There is delay of five hours in lodging of F.I.R. All the private witnesses in the case are closely related to one another. The statement of eye-witnesses are contradictory to inter se as well as with medical evidence. The distance of firing is contradictory as Hakim Ali S.-I. (P.W.10) who conducted the investigation, admitted in his statement that a person sitting on the roof could not be seen from the ground because of small wall where the accused were present. The injured Farman Ali (P.W.2) did not suffer any injury on the roof as it was admitted by the aforesaid Investigating Officer in his cross-examination that he was injured by something and it was unnatural that when Abdus Sattar alias Zafari deceased was taken to Mayo Hospital as to why the P W. Was medically examined from the office of Medicolegal Surgeon Punjab and the author of that MLR of injury to P.W.2 did not appear and same was only proved through secondary evidence which was of no value. The empties had not been shown in the site plan. Similarly, recovery of blood-stained earth has also not been shown in the site plan. He has further submitted that the witness of motive Iftikhar Hussain (P.W.3) is an interested and inimical witness. He has also submitted that this is a case wherein there are two reports of Forensic Science Laboratory; one is Ex.PU whith shows that the allegedly recovered .12-bore gun from Nazim Hussain appellant was found in working condition whereas according to report Exh.P.T. The same was found wedded with the gun of appellant and in the second report it has been categorically mentioned that the guns recovered from Khadim Hussain and Imdad Hussain (acquitted accused) were already with the office of Forensic Science Laboratory whereas the allegedly recovered wedded gun with the empties was a gun which was never sent previously to the office of Forensic Science Laboratory, so the padding was made and a new gun was got matched with the empties to fabricate the evidence and he prayed for acquittal of the appellant. Lastly he has contended that firstly it is not a case of capital punishment as the deceased was not a "Masoom-udDam' and he was a man of bad character and desperate. Similarly both the eyewitnesses were also record holders; secondly the ocular account in the case has been furnished by interested and inimical witnesses and thirdly all the accused who were attributed effective fire shots had been acquitted. Similarly the motive being remote one was not available to the appellant against the complainant party.
7. On the other hand, learned DPG has supported the impugned judgment and contended that ocular account was furnished by the eye-witnesses namely Farman Ali complainant (P.W.2) and Iftikhar Hussain (P.W.3) who were the natural witnesses of the occurrence and their presence on the place of occurrence was undisputed because they are real brothers of the deceased. Both the eye-witnesses lived in the same house where the occurrence took place. Moreover, P.W.2 is an injured person and the eye-witnesses have given the detail of occurrence with specific role attributed to the appellant. The F.I.R. Was lodged within four hours, so the same cannot be termed as delayed one and also rules out possibility of concoction. The recoveries were effected and recovered gun of appellant was found wedded with the empties recovered from the spot. The complainant party had no motive to falsely implicate the appellant and prosecution has proved its case beyond any shadow of doubt and prayed for dismissal of the appeal.
8. After hearing the learned counsel for the parties and perusing the evidence placed on record carefully, we have found that both the eye-witnesses are residents of the same house where the occurrence took place. They are real brothers, so their presence on the place of occurrence is natural particularly when they have consistently made statements attributing the effective role played by the appellant in the occurrence whereby he caused effective fatal shot which hit the deceased Abdus Sattar alias Zafari and in consequence thereof he died. Both the aforesaid eye- witnesses were subjected to lengthy cross examination but defence was unable to fetch anything in its favour. Another important aspect of the case is that Farman Ali complainant (P.W.2) who is brother of the deceased, admitted this fact that they had no enmity with the appellant or his family prior to this occurrence, so the ocular account furnished by both the eye witnesses is confidence inspiring and their testimony cannot be discarded only on the ground that they are real brother of the deceased because their presence ii the house at the evening time was quit natural.
9. Medical evidence was furnished by Dr. Ijaz Ahmad (P.W.8) who conducted the post-mortem examination of Abdus Sattar alias Zafari deceased and found following injuries on his body:-
1. A wound of entry 1 x.7 c.m. On the right side of nose near the base 1.5 c.m. From medial angle of left eye.
On Exploration.
