' MIAN MUHAMMAD NAJAM- UZ-ZAMAN, J.-Appellant Shahzad alias Shada was tried for the murder of one Muhammad Saleem in case F.I.R. No,294 of 1997, dated 9-6-1997 registered under section 302, P.P.C. At Police Station North Cantt. Lahore by the Additional Sessions Judge, Lahore, who vide judgment, dated 19-1-2000 convicted the appellant under section 302(a), P.P.C. And sentenced him to death as Taazir as well as to pay compensation amounting to Rs,80,000 to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default whereof to undergo six months' R.I.
2. Calling in question the impugned judgment appellant filed Crl. Appeal No,57 of 2000 while trial Court has made a reference (M.R. No,68 of 2000) under section 374, Cr.P.C. Seeking confirmation of sentence of death awarded to the appellant. Both these matters are being disposed of together by this judgment.
3. This occurrence took place in front of the shop of Butt Sewing Machine Al-Faisal Town, Lahore about three kilometers towards East from the Police Station North Cantt. Lahore and F.I.R. Exh.P.A./1 was entered upon the statement of Farzand Ali (father of Muhammad Saleem deceased).
4. The facts of the case are that on 8-6-1997 at about 8-15 p.m. Haji Muhammad Amil (P.W.5) informed Farzand Ali (Complainant) when he was present at his house that shahzad alias Shada (appellant) had caused Chhurri blows to his son namely Muhammad saleem on the chest and abdomen and he had been removed to Mayo Hospital Lahore. On this information complainant reached at the mayo hospital but before his arrival Muhammad Saleem succumbed to the injuries.
Statdely his occurence was also witnessed by Muhammad Arshad along with the said haji Muhammad Amil.
5. Motive for the occurrence as narrated in the F.I.R is that appellants and deceased had some money dispute over the supply of milk and four days prior to the occurrence they had also quarrelled over the same issue.
6. On receiving the information about the said occurrence Bootay Khan S-I. P.W.Ll reached at the Emergency Ward, Mayo Hospital, Lahore where he met Farzand Ali who made statement Exh.P.A.
And on the basis of die same formal F.I.R. Exh.P.A./l was registered at the police station. After recording the statement police officer examined the dead body, prepared necessary documents and sent the dead body to the mortuary for post-mortem examination. The Investigating Officer also visited the spot at 1-00 a.m., prepared rough site plan Exh.P.H. And recorded the statements of witnesses under section 161, Cr.P.C. As well as collected blood-stained earth from the spot vide memo. Exh.P.D. After the post-mortem examination last worn clothes of the deceased were also produced before the Investigating Officer which were taken into possession vide memo. Exh.P.C.
During die investigation the Police Officer also got prepared scaled site plan Exhs.P.B, and P.B./l through Hameed-ud-Din Draftsman P.W.2. On 14-6-1997 appellant was arrested and on 19-6-1997 he led to the recovery of bloodstained Chhurri P.4 which was taken into possession vide memo.
Exh.P.K. The Investigating Officer also prepared site plan of the place of recovery i.e, Exh.P.L. And finally after complying with legal formalities, submitted challan before the trial Court where prosecution produced twelve witnesses to prove the charge against the appellant.
7. Medico-legal report Exh.P.F. Of Muhammad Saleem (deceased) when he was still alive, was prepared by Dr. Bilal Ahmad Par P.W.9 and after his death post mortem examination was conducted by Dr. Aamir Bashir P.W.8. The ocular account in this case was narrated by Haji Muhammad Amil P.W.5 and Muhammad Arshad P.W.6. The complainant Farzand Ali who was not the eye-witness of the occurrence appeared before the Court as P.W.l. The rest of the witnesses are formal in nature.
' Learned D.D.A. Tendered in evidence reports of Chemical Examiner Exh.P.N., P.O. And that of Serologist Exh.P.Q, P.R. And closed the prosecution case.
8. Learned trial Court also examined the appellant under section 342, Cr.P.C. Who while denying the charges pleaded innocence and deposed that he had been involved in this case falsely on the basis of suspicion. Appellant neither made statement under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
9. Trial Court after appraisal of evidence available on record, vide judgment dated 19-1-2000 convicted and sentenced the appellant as narrated earlier.
10. Learned counsel for the appellant while challenging the legality of the impugned judgment, argued that both the eye-witnesses who had deposed before the trial Court were not present at the spot. They being close relative and neighbour of the complainant party were introduced during the investigation just to strengthen the prosecution case; that the ocular account stands contradicted by the medical evidence; the recovery evidence relied upon by the prosecution was tailored during the investigation and that the motive for this occurrence was never proved before the trial Court. It was lastly argued that in the circumstances, trial Court had erroneously convicted and sentenced the appellant. Conversely, learned counsel for die State while supporting the impugned judgment vehemently opposed the contentions raised by the learned counsel for the appellant.
