' SH. NAJAM UL HASAN, J.---This appeal is directed against the judgment dated 21-9-2004 passed by the learned Additional Sessions Judge, Okara whereby he tried Sher Muhammad, appellant along with Muhammad Riaz, Zulfiqar, Akram and Allah Ditta in case F.I.R. No,363 dated 17-7-2002 under sections 302/148/149, P.P.C. Registered at Police Station Chuchak, District Okara and while acquitting the co-accused of the charge of murder, convicted the appellant under section 302(b), P.P.C. And sentenced him to death. The appellant was also directed to pay compensation of Rs,1,00,000 under section 544-A, Cr.P.C. To the legal heirs of Muhammad Saleem, deceased or to suffer S.I. For six months in default thereof. He has filed the present appeal. The State has also approached this Court by way of Murder Reference No,620 of 2004 seeking confirmation of death sentence awarded to the convict. Both these matters are being disposed of through this single judgment.
2. The prosecution story as narrated in the F.I.R. (Exh.PA/1) on the statement of Muhammad Sadiq, P.W. 6 is that he was a tenant of one Rai Muhammad Ali Kharal who had a dispute regarding the said land with Sher Muhammad alias Sehari, appellant. It was alleged that the appellant extended threat to the complainant not to cultivate the land in dispute otherwise he would be dealt with severe hands. On 17-7-2002 at about 2-00 a.m. The complainant along with his son Muhammad Saleem was sleeping in front of his house when they got up on hearing reports of firearms. The complainant and his son went to the residence of Rai Muhammad Ali and when they were still at water-channel, they were intercepted by Sher Muhammad appellant, and, Riaz, co-accused, both armed with rifles, Zulfiqar and Akram co-accused armed with guns and Allah Ditta co-accused.
They started hurling abuses to the complainant and his son and the appellant fired a shot with his rifle hitting Muhammad Saleem, at his chest who fell down. Thereafter the accused made aerial firing and left the spot. Muhammad Saleem, expired at the spot due to said injury. Hence the F.I.R.
3. Dr. Nazeer Hussian, P.W. 4 made autopsy on the dead body of Muhammad Saleem on 17-7-2002 and found a lacerated wound 3/4 c.m. x 1/2 cm deep going with inverted margins on the front of lower part of right side of chest making an exit on the left lumber area. The doctor opined that death had occurred due to the above injury which was ante-mortem, caused by fire-arm and sufficient to cause death in the ordinary course of nature. Probable time between injury and death was stated to be about hour and between death and post mortem within 18 hours.
4. Abdus Sattar, Sub-Inspector (P.W.8) conducted investigation of this case. He was present at Adda Lasharian along with other police officials when the complainant met him and made his statement (Exh.PA) which was sent to the Police Station where formal F.I.R. (Exh.P/1) was recorded.
Thereafter, the Sub-Inspector inspected the spot and conducted formal investigation. During spot inspection, he collected 17 empties of .12 bore (P.3/1-17), 11 empties of 7 mm rifle (P.4/1/1-11) and 7 empties of 303 rifle (P.711-7) which he took into possession vide memo. Exh. PF. On 31-7-2002 he arrested Sher Muhammad, appellant along with his co-accused. On 14-8-2002 the appellant made a disclosure and then got recovered 303 rifle (P.1) which was taken into possession by the investigator. Nothing was however recovered from the co-accused. After completion of challan the accused were sent to Court for trial.
5. At inception of the trial, charge was framed against the accused persons, which they pleaded not guilty and claimed trial. The prosecution produced eight witnesses to prove the charge against the accused persons.
6. At the close of prosecution evidence, the accused were examined under section 342, Cr.P.C. They dismissed and denied the prosecution evidence. Sher Muhammad, appellant claimed that he had been falsely involved at the