' TARIQ SHAMIM, J.--- The instant murder reference sent by the learned Additional Sessions Judge, Kasur for confirmation of sentence of death passed against Shoeb convict shall be answered through this judgment. It is important to add here that there is no appeal filed on behalf of the convict against his conviction before this Court.
2. Mr. Sajjad Ahmad Chawan, the learned Additional Sessions Judge, Kasur by his judgment dated 13-7-2001 convicted Shoeb convict under section 302(b), P.P.C. In case F.I.R. No, 112 dated 2-4-1996 registered at Police Station City Pattoki, District Kasur, and sentenced him to death along with compensation of Rs,50,000 to be paid to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. Or in default, to undergo further 6 months' R.I. By the same judgment, the learned Additional Sessions Judge acquitted Nazeer Ahmad co-accused of the convict while extended him the benefit of doubt.
3. According to the contents of the F.I.R., on 2-4-1996 at about 7-30 p.m. Sheikh Muhammad Ayub, his brother Sheikh Muhammad Qayyum and his maternal-uncle namely Muhammad Idrees were returning to their house on two motorcycles. When they reached near the house of one Muhammad Ishaq situated at Baba Abbas Road, Chowk Madina Masjid, abruptly Shoeb convict and others came in front of the complainant party. The convict fired his carbine and the shot landed on the left knee and thigh of the deceased, due to which he fell on the ground. While the deceased was on the ground, Pervaiz alias Talli fired a shot which hit him on his right shin. The complainant and his maternal-uncle ran towards the deceased to rescue him but they were intercepted by convict Shoeb and Pervaiz accused, who gave blows on the head and face of the complainant with fists and butts of the carbine. The third accused Javed alias Jaidi inflicted a dagger blow on the back of the right side near the last rib of the deceased. A number of persons gathered at the place of occurrence and on seeing them the assailants while firing in the air fled away towards Multan Road on the motorcycle of the deceased. The deceased was taken to the T.H.Q. Hospital, Pattoki, where he died due to the injuries suffered by him in the incident. The motive for the occurrence was stated to be enmity and pending litigation between the father of the convict namely Nazeer and the complainant side.
4. At the trial, the prosecution produced 17 witnesses, out of whom, Muhammad Ayub (P.W.11) and Sheikh Muhammad Idrees (P.W.12) narrated the ocular account. Dr. Arif Mehmood and Dr. Tauqir Ahmad Hashmi appeared as P.W.9 and P.W.10 respectively. Shaukat Ali (P.W.4), Muhammad Din (P.W.5), Muhammad Sadiq A.S-I. (P.W.14), Muhammad Saif Ullah A.S-I. (P.W.16) and Mehmood Ahmad (P.W.17) appeared as recovery witnesses. Muhammad Sadiq A.S-I. (P.W.14) conducted the investigation. Mehmood-ul-Hassan Constable (P.W.13) identified the writing and signatures of late Zulfiqar Ahmad, Inspector/S.H.O. Nasir Siddique (P.W.6) appeared as witness of the conspiracy hatched by Nazeer, father of the convict. Mehmood-ulHassan (P.W.1), Tahir Hussain (P.W.2), Sarwar Joiya (P.W.3), Nazeer Ahmad (P.W.7), Khalid Pervaiz (P.W.8) and Abdul Khaliq (P.W.15) took the witness stand as formal witnesses. After recording of evidence of these witnesses, the learned A.D.A. Tendered in evidence report of Chemical Examiner (Exh.P.S.), report of Serologist (Exh.P.T.) and that of the Forensic Science Laboratory (Exh.P.U.) and closed the case for the prosecution. The statement of convict Shoeb under section 342, Cr.P.C. Was recorded in which he pleaded his innocence.
5. The learned defence counsel after arguing the case at some length contended that since it was a sudden affair and the injury resulting in the death of the deceased was attributed to absconding co-accused Javed alias Jaidi coupled with the fact that the injury attributed to the convict was on a non-vital part of the body of the deceased, it was a case of lesser punishment.
6. The learned Deputy Prosecutor-General has not seriously opposed the prayer made by the learned defence counsel regarding reduction in sentence.
7. We have heard the learned defence counsel as well as the learned Deputy Prosecutor-General for the State and have gone through the record.
8. In the instant case, the occurrence took place at about 7-30 p.m. On 2nd of April, 1996 and the F.I.R. Was lodged at 8-35 p.m. On the same day. The F.I.R. Was lodged with promptitude in which the complainant Sheikh Muhammad Ayub narrated the occurrence as it took place. He stated that while he and the deceased along with Sheikh Muhammad Idrees (P.W.12) were returning home from their godown located at Multan Road, when they reached near Chowk Masjid Madina, the convict and others were already sitting there armed with weapons. On seeing the complainant party, the convict who was armed with a carbine, fired a shot which landed on the left knee and thigh of Sheikh Muhammad Qayyum the deceased, whereafter Pervaiz alias Talli inflicted a fire- arm injury on the right leg of the deceased. The complainant and Idrees P.W. Tried to intervene, whereupon the complainant was injured by the convict and other accused with the butts of their guns. In the meanwhile, Javed alias Jaidi (absconding accused) inflicted a dagger blow on the lower back of the right side of chest of the deceased. Thereafter, the convict and his accomplices while firing in the air managed to escape from the place of occurrence. The deceased was taken to T.H.Q. Hospital, Pattoki by an ambulance, where he succumbed to the injuries. The motive for the occurrence was stated to be previous enmity and pending litigation between the assailants and the complainant party. The statement made by this witness is fully corroborated by Sheikh Muhammad Idrees (P.W.12) in all material particulars. Further, the motive as stated by the complainant was also affirmed by the said witness. The complainant Sheikh Muhammad Ayub (P.W.11) is the brother of the deceased, whereas Sheikh Muhammad Idrees is the maternal-uncle of the deceased. Although, these witnesses are related to the deceased, however mere relationship of the witnesses with the deceased is not a valid ground for discarding or disbelieving their evidence.
