Arshad Mahmood, J.--This judgment will dispose of Crl Appeal No, 236/2004 filed by Aftab Ahmad alias Tabi appellant. The appellant was convicted under Section 302(b) PPC by the learned Additional Sessions Judge Hafizabad vide judgment dated 11.02.2004 and sentenced to death by way of Ta'zir and also directed to pay a sum of Rs.100,000/-(rupees one lace only) as compensation to the legal heirs of deceased under Section 544-A Cr.P.C. or in default of payment to further undergo Simple Imprisonment for six months. Murder Reference No, 329/2004 for confirmation of the death sentence sent by the learned trial. Court shall also be answered through this single judgment.
2. The prosecution's case unfolded in FIR Ex.P.D/1 was that on 18.07.2003 the complainant was sitting at about 5.00 p.m at the joint Dera situated in village Kharak Bhattian along with his younger brother Zaheer Abbas deceased, Khalid son of Hayat and Ijaz son of Hayat residents of the same village and meanwhile Aftab Ahmad alias Tabi appellant resident of the same village came at the Dera and sat on the cot besides them. Co-villagers belonging to their family were also present. The appellant who was of bad character started cutting joke with Zaheer Abbas deceased upon which altercation took place between them but they were separated and both deceased and appellant went to their respective homes After 20 minutes upon hearing noise the complainant along with Khalid and Ijaz Ahmad PWs ran towards the residential house of Mian Shahid Hussain and when they reached on the road in front of door of main gate of the house of Mian Shahid Hussain they saw that the appellant had a carbine 12 bore in his hand while deceased after seeing the appellant in order to save his life entered in the house of Mian Shahid Hussain and tried to shut the smaller door of the gate but he could not bolt it upon which appellant on reaching main gate fired on deceased from the front side which hit him on his chest, both sides of face, neck and teeth and after receiving the injuries deceased fell down on the ground. The complainant along with Khalid and Ijaz Ahmad PWs tried to catch hold of appellant but he threatened them that he would kill who tried to come near him`and due to his threats they left aside and appellant ran away while showing off carbine in the air. Thereafter Zaheer Abbas deceased was shifted to hospital but he succumbed to the injuries before reaching the hospital. The motive behind the occurrence was that appellant nourished grudge of the altercation between him and the deceased and he brought a carbine from his house and committed Qatal-e-amd of deceased without any justification. Upon receiving information about the occurrence Muhammad Akram SI/SHO (P.W.11) reached Civil Hospital Hafizabad where Muhammad Afzal complainant (P.W.5) made a statement (Exh.P.D) at 07.30 p.m and formal FIR(Exh.P.D/1) was recorded at 08.30 p.m. He examined the dead body and prepared injury statement Exh.P.G as well as inquest report (Exh.P.I). He also drafted an application for post mortem examination Exh.P.H. then the I.0 reached the place of occurrence and prepared rough site-plan Exh.P.J. He collected blood from the place of occurrence through cotton vide recovery memo Exh.P.D. on the same day after post mortem examination of deceased Zaheer Abbas last worn clothes of the deceased Vest P.1 Shalwar, P.2, were delivered to him which were taken into possession vide recovery memo Exh.P.A. He recorded statements of the witnesses under Section 161 Cr.P.C. Upon instructions of the I.0 and pointation of witnesses Draftsman (P.W.8) prepared site- plan Exh.P.F and Exh. P.F/1. On 27.07.2003 he arrested the appellant and on the same day on his pointation he recovered carbine P.3 and took the same into possession vide Exh.P.C.
3. Post mortem examination was conducted by Dr Nusrat Abbas Sherazi (P.W.7) who found the following injuries on the person of the deceased:-- "1. Multiple fire-arm wounds of entry about 135 in number each about 1/8 x 1/8 cm DNP with inverted edges. In an area of 25 cm x 23 CM. Extending from both cheeks on face to upper 1/3 of both sides of front of chest including front and left side of neck to the right shoulder tranversily."
4. At the commencement of the trial, the learned trial Court framed charge on 28.10.2003 against the appellant to which he pleaded not guilty and claimed trial.
5. During the trial the prosecution produced as many as 11 witnesses in support of its case against the appellant. Muhammad Afzal complainant appeared as PW-5 and narrated the prosecution version as recorded in the FIR. For his corroboration Ijaz Ahmad appeared as PW6. Both these witnesses also narrated the motive part of the occurrence and were subjected to lengthy cross- examination. To prove the various steps taken in investigation and recovery of carbine Muhammad Akram SI/SHO appeared as PW.11.
