'TARIQ SHAMIM, J.---Noor Ali, appellant along with another involved in case bearing F.I,R. 103/2002, dated 6-10-2002, registered with Police Station Noorpur Thal, for offence under sections 302/34, P.P.C. Were tried by the learned Additional Sessions Judge, Khushab, who vide his judgment dated 2-9-2003, convicted the appellant under section 302(a), P.P.C. And sentenced him to death as Qisas while acquitting Dost Muhammad, co-accused of the appellant.
2. Briefly, the facts of the case, as per F.I.R. (Exh.PG) lodged by Sher Muhammad, complainant (P.W .5), are that Noor Muhammad, brother of the complainant, had a dispute over land with Noor Ali appellant. On 6-10-2002, at about 12-00 Noon, the appellant armed with a 12 bore gun, Dost Muhammad armed with a wahola and Qasim Ali (Juvenile) armed with a sota in furtherance of their common intention started removing bushes from the boundary wall of the land of Noor Muhammad and the complainant forbade the appellant and others from doing so whereupon Noor Ali, Dost Muhammad and Qasim Ali raised lalkara that if anyone came near them, he will not be spared. Noor Muhammad tried to restrain the appellant and others whereupon Noor Ali appellant fired a shot from his gun which landed on the front of 'chest of Noor Muhammad who on receiving the same fell to the ground. The second shot fired by him hit the face of Noor Muhammad; Dost Muhammad and Qasim Ali continued to raise lalkaras in the meantime. After departure of the accused the complainant along with others P.Ws. Came out of the place of hiding and went to the spot and provided medical care to Noor Muhammad, who was in an injured condition. Thereafter Noor Muhammad succumbed to the injuries.
3. After supply of copies as required under the law, charge was framed against the appellant and another, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case produced Muhammad Riaz, Head Constable (P.W.1), Mushtaq Hussain, Constable (P.W.2), Dr. Tauqeer Ahmad Qaiser, T.H.Q. Hospital, Noorpur (P.W.3), Muhammad Iqbal, Revenue Patwari Halqa Shahwal (P. W . 4), Abdul Sattar (P.W .7), Dr. Ghaus Muhammad, Medical Officer, T.H.Q. Hospital, Noorpur Thal (P.W.8) and Niamat Ali, Sub-Inspector, Police Station Jandanwala (P.W.9) and Sher Muhammad complainant (P.W,5) and Muhammad Ramzan (P.W.6) as eye- witnesses of the occurrence. The learned A.P.P. After tendering the report of the Chemical Examiner (Exh. PT), report of the Serologist (Exh.PU) and that of, the Fire-arm Expert (Exh.PV) closed the prosecution evidence.
4. Thereafter the statement of the appellant was recorded under section 342, Cr.P.C. In response to the question "Why this case against you and why the P.Ws deposed against you?" the appellant, replied as under:- "I am innocent. Noor Muhammad deceased had many enemies. There are surkandas at the alleged place of occurrence and Noor Muhammad was killed by some unknown enemy or he received injuries by a shot fired by some hunter by a cartridge of small power which has small pellets and after sustaining injuries Noor Muhammad remained at the spot for about one hour.
None has witnessed the occurrence, and he was in fact removed to his house in Mauza Shahwal by the inhabitants of surrounding deras and the complainant has concocted the false story of removing the surkandas and has lodged this false case against me, my brother and my son. Ata Muhammad had attempted to abduct my wife Mst.Jannat Bibi and for the said occurrence, Mst.
Jag Sabhai mother of Mst. Jannat Bibi had lodged the F.I.R. Against Ata Muhammad etc. Mst.
Jannat Bibi who is daughter of my maternal aunt had contracted marriage with me with her free consent and the complainant party of this case had lodged a false case of abduction against me in which was acquitted. The instant case has also been lodged against us due to enmity. Rahim Bakhsh brother of Mst. Jannat Bibi wants to usurp the land of Mst. Jannat Bibi inherited by her from her father. Furthermore Muhammad Ramzan P.W. Who is son of my sister also wants to get the land falling to the share of her mother. There is no land of the complainant party near our land nor the boundary line of their own land abuts our land. The alleged place of occurrence is owned and possessed by us and the complainant party has no concern whatsoever with the same and the complainant party wants to get possession of our land forcibly and by involving us in this false case wants to usurp our land. On 7-10-2002 next day of the occurrence the police had arrested me from my house in Mauza Shawal and my licensed gun was taken into possession along with live cartridges, and bag and thereafter we were wrongfully confined at various places by the police.