' The projectile entered through injury No,1, it damaged the left eye and nose soft tissue and fractured the medial wall of left orbit. Then it entered in cranial cavity where it lacerated both cerebral hemisphere. A bullet recovered from posterior most part of occipital lobe of brain. There was about 200 ml subdural hematoma. Both interior cranial fossae were fractured. A fracture line also extended in the right temporal bone is squamous part. A fracture line also extended in left midline cranial fossae.
2-A.A wound of entry 1.8 x 1 c.m. On right side of neck 4 c.m. From anterior midline and 5 c.m. Below right angle of jaw.
2-B. A wound of exit 1.5 x 1 c.m. On right side of neck 8 c.m. From right ear lobule at 8 '0' clock position and 7cm, from Injury No,2-A."
' The injury No,1 was on the right side of nose near the base whereas the injury 2-A was another entry wound on right side of neck. As per the ocular account furnished by two eye-witnesses the only fire which hit the deceased was fired at by the appellant which caused the death of Abdus Sattar alias Zafari deceased so the medical evidence is quite in line with the ocular account and furnishes corroboration to the same.
10. As far as the contention of the learned counsel for the appellant, that a bullet was recovered from the occipital lobe of the brain and it was not a pellet injury, is of no avail because there is no mention anywhere that the said bullet was fired from a pistol or rifle rather the same was a deformed metallic bullet and if the injury suffered was a result of any pistol or rifle then there was no possibility of two injuries on two different places.
11. As far as the medical examination of injured P.W.3 is concerned, it is very unnatural that when he straight went to Mayo Hospital along with the dead body then as to why he was not medically examined in Mayo Hospital and even it is admitted by Hakim Ali S.-I. (P.W.10) who is scribe of the F.I.R., that P.W.2 had bendage on his hand when he made a statement for lodging the F.I.R. And similarly P.W.10 also admitted as correct that he had mentioned in Zimni No,1 that the complainant was injured by something. The investigating officer (P.W.10) further admitted this fact that the complainant had signed with his right hand which was having bandage whereas according to Medicolegal Report Exh.PQ the injured P.W.2/complainant was medically examined by Dr. Asif Nazir at 10-50 P.M. On 31-7-1997 which was approved by Zulfiqar Ahmad dispenser (P.W.11) as the author of Medicolegal Report Exh.P.Q. Had left for abroad and all these facts cast serious doubt about the injury suffered by P.W.2 in the present occurrence but the principle of sifting of grain would be applicable.
12. As far as the recovery of gun is concerned, the recovery of .12 bore gun P.5 was effected at the behest of Nazim Hussain appellant. Same was attested by Muhammad Shabbir (P.W.6) and Hakim Ali S.-I (P.W.10). P.W.6 in his statement admitted this fact that the accused was arrested on the very next day of occurrence, i.e, on 1-8-1997, whereas according to the prosecution case as per statement of Hakim Ali S.-I./investigating officer (P.W.10) he arrested Nazim Hussain appellant and his co-accused Khadim Hussain on 12-8-1997 and on the same day the appellant got effected the recovery of 12-bore gun whereas as per report of Forensic Science Laboratory the empties were sent to the office of Forensic Science Laboratory on 8-8-1997 whereas 12-bore gun was sent on 2- 9-1997 after the arrest of the appellant. Farman Ali (P.W.2) who is complainant of the case admitted this fact in the following words:-- ' "The accused were arrested on the next day of occurrence. I had seen the accused in handcuffs at the police station with the Thanidar on the next day of occurrence."
' This fact shows that all the proceedings qua the report of Forensic Science Laboratory were initiated after the arrest of the appellant. Another important aspect of the case is that in this case there are two different reports of Forensic Science Laboratory (Exh.P.T. And Exh.PU). Exh.P.U. Shows that the gun was only found in working condition whereas Exh.P.T. Shows that gun was found wedded with crime empties. In report Ex. PT it has been specifically mentioned about, the already sent rifle and .12 bore gun of acquitted accused Khadim Hussain and Imdad Hussain but as far as the recovery of gun from the appellant is concerned, there is no mention of any earlier reference.
Similarly, in Column No,23 of inquest report Exh.P.C. There is no mention of anything as to whether anything was recovered from the spot. So in this view of the matter, we disbelieve the recovery of gun report of FSL from the appellant for the purpose of corroboration.