6. Medical evidence was furnished by Dr Nusrat Abbas Sherazi (P.W.7). In his opinion death was due to excessive hemorrhage and shock as a result of Injury No, 1 which was fatal and sufficient to cause death in ordinary course of nature individually. The injury was ante mortem and inflicted by fire-arm weapons. Probable time that elapsed between injuries and death was about half to one hour and between death post mortem was about six to eight hours.
7. After closing the prosecution evidence, statement of the appellant under Section 342 Cr.P.0 was recorded wherein the appellant denied and controverted all the allegations of fact leveled against him by the prosecution and professed his innocence. However, to the question as to why the case was registered against him and why the PWs had deposed against him he replied as follows:-- "It was a blind murder, complainant and PWs are inimical towards me and they falsely roped me in this case due to suspicion. I am innocent. Complainant and PWs inter see related with each other."
The appellant neither opted to make any statement on oath under Section 340(2) Cr.P.0 nor produced any evidence in defence.
8. At the conclusion of the trial, the learned trial Court convicted and sentenced the appellant as mentioned above. Hence, the present appeal and the connected Murder Reference before this Court.
9. The learned counsel for the appellant has halfheartedly assailed the conviction of the appellant and emphasized that it is a case of lesser punishment. It has been argued that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. He further argued that Muhammad Afzal PW-5 and Ijaz Ahmad PW-6 are closely related to the deceased so much so PW- 5 is the real brother of the complainant and PW-6 being close relative of the deceased are interested witnesses and their statements cannot be considered as gospel truth without independent corroboration. He further argued that there are material contradictions in the statements of PWs regarding the details of the occurrence and recovery of weapon of offence. He further argued that the prosecution has failed to prove the motive hence the accused is entitled to acquittal. He vehemently submitted that the appellant could not have been awarded the capital punishment of death and it was a case of lesser punishment.
10.Conversely learned Deputy Prosecutor General argued that the prosecution had succeeded in proving the guilt of the appellant to the hilt. He further argued that weapon of offence has been recovered from the accused and ocular and medical evidence corroborates each other. He further argued that the prosecution has proved motive part of the story and the defence plea raised by the appellant is not borne out from the record.
11. We have heard learned counsel for the parties, have gone through the record with their able assistance and have also given anxious consideration to the submission made at the bar.
12. It is a case of single accused and real brother of the deceased has saddled appellant with responsibility of his murder. The present occurrence had taken place at 05.00. p.m. Deceased Zaheer Abbas in severe injured condition was shifted to Civil Hospital Hafizabad who succumbed to the injures near the hospital, which fact was corroborated by Dr. Nusrat Abbas Sherazi (P.W.7) according to whom time between injuries and death was half to one hour. Muhammad Akram SI/SHO upon receiving information of the incident reached Civil Hospital before whom Muhammad Afzal complainant (P.W.5) made a statement/ complaint at 07.30 p.m. and accordingly the FIR was recorded at 08.30 p.m. Therefore, it was a promptly lodged FIR and the delay, if any, in reporting the matter to the Police has been adequately explained.
13. Appellant is specifically named in the FIR and specific role of causing fatal fire-arm injury has been assigned to him. Muhammad Afzal (P.W.5) deposed in, his examination in chief that Aftab Ahmad alias Tabi appellant fired at Zaheer Abbas which hit on the chest, face, teeth and neck of Zaheer Abbas and sustaining the injuries Zaheer Abbas deceased fell down on the ground in the Courtyard of the house of Mian Shahid Hussain. Ejaz Ahmad (P.W.6) corroborated the statement of P.W.5. They were subjected to length cross-examination but their testimony remained unshaken on all material points. Ocular account furnished by P.W.5 and P.W.6 was corroborated by Dr. Nusrat Abbas Sherzai (P.W.7) who stated that there was multiple fire-arm wounds of entry about 135 in number in an area of 25 CM x 23 CM, extending from both cheeks on face to upper 1/3 of both sides of front of chest including front and left side of neck to the right shoulder. The medical evidence thus had provided full support to the ocular account inasmuch as the date and time of occurrence, the weapon used and the 1pcal of the injuries stated by the eye-witnesses had all been supported by the medical evidence. Place of occurrence was confirmed by Muhammad Akram SI/SHO (P.W.12) who collected blood from the place of occurrence, which had remained unquestioned by defence. Mere fact that eye-witnesses are related to the deceased ispo facto is not a legitimate reason to discard their version who had no previous ill will animosity or motive to falsely implicate' the appellant. The had satisfactorily established their presence at the crime scene at the relevant time and they can be safely relied upon whose testimony is credible and confidence .inspiring.