The police has created the empties and then they have obtained the report from Forensic Science Laboratory to support the prosecution case. The deceased has expired due to lack of proper treatment."
5. The appellant neither appeared as his own witness to disprove the allegations levelled against him as required under section 340(2), Cr.P.C. Nor did he adduce any evidence in his defence.
6. The learned Trial Court at the conclusion of trial convicted and sentenced the appellant as stated above. The appellant has challenged his conviction and sentence through the instant appeal whereas the learned Trial Court has sent Murder Reference No,596 of 2003 for confirmation or otherwise of death sentence awarded to the appellant. Both the matters are being decided together through this single judgment.
7. The learned counsel for the appellant has contended that the complainant Sher Muhammad (P.W.5) and Muhammad Ramzan (P.W.6) are closely related to the deceased and therefore, their evidence cannot be accepted being interested witnesses; that in fact Noor Muhammad deceased was shot by some unknown person near the bushes; that there are major discrepancies in the statements of the eye-witnesses; that the deceased died due to negligence of the doctors and not as a consequence of the injuries suffered by him; that the evidence of recovery of weapon from the appellant is not confidence inspiring which even otherwise has no evidentiary value; that from the evidence, it is apparent that there was no premeditation on the part of the appellant as the occurrence had taken place at the spur of the moment and that the appellant and the deceased were closely related and in the absence of any previous enmity the question of murder of the deceased by the appellant does not arise.
8. The learned Deputy Prosecutor-General has vehemently opposed the appeal.
9. We have heard the learned counsel for the appellant as well as the learned Deputy Prosecutor- General and have gone through the paper book.
10. According to the F.I.R. Lodged by Sher Muhammad P.W.5 (the brother of the deceased), Noor Muhammad deceased had a dispute over land with Noor Ali appellant. On the fateful day, the appellant armed with a 12 bore gun, Dost Muhammad armed with a wahola and Qasim Ali (juvenile) armed with a sofa in furtherance of their common intention started removing bushes from the boundary wall of the land of the deceased. The complainant forbade the appellant from doing so whereupon the appellant and others raised lalkara that if any one came near them, he will not be spared and when Noor Muhammad deceased tried to restrain the appellant and others.
Noor Ali appellant fired a shot which landed on the front of chest of the deceased who on receiving the same fell to the ground. The second shot fired by him hit the face of the deceased. Dost Muhammad and Qasim Ali continued to raise lalkaras in the meantime. After departure of the accused the complainant along with other P.Ws. Came out of the place of hiding and went to the spot and provided medical care to the deceased. However, he subsequently died as a result of the injuries suffered by him in the occurrence. The motive behind the occurrence was stated to be a dispute over land as well as removal of bushes from the boundary wall of the land belonging to the deceased and the complainant. At the trial, Sher Muhammad (P.W.5) deposed on the same lines as in the F.I.R. Except the motive part to the extent of removal of bushes from the boundary wall which was omitted by him. The other eye-witness of occurrence Muhammad Ramzan (P.W.6) and son of the deceased also deposed on the same lines as the complainant had furnished details of the events leading 'to the murder of the deceased as well as the motive behind the murder of the deceased.' Muhammad Ramzan (P.W.6) is also witness of recovery of two empty cartridges P-5/1-2 taken into possession from the spot by the police vide memo. Exh.PH as well as the blood stained earth. After having scrutinized the ocular account furnished byll the said witnesses, we have come to an irresistible conclusion that the witnesses have furnished an accurate and consistent account of the occurrence. The statements made by the witnesses at the trial are in line and in conformity with each other in all material aspects of the case. Although some minor contradictions were pointed out by the learned counsel in their statements, however, the same are trivial in nature and, therefore, of consequence. It was also vehemently argued that witnesses are closely related to the deceased; therefore, their evidence cannot be accepted. We are afraid the argument is devoid of any force as mere relationship of the witnesses with the deceased is not a valid ground for discarding their evidence. It may be noted here that the deceased was cousin and Behnoi of Noor Ali appellant and in view thereof there is no plausible reason for the complainant and others to falsely implicate the appellant in the crime. It is also pointed out at this juncture that the occurrence in this case' took place at 12.00 Noon and the F.I.R. Was lodged within an hour at the Police Station 18 Km away from the place of occurrence. In view of the promptly lodged F.I.R. And it being a broad daylight occurrence, the question of false implication or misidentity of the appellant does not arise. On scrutiny of the statements made by the witnesses of ocular account at the trial, we have come to the conclusion that they have furnished a creditworthy and confidence inspiring account of the occurrence.