After going through the statements of the eye-witnesses recorded by the learned trial Court, we are of the view that the account furnished by them is accurate and creditworthy. Some minor discrepancies have been pointed out by the learned defence counsel in the testimony of the said witnesses, however, the same are of trivial nature, hence of no consequence. The witnesses were subjected to lengthy cross-examination at the trial but nothing favourable could be extracted by the defence. In the instant case, the question of mistaken identity does not arise as the convict and the other accused were well-known to the complainant party. The place where the occurrence took place is well-established by the prosecution through recovery of blood-stained earth and the testimony furnished by the witnesses of recovery including Sarwar Joiya (P.W.3).
9. The motive as set up by the prosecution stands established at the trial through evidence furnished by the complainant (P.W.11) and Muhammad Idrees (P.W.12) who at the trial remained steadfast in their stand as to the reason behind the occurrence. Although, there was longstanding enmity between the parties and litigation was also pending between them but the fact remains that motive is a double-edged sword which cuts both ways. It can furnish ground for committing the offence and can also provide reason for false implication of the accused in the case. However, the learned defence counsel could not extend any convincing reason for false involvement of Shoeb convict in the crime.
10. The medical evidence in this case was furnished by Dr. Arif Mehmood, Medical Officer, R.H.C., Chhanga Manga (P.W.9), who conducted postmortem examination on the dead-body of Sheikh Muhammad Qayyum deceased on 3-4-1996 at 7-30 a.m. According to the doctor, the following injuries were found on the body of the deceased:---
(1) Stab wound size 4-1/2 c.m. x 1 c.m. x abdominal cavity deep at the junction of the lower part of chest and upper part of the abdomen. Backside right side of the lumber area 7 c.m. Right side of mid line. On dissection right kidney, liver were perforated. Abdominal cavity was full of blood.
(2) Multiple pellets wound size .5 c.m. X diameter margins were inverted into bone deep on the left knee and on the lower part of the thigh. Margins were blackened.
(3) Abrasion 2 c.m. x 1-1/2 x skin deep on the left knee frontal part.
(4) Abrasions 2 x 1 c.m. x skin deep on the left knee lower part.
(5) Lacerated wound size .5 c.m. Diameter, margins were inverted into muscle deep on the outer side of the right leg, middle and outer part.
' There was fracture of the left tibia and four metallic pellets were recovered from injury No,2 and one from injury No,5.
' In the opinion of the doctor, the deceased died due to shock and haemorrhage on account of injuries suffered by him, however injury No,1, a stab wound was declared as the direct cause of death. The duration between the receipt of injuries and death was given as 1 hour, whereas the time between death and postmortem was fixed as within 16 hours. From the foregoing, it is apparent that the medical evidence is in consonance with the eye-witness account and is conclusive as to the time of occurrence, locale of injuries and the weapons used in the occurrence.
11. The other piece of evidence relied upon by the prosecution is the recovery of carbine from the convict on 5-3-1997. Although the witnesses of recovery of weapon from the convict i.e. Muhammad Din (P.W.5) and Muhammad Sadiq A.S-I. (P.W.14) have supported the prosecution case at the trial but the fact remains that the weapon was recovered after about one year of the occurrence. Thus, no reliance can be placed on the evidence of recovery of weapon. Even otherwise, recovery is only a supporting piece of evidence which by itself is not sufficient to base conviction.
12. Insofar as acquittal of accused Nazeer, the father of the convict, is concerned, it has been noticed that he was only implicated to the extent of conspiring the offence. At the trial, the prosecution could not produce any credible evidence in support thereof and consequently he was acquitted by the learned trial Court. His acquittal does not, in any way, benefit the convict as his case is distinguishable from the said accused. Even otherwise, while sifting grain from chaff, the learned trial Court rightly concluded that the evidence to the extent of complicity of the convict in the crime is credible, whereas it is not sufficient to sustain conviction to the extent of acquitted co- accused Nazeer.
13. Adverting to the defence plea taken by the convict at the trial of his being falsely implicated on account of enmity with the complainant party, suffice it to say that there is no apparent reason for the complainant and other witnesses to let off the real culprit in order to falsely implicate the convict in the crime.
14. Now taking into consideration the plea taken by the learned counsel for the convict that he deserves a lesser sentence, we have noticed that the injury which resulted in the death of the deceased was caused by Javed alias Jaidi (absconding accused), from whose possession Chhuri, the weapon of offence, was also recovered by the police. The injury ascribed to Shoeb convict on the knee and thigh of the deceased was neither the cause of his death nor on a vital part of his body. Further, the prosecution could not prove recovery of weapon of offence from the convict.
Even otherwise, the facts and circumstances of the case disclosed that the occurrence was in fact a sudden affair.
15. In the given circumstances and in furtherance of safe administration of justice, we are inclined to reduce the sentence awarded to Shoeb convict by the learned trial Court. Consequently, while maintaining the conviction, we reduce his sentence to life imprisonment. The sentence to the extent of compensation and in default 6 months' R.I. Shall remain intact. However, benefit of section 382-B, Cr.P.C. Is extended to the convict. The death sentence is not confirmed and the murder reference is answered in the negative.