13. As far as the motive is concerned, it was the case of prosecution that 15-20 days prior to the occurrence Safdar Ali etc. Purchased 10-15 Marlas of land from Muhammad Shabbir alias Bodi on which the sisters of Bodi came to the complainant and stated that the same was against their wishes. Thus the complainant got the land returned from Safdar Ali to Bodi and that was the reason of the occurrence. In our view, the motive is far fetched because the accused party had no direct transaction with the complainant party and that is why the defence as well as the prosecution itself admitted that there was no previous enmity between the parties and it seems that both the parties have tried to conceal the actual cause of occurrence whereby the matter brew up and the occurrence took place. Admittedly the complainant was a Nazim of the area and from the evidence available on record it also apparent that there were so many cases registered against the deceased as well as Farman Ali complainant (P.W.2) and Iftikhar Hussain (P.W.3). So nobody would dare to come near to them on a petty dispute. In our view, the motive stood shrouded in mystery and same fact has been cancealed, so the motive is not believable.
' The defence taken by the appellant was that the complainant was an elected Nazim of the area and he had so many deep-rooted enmities with many people whereas the accused were tenants and "Kammies" but still they were noble people and had relations with the enemies of the complainant party which was not liked by the complainant party and for that reason the appellant was falsely involved. He also produced Ex.DE and Ex.DF, a list of 19 criminal cases registered against Abdus Sattar alias Zafari deceased and Ex. PG, a list of seven criminal cases registered against Farman Ali complainant (P.W.2) and a list of seven criminal cases (Exh.PH) registered against Iftikhar Hussain (P.W.3) the second eye-witness. As far as the story of defence that the deceased was done to death by some unknown culprits is concerned, that does not appeal to reason that as to why the close relatives who are natural witnesses would let off the real culprits and substitute the appellant who according to his own, is not an influential person and was a tenant and a Kammi. Admittedly the occurrence in this case took place in the house of the deceased and appellant and his co-accused were also residents of the same village and even according to site plan the house of acquitted accused Khadim Hussain was adjacent to the place of occurrence where at the time of incident the accused were present. As far as the registration of cases against the deceased and both the eye-witnesses who are real brothers, of the deceased are concerned that is admitted position because apart from the lists referred above as Exh.D.E. To Exh. D.H, the other documents Exh.D.C., D.E. And D.J. To D.X. Show that they were involved in so many cases including murder, Arms Ordinance, dacoity and other hurt cases etc. -
14. After above discussion, we have found that the prosecution has proved its case beyond any shadow of doubt through the evidence of ocular account and medical evidence, so we maintain the conviction under section 302(b), P.P.C. As far as the sentence is concerned, there are following mitigating circumstances, the benefit of which must go to the appellant:-
1. Admittedly the deceased was challaned in 19 criminal cases including murder, attempt to murder, Haraba, narcotics, dacoity, Arms Ordinance as is evident from Exh.D.E. And D.F. Reliance is placed on PLD 2004 SC 150, where their lordships of the Honourable Supreme Court of Pakistan were pleased to hold as under:-- ' " From the above resume, it transpires that the deceased was man of questionable character which in our opinion is a sufficient extenuating circumstance to reduce the sentence of the appellant from death to imprisonment for life.
' Accordingly while maintaining the conviction, we reduce the sentence of appellant from death to imprisonment for life."
2. The actual cause/motive of occurrence stood shrouded in mystery.
3. The ocular account was furnished by the witnesses who were also challaned in different criminal cases of heinous nature as is evident from Exh.D.G. And the other documents produced in defence.
4. The occurrence took place on 31-7-1997 and statement under section 342, Cr.P.C. Of Nazim Hussain appellant was recorded by the learned trial court on 1-4-2002, meaning thereby that at the time of occurrence the appellant was a young lad of about 18-1/2 years.
5. The recovery in the case stood disbelieved.
15. Keeping in view the aforementioned circumstances, while maintaining conviction under section 302(b), P.P.C., we convert the sentence of death to imprisonment for life with benefit of section 382, Cr.P.C. However, the sentence of compensation shall remain intact. As far as conviction and, sentence of the appellant awarded under * section 337-F(ii), P.P.C. Is concerned, the same is set aside.
' With the above modification, this appeal is disposed of.