Courts have to weigh quality of evidence and not quantity and even in a murder case testimony of a single reliable witness is thought to lease conviction. Furthermore, if ocular account is coherent, consistent, trustworthy and confidence inspiring, minor discrepancies cropping up in prosecution evidence without toughing intrinsic value are of no avail to defence. Here ocular account is up to the required standards and no inherent defect is surfacing in prosecution evidence. Plea of substitution of appellant has no foundation. It is unimaginable that the real brother would spare the real culprit for murder of his brother and involved someone unconcerned. In case of single accused substitution is a rare phenomenon. Reference may be made to Shaukat Javad versus The State" (P.L.J 1993 Cr.C. 232), 'Muhammad Ayyub alias Nikka versus The State" (PLJ 1983 SC 19), 'Mumtaz Khan versus the State" (NLR 1994 Criminal 411), "Siraj Din versus Kala and another" (PLD 1964 SC 26). The prosecution has successfully proved the charge against the appellant under Section 302(b) PPC beyond a reasonable doubt.
14. As far as the question of quantum of. sentence is concerned P.W. 5 and P.W.6 narrated the motive part of the occurrence in their statements. Complainant stated in his cross-examination that he was sitting in the Courtyard of the dera whereas the deceased and the appellant were sitting in the room. He then stated that the jokes were cut by hands and no words were used.
Likewise P.W.6 stated that the appellant was in habit of cutting jokes with others and he had scuffle with many persons of the locality over jokes. However , he could not tell as to what jokes were cut of the day of occurrence between the deceased and the appellant, therefore, we are constrained to hold that motive in this case was shrouded in mystery and appellant is entitled to its benefit. It therefore does not appear safe to award capital punishment to the appellant in this case.
Reference can be made to Nawaz and another versus Ghulam Shabbir and another" (1995 SCM R 1007), Muhammad Bashir Ahmad alias Bashir versus The State" (PLJ 1999 SC 269) 'Muhammad Yaqoob alias Qooba ver,sus The state" (1999 SCM R 1138), "Jehanzeb and another versus The State"
(2003 SCM R 98) and 'Ahmad Khan versus Abdur Rasheed and others" (2008 SCM R 378).
15. It is settled law that normal penalty for offence of murder is death but in appropriate cases where some extenuating circumstances are available, Courts have discretion to award lesser punishment of imprisonment of life. In -the present case it is an, admitted position that there existed no background of any previous enmity or deep-rooted hostility between the appellant and the deceased. It is also significant that the appellant, fired only one shot and did not repeat. All these factors, cumulatively make out a case for mitigation of sentence and lesser sentence of life imprisonment would meet ends of justice. While holding so we are fortified by the dictum of law laid 'down in 'Muhammad Arshad and 2 others versus State" (PLJ 1995 SC 684), 'Muhammad Sharif versus the State" Noor Muhammad versus The State" (PLJ 1999 Cr.C.(Lahore) 626 D.B), 'Muhammad Sharif versus The State" (2004 SCM R 8) "Dilber Masih versus The State" (2006 SCM R 1801) and 'Allah Ditta versus The State" (2007 Y.L.R 811).
16. For what has been discussed above a conclusion is irresistible that the learned trial Court was justified in convicting the appellant for an offence under Section 302(b), PPC and the conviction so recorded by the learned trial Court has appeared to us to be unassailable keeping in view the evidence available on the record. In these circumstances Crl. Appeal No, 236-2004 filed by Aftab Ahmad alias Tabi appellant is dismissed to the extent of his conviction but keeping in view the foregoing mitigating circumstances, appeal is partly allowed to the extent of his sentence and punishment of death is converted into imprisonment for life. The benefit of Section 382-B Cr.P.C. shall be extended to the appellant. The compensation awarded by the learned trial Court to be paid to the legal heirs of deceased Zaheer Abbas is maintained.
17. The murder reference is answered in the NEGATIVE. The death sentence of appellant Aftab Ahmad alias Tabi is Not CONFIRMED.