' MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No,1726 of 2003 (Muhammad Qayyum v. The State); Criminal Revision No,1003 of 2003 (Ghulam Muhammad v.
Muhammad Qayyum) and Murder Reference No,720/03 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant Muhammad Qayyum, as they arise out of the same judgment, dated 24-9-2003 passed by the learned Additional Sessions Judge-II, Bhakkar, hereby, appellant was convicted under section 302(a), P.P.C. And sentenced to death as Qisas. However, benefit of doubt was extended to Muhammad Ramzan, Siraj Din and Abdul Hamid co-accused by way of acquittal from the charge. Criminal Appeal No,1837 of 2003 (Ghulam Muhammad v. Abdul Hameed etc.) filed against the acquittal of respondents therein was not pressed by the learned counsel for the appellant Mr. Kamran Mirza, Advocate which has been dismissed as having not been pressed through a separate order while P.S.L.A.
No,95/03, which was filed against the acquittal of respondents (therein), namely, Ghulam Muhammad, Rana Abdul Ghafar and Sagheer Ahmad alias Gheera, has been dismissed through a separate order, as it arose from a separate judgment.
2. Brief facts of the case, as given by Ghulam Muhammad complainant (P.W.10) in the F.I.R. (Exh. P1) are that on 25-7-2002 at about 9-00 p.m. :Alen he along with Sakhi Muhammad and Abdul Ghaffar was present in the fields, his brother Ghulam Nabi had come there to take fodder and started talking with Abdul Ghaffar, appellant Muhammad Qayyum along with acquitted co-accused Abdul Hamid had come there. It was alleged in the F.I.R. That the appellant raised a Lalkara that Ghulam Nabi be not spared. As per complainant, his brother Ghulam Nabi tried to run away but accused Abdul Hamid took him into Japha while appellant Muhammad Qayywn made repeated fires with his pistol on the person of Ghulam Nahi which landed on his left side of thigh while the said Abdul Hamid also received injuries in the occurrence. According to the F.i.R., Ghulam Nabi fell on the ground who breathed his last on the way to hospital. The motive set in the F.I.R. Was stated to be previous enmity and criminal litigation between the parties. Two acquitted co-accused, namely, Muhammad Ramzan and Siraj Din were implicated through the supplementary statement as accused of abetment and conspiracy.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the accused, charge was framed to which accused pleaded not guilty and claimed trial. However, a counter version was put forth by Abdul Hamid against Ghulam Muhammad, Rana Abdul Ghaffar and Sagheer Ahmad alias Gheera who were summoned to face trial but -mere acquitted from the charge through a separate judgment, as stated above.
4. In order to prove its case, prosecution produced as many as 13 P.Ws. During the trial. The appellant/accused, along with others, was examined under section 342, Cr.P.C. They did not opt to depose on Oath as required under section 340(2), Cr.P.C. But the appellant produced defence evidence i.e, (i) Copy of F.I.R. No, 56, dated 28-6-1999 as Exh.DH, (ii), copy of order regarding discharge of the accused in case F.I.R. No,248, dated 25-7-2002. However, the learned trial Court convicted and sentenced the appellant as detailed above.
5. Learned counsel for the appellant contends that the appellant has falsely been involved in this case on account of mala fide of the complainant and the local police; that there is a delay of about two hours in registration of the F.I.R. Because the occurrence took place at 7-00 p.m.
Whereas the F.I.R. Was lodged at 9-00 p.m. On the same day; that co-accused of the appellant, namely, Abdul Hamid was injured as he had received four firearm injuries on his person who was medically examined on the same day by P.W.1. Dr. Muhammad Ramzan, prior to the conducting of the postmortem examination, by him, on the dead body of the deceased Ghulam Nabi.
' Learned counsel further contends that the enmity is admitted between the parties which is established on the record; that the prosecution, in order to prove its case against the appellant, has produced two eye witnesses, namely, P.W.10 Ghulam Muhammad and P. W.11. Abdul Ghaffar who are inimical towards the appellant which factum is admitted by P. W.11. Abdul Ghaffar in his cross-examination to the effect that in a criminal case got registered under section 324, P.P.C. By Muhammad Ramzan (appellant), he along with his father was nominated accused, therefore, statement of the said P.W. Cannot be relied upon without any corroboration.
' While concluding his submissions, learned counsel for the appellant adds that it is a case of two versions one set up by the prosecution and the other given by the appellant and his acquitted co- accused Abdul Hamid in their statements under section 342, Cr.P.C.; that even the prosecution evidence suggests that the version of the appellant side is more probable and confidence inspiring and, in the afore-referred circumstances, it is a case of acquittal. In the alternate, learned counsel contends that if whole of the prosecution story is accepted it is not a case of capital sentence and falls within the ambit of section 302 (c), P.P.C.
6. Conversely, the learned Additional Prosecutor-General for the State assisted by the learned counsel for the complainant, while vehemently opposing this appeal, contends that the prosecution has proved its case against the appellant beyond any shadow of doubt by producing ocular account corroborated by the medical evidence; that two crime empties were recovered from the spot and one matched with the pistol taken into possession at the instance of the appellant because report of the Forensic Science Laboratory is positive; that even otherwise substitution is a rare phenomenon and that the sentence awarded to the appellant by the learned trial Court be maintained.
7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.
8. The occurrence in this case took place on 25-7-2002 at about 7-00 p.m., the F.I.R. (Exh.Pl) was lodged at 9-00 p.m. While the distance between the place of occurrence and the Police Station was 25/26 kilometers and the delay, if any, stands explained in the F.I.R. So, the argument of the learned counsel regarding delayed registration of the F.I.R. Has not force.