11. The medical evidence furnished by Dr.Ghaus Muhammad (P.W.8), who had conducted the post- mortem examination on the dead-body of the deceased, is in line with the ocular account as to the locale of injuries, the weapon used and the time of occurrence. Thus, this piece of evidence has also provided full corroboration to the ocular account being in consonance therewith. However, it has been noticed by us that in his cross-examination the Medical Officer has opined that the possibility of the injuries suffered by the deceased by one shot cannot be ruled out.
12. The other piece of evidence, which needs to be discussed, is that of motive. According to the witnesses the motive was two pronged, firstly the dispute over land between the parties and secondly removal of sarkandas from the boundary all of the land of the deceased. We have noticed that the prosecution has failed to establish that the deceased had dispute with the appellant and others over properly. The complainant B (P.W.5) in his cross-examination stated as under:--- "It is correct that Noor Ali accused had not any of our land in possession prior to this occurrence.
Volunteered that the dispute had only arisen due to cutting of bush reed on the boundary of the land. The occurrence had taken place due to dispute of cutting of bush reed."
Thus, it is evident that the main motive alleged in the F.I.R. And before the learned Trial Court of dispute between the parties over land had been abandoned by the c complainant, Muhammad Ramzan (P. W.6) in his cross-examination also admitted that there was no enmity inter se the accused present in Court and Noor Muhammad deceased prior to the occurrence . In view of the above discussion, we are constrained to hold that the prosecution, insofar as the motive is concerned, has failed to prove it at the trial.
13. The next piece of evidence is that of recovery of weapon from the possession of the appellant.
According to the prosecution, the appellant at the time of his arrest produced a 12 bore single barrel gun before the Investigating Officer and stated that he had used the gun in the occurrence.
This obviously amounts to a confession made before the police which carries no weight in view of Article 40 of the Qanune-Shahadat Order, 1984. Although the empties recovered from the spot, when examined in the Forensic Science Laboratory, were found to have been fired from the gun produced by the appellant, but we are constrained to hold that in view of legal infirmity discussed above, recovery of weapon is of no significance being unreliable. However, it is pointed out that D recovery of weapon is only a supporting piece of evidence and in the presence of confidence inspiring ocular account corroborated by the Medical Officer evidence as in the instant case; non- proof of recovery or absence thereof is of no consequence.
14. Now the last question before us is the quantum of sentence to which the appellant is liable. It has been observed that the occurrence in this case took place all of a sudden which implies that there was no premeditation or preparation on the part of the appellant; the motive as set up by the prosecution could not be proved at the trial and as to what had transpired between the deceased and the appellant shortly before the occurrence is shrouded in mystery; admittedly there was no previous enmity between the parties; the doctor who had conducted the post-mortem examination on the dead-body of the deceased did not exclude the possibility of injuries suffered by the deceased being caused by one fire, shot and lastly, the deceased and the appellant were very closely related to each other. In the above background we are inclined to take a lenient view.
15. Consequently, in view of the mitigating circumstances discussed above in furtherance of safe administration of justice, while dismissing the appeal filed by the appellant we convert the sentence of death awarded to the appellant by the learned Trial Court to imprisonment for life.
However, the sentence insofar as it relates to compensation and imprisonment in default is maintained. Benefit of section 382-B, Cr.P.C. Is allowed to appellant. The sentence of death is not confirmed and the Murder Reference is answered in the negative.