' SHAHJI RAHMAN KHAN, J.---Complainant Hasib Gul on 23-12-2001 at 0930 hours produced the dead body of his deceased brother, Zar Gul, before the local Police at Police Station, Lahore and stated that on the day of occurrence, he in the company of his brother, Zar Gul, nephews Siyar Khan son of Israr and Nisar son of Zar Gul, was going towards their fields and when they reached near the place known as Dheri Shakh', Dilbar, appellant herein and Iftikhar, the absconding co- accused (co-villager), already present there, on seeing them, started firing at them with their respective weapons with the intention to commit their murders. Zar Gul, deceased, on being hit succumbed to his injuries while the remaining P.Ws., escaped un-hurt. The motive for the occurrence was stated to be an altercation over the thoroughfare one month prior to the occurrence. Both the assailants after accomplishing their agenda bolt away from the spot. The incident was reported and pursuant thereto a case under sections 302/324/34, P.P.C., was registered against them, vide F.I.R. .No, 776, dated 23-12-2001, Police Station Lahore District Swabi.
2. On being charged, when the appellant pleaded innocence, the prosecution to prove its case examined as many as 15 P. Ws. P.W.1., Syed Zahid Shah, S.-I., P.W.2, Ijaz Ali, FC and P.W.3., Ameerullah Khan, S.-I., are the Police officials who fulfilled the usual formalities, P.W.4., Pazeer Gul, is the co- villager of the deceased who identified the dead body of deceased, P.W.5., Bakht Bahadur Khan, A.S.-I. Who obtained the transit custody of the appellant and shifted him from District Nowshera to District Swabi, P.W.6., Intizar Ali, F.C. Who is marginal witness to the recovery memo. Exh.P.W.6/1, P.W.7, Doctor Muhammad Anwar, ADMO, who conducted the post-mortem examination on the dead body of the deceased, P.W.8, Fazal Manan, IHC, who is witness to the recovery memo.
Exh.P.W.8/1, P.W.9., Derwez Khan, FC, under whose supervision the dead body of the deceased was sent to the H-spital for P.M. Examination, P.W.10, Gul Sher, IHC, who is witness to the pointation memo. Exh.P.W.10/1, P.W.11, Jamshaid Khan, H.C., who produced Klashnikov bearing No,56 X 0043396 along with bandolier with three chargers containing 76 live rounds of 7.62, P.W.12., Salar Khan, S.-I., who investigated the case and handed over the case file to the S.H.O. For submission of challan, P.W.13, Hasib Gul, complainant and P.W.14, Siyar Khan who furnished the ocular account of the occurrence and P. W.15, Muhammad Zaman Khan, who recorded the F.I.R., Exh.PA, prepared the injury sheet Exh.P.W.7/2, inquest report Exh.P.W.7/4, prepared site-plan Exh.PB, prepared recovery memo. Exh.P.W.6/1, vide which he took into possession blood stained garments of the deceased consisting of Qamees, P-1, Shalwar gray colour P.2, Sweater shaded light red P.3 and a waiste coat P.4 and sent the same to the FSL, vide Exh.P.W.4/2 and recorded the statements of P.Ws., under section 161, Cr.P.C.
3. After the arrest of the appellant and completion of the investigation, he was sent for trial to the learned Additional Sessions Judge, Lahore District Swabi for trial, who on conclusion of trial found him guilty of the charge and convicted and sentenced him to death under section 302(b) of the P.P.C. As tazie and to pay Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to undergo further six months' S.I. The appellant was also found guilty of the charge under section 324/34, P.P.C. For attempting at the life of Hasib Gul and was also convicted and sentenced to 3 years' R.I. With a fine of Rs,5000 or in default to suffer further S.I. For two months. The appellant was also directed to pay an amount of Rs,10,000 as compensation under section 544-A, Cr.P.C. To Hasib Gul or in default in payment of compensation, he is to suffer further S.I. For three months. Likewise the appellant was also found guilty under section 324/34, P.P.C. For attempt r; at the life of Siyar Khan and thus the appellant was also convicted and sentenced to 3 years' R.I. With a fine of Rs,5000 or in default to suffer further S.I. For two months. The appellant was also directed to pay an amount of Rs,10,000 as compensation under section 544-A, Cr.P.C. To Siyar Khan or in default in payment of compensation, he is to suffer further S.I. For three months. Similarly the appellant was also found guilty under section 324/34, P.P.C. For attempting at the live of Nisar Khan and he was thus awarded the sentence of 3 years R.I. With a fine of Rs,5000 or in default to suffer further S.I. For two months. The appellant was also directed to pay an amount of Rs,10,000 as compensation to Nisar Khan under section 544-A, Cr.P.C. Or in default in payment of compensation, he is to suffer further S.I. For three months. The sentences were ordered to be run consecutively. Hence this Criminal Appeal and Murder Reference.
4. Learned defence counsel appearing on behalf of the appellant contended that the narration given by the P.Ws., does not fit in with the entries made in the site-plan notwithstanding it was admittedly prepared at their instance. No doubt the story furnishing reasons for identification of the assailants is correct, the learned counsel added, but Hasib Gul, P.W.13 (complainant) and Siyar Khan, P.W.14, being brother and nephew of the deceased, their testimony cannot be safely relied upon in a case involving capital punishment, when the possibility of exaggeration in their testimony cannot be ruled out. The learned counsel in the alternative urged for conversion of the death sentence into imprisonment for life by submitting that when the ocular account furnished by the brother and nephew of the deceased, being interested witnesses, it cannot be said with certainty that the occurrence has taken place in the manner as prescribed by them in their statements or shown in the F.I.R. And thus this fact is still shrouded in mystery and the sentence of death shall be too harsh in the circumstances of the case.
5. As against that, the learned State counsel appearing on behalf of the State assisted by the learned counsel for the complainant argued that the account furnished by the P.Ws., besides being credible, confidence inspiring, in line with the medical evidence and entries made in the site-plan coupled with the absconsion, was rightly relied upon by the learned trial Court while convicting the appellant. In the absence of any mitigating circumstance, the learned counsel submitted, the sentence of death is not open to any interference, that too, when the dispute on path between the parties as a motive stands unshakably established on the record.
6. We have gone through the record carefully and considered the submissions of tile learned counsel for the parties.
7. A perusal of the statements of Hasib Gul and Siyar Khan, P.Ws., would reveal that they furnished a natural and straightforward account of the occurrence by recounting the facts mentioned in the F.I.R. They clearly stated the places wherefrom the deceased was going and he was fired at by the appellant. They were subjected to a lengthy searching cross-examination but their statements were not shattered and nothing was brought to the contrary as could reduce the probative worth of their testimony. There is absolutely no conflict between the account furnished by them and the entries made in the site-plan, when seen with open eyes and attentive mind. There is also no conflict between the ocular account and the medical evidence as indeed they supplement each other. The account furnished by the official witnesses also appears to be natural and straightforward, when no significant discrepancy is noticed in their statements. Omission, if any, on the part of the Investigating Agency to examine any person in the matter is not of much importance when the entire evidence on the record went unshaken. In this background, though we have no hesitation to hold that the charge against the appellant has been proved beyond any reasonable doubt and that he was rightly convicted by the learned trial Court but the argument urged in the alternative is, however, not without substance, when according to the evidence recorded in the Court, there was an altercation over the thoroughfare between the appellant and the complainant party and being closely related with each other, the fact that the occurrence has taken place in the manner that both, the appellant aged 68 years and his young son (absconding accused) fired at the deceased is still shrouded in mystery especially when it is not certain as to whose shot turned effective and is a begging question in the circumstances of the case, which cannot be answered from the available record. The normal A sentence of death, in the circumstances of the case, shall certainly be too harsh. We, therefore, convert the sentence of death into imprisonment for life while the amount of compensation and sentences awarded by the learned trial Court are left intact. The other conviction and sentences imposed upon the appellant under section 324, P.P.C., are also maintained. All the sentences awarded to the appellant are directed to be run concurrently and he shall be entitled to the benefits of section 382-B, Cr.P.C. This appeal is disposed of with the modification hinted to above. The murder reference is thus answered in negative.
Sentence converted.