9. Initially, the F.I.R was lodged against two persons, namely, appellant Muhammad Qayyum and acquitted co-accused Abdul Hamid while two acquitted co-accused, namely, Siraj Din and Muhammad Ramzan, were implicated in the case through a supplementary statement.
10. The prosecution, i11 order to prove its case, has relied on the ocular account furnished by P.W.10.
Ghulam Muhammad and P.W.11. Abdul Ghaffar, medical evidence of P.W.1. Dr. Muhammad Ramzan, recoveries of crime empties from the spot and of pistol from the appellant and positive report of the Forensic Science Laboratory (Exh.PL).
11. As far as motive part of the prosecution is concerned, there is no denial qua existence of enmity between both the parties and even there is no dispute qua the time and place of occurrence.
However, the manner of occurrence is disputed one.
12. As far as prosecution case is concerned, it was the appellant who fired at Ghulam Nabi deceased while the acquitted co-accused Hamid had taken the deceased into Japha at that time who too received firearm injuries as a result of firing of the appellant. On the other hand, case of the appellant, as given by the appellant in his statement recorded under section 342, Cr.P.C., was that as a matter of fact it was the other side who opened firing at Hamid and that as a result of their said firing Ghulam Nabi died.
13. We have noted that the prosecution has produced two eyewitnesses, namely, P.W.10 Ghulam Muhammad and P.W.11. Abdul Ghaffar to prove its case. P.W.10 is complainant and real brother of the deceased. He has reasonably explained his presence at the spot and the defence could shake nothing from his testimony who remained consistent on all material particulars while P.W.11., having adjacent land to the spot, has also reasonably proved to have witnessed the occurrence. Their testimony is in line with the medical evidence furnished by P.W.1., Dr. Muhammad Ramzan who has stated that on 26-7-2002 he conducted the postmortem examination on the dead body of Ghulam Nabi deceased and found a firearm injury on the front of upper part of the left thigh (left inguinal region) of the said deceased. Therefore, in our view, the ocular account in this case is in line with the medical evidence.
14. The prosecution case finds support from yet another piece of evidence i.e, recovery of two crime empties of .30 bore (P/1-2) which were taken into possession on 26-7-2002 through memo. Exh.
PH/2 duly proved through P.W.7 Allah Rakha and P.W.13 Muhammad Amir S.-I./I.O. The appellant in this case was arrested on 8-8-2002 and crime empties were sent to the office of the Forensic Science Laboratory on 6-8-2002 i.e, prior to his arrest where it were received on the same day, whereas, the pistol (Exh.PD) was taken into possession from the appellant on 12-8-2002 and was sent to the office of the Forensic Science Laboratory on 17-8-2002 and the report of the said Laboratory is positive (Exh. PL).
15. In the afore-referred circumstances, this Court is of the considered view that the prosecution has proved its case against the appellant beyond any shadow of doubt and we hold that the charge of murder of Ghulam Nabi deceased in this case is proved against the appellant because in such like cases substitution is a rare phenomenon, therefore, the sentence of the appellant is hereby maintained but it would be under section 302(b), P.P.C. And not under section 302(a), P.P.C.
Because the requirement of section 302(a), P.P.C. Is not fulfilled.
16. However, while coming to the question of quantum of sentence we have noted that there are mitigating circumstances in favour of the appellant. It is on the record that the acquitted co- accused of the appellant, namely, Abdul Hamid is injured in this case. He was medically examined by the same doctor i.e, P.W.1. Dr. Muhammad Ramzan who also conducted the postmortem examination on the dead body of the deceased. Medico-Legal Report qua injuries on the person of Abdul Hamid is Exh.D.A. As per said report, there are six injuries on the person of the Abdul Hamid.
Out of those injuries, three are fire-arm entry wounds on his chest, two are exit while one is grazing wound. The prosecution case is that the said Abdul Hamid was holding the deceased Ghulam Nabi into his Japha and received those injuries at the hands of the appellant. This does not appeal to common sense as in case of inflict of injuries with a knife or other sharp-edged weapon there is a possibility of holding the victim into a Japha but in the case of firing this is not probable. Moreover, if a person holds some one into his Japha then there was no possibility of having received injuries of the nature as received by Abdul Hamid, therefore, the injuries received by him are suggestive of the fact that the prosecution has not spoken the truth qua these injuries. As such, it is not clear as to what exactly happed at the spot coupled with the facts that the appellant has not repeated the fire at the deceased and only one fire-arm injury was caused by him. Therefore, in the peculiar facts and circumstances of this case, we are of the considered view that it is a case of mitigation, so, the sentence of death of the appellant is converted into imprisonment for life. In this regard reliance is placed on Mirza Zaheer Ahmad and another v. State and others 2003 SCM R 1164 and Muhammad Tariq v. The State (2004 SCM R 783).
17. We have further noted that while awarding sentence to the appellant, the learned trial Court has omitted to award compensation as required under section 544-A, Cr.P.C., therefore, the appellant is directed to pay an amount of Rs,50,000 as compensation to the legal heirs of the deceased in default whereof to further undergo six months S.-I. Benefit of section 382-B, Cr.P.C. Shall also be extended to him. Criminal Appeal No,1726/03 (Muhammad Qayyum v. The State) is partly allowed and disposed of accordingly in the above noted terms while for afore-referred reasons Criminal Revision No,1003/03 (Ghulam Muhammad v. Muhammad Qayyum) also stands disposed of.
' Murder Reference is answered in the Negative and sentence of death is NOT CONFIRMED.