11. The entire case of the prosecution is in the form of ocular account narrated by Farzand Ali P.W.l (father of the deceased), Haji Muhammad Amil P.W.5 and Muhammad Arshad P.W.6, as well as motive for the commission of this offence, the recovery of crime weapon at the instance of the appellant and the medicolegal report.
12. This occurrence took place on a thoroughfare (main road), in front of the shop of Butt Sewing Machine, Alfaisal Town, Lahore Cantt. Which is frequently used by the residents of the locality. Both the eye-witnesses namely Haji Muhammad Amil P.W.5 and Muhammad Arshad P.W.6 were the residents of the same locality i.e, Al-faisal Town, in Block D. Muhammad Amil P.W.5 was passing by on his car when he was attracted by a mob which had gathered at the spot because of the fight between the appellant and the deceased. Within his view appellant had caused several Chhurri blows to the deceased. Muhammad Arshad P.W.6 was present in the shop of the sewing machine for the purchase of oil and on hearing the commotion he came at the spot and saw the occurrence. Immediately after the occurrence Muhammad Arshad P.W.6 took Muhammad Saleem to the hospital where he was examined by Dr. Bilal Ahmad Dar P.W.9 at 9-14 (i.e, within half an hour of the occurrence). The name of this witness also finds mention in the medico-legal report Exh.P.F.
Though both the witnesses were present near the place of occurrence by chance but being die residents of the locality their presence at the relevant time seems to be natural and plausible. Both of them while supporting the prosecution case unanimously deposed that it was appellant who had caused several Chhurri blows to the deceased as a result of which he died later on in the hospital. These witnesses were also subjected to lengthy and searching cross-examination but we have observed that both of them remained steadfast and there is nothing in their statement to doubt their credibility or to say that they had any malice or ill will against the appellant to falsely involve him in this case. The ocular account also finds support/ corroboration from the medicolegal reports. The location, duration and nature of injuries on the person of deceased as narrated by the eye-witnesses stand affirmed by this piece of evidence. Learned counsel for the appellant during the arguments while challenging the authenticity of the ocular account highlighted certain discrepancies in the statements of eye-witnesses but we are of the view that these discrepancies are very minor in nature and in the circumstances of this case are negligible especially when the witnesses had deposed before' the trial Court after two years of the occurrence. We find force in the arguments of learned counsel that prosecution had failed to prove the motive part of its case because none of the witnesses had deposed in this regard before the trial Court. The evidence of recovery of crime weapon at the instance of appellant is also doubtful.
A careful analysis of the record shows that this piece of evidence was manufactured during the investigation. The recovery memos. Exh.P.K. Prepared by Bootay Khan S-I. P.W.Ll reveals that during the investigation appellant led to the recovery of Chhurri but on the other hand the site plan of the place of recovery Exh.P.L. Shows that after cutting the word scissors the word Chhurri has been inserted. Similarly another site plan for the same recovery i.e, Exh.D.B., clearly shows that weapon of recovery is scissors. It is strange the Investigating Officer while deposing before the trial Court had admitted that Exh.D.B. Is the photo copy of Exh.P.L. Which is in his handwriting. Similarly two independent witnesses from the public who had also signed the recovery memo. Exh.P.K. Were not produced and were given up as having been won over. The non-production of said witness in the circumstances of this case is indicative of the fact that they were not ready to support the prosecution case.
' No doubt the prosecution has failed to establish its case with regard to the motive and recovery of crime weapon at the instance of appellant but the ocular account which rings true inspire confidence, finds support from the medical evidence and is persuasive in nature is sufficient to be relied upon even in the absence of any corroborative piece of evidence to uphold the conviction of the appellant,
13. As far the quantum of sentence of the appellant is concerned, after consideration and deliberation we are of the view that it is not a case for the award of capital sentence of death because the genesis of the occurrence is shrouded in mystery. Admittedly, both the witnesses when reached at the spot the appellant was causing injuries to the deceased. None of them was in a position to explain as to what had happened immediately before the occurrence and who was the aggressor. Similarly the motive as observed above was never proved before the trial Court nor the recovery evidence relied upon by the prosecution is of any legal value. In these circumstances we feel inclined to take a lenient view qua the quantum of sentence of the appellant. Accordingly while dismissing the appeal and upholding the conviction, sentence of the appellant is altered to imprisonment for life with the benefit of section 382-B, Cr.P.C. However, the appellant shall pay compensation to the legal heirs of the deceased as fixed by the trial Court.
' Before parting with the judgment we would like to clarify that learned trial Court while passing the impugned judgment has erroneously convicted and sentenced the appellant under section 302(a), P.P.C. As Taazir. To this extent the said judgment also stands corrected and it is held that appellant is convicted and sentenced under section 302(b), P.P.C. As Taazir.
' Death sentence is not confirmed and the murder reference is answered in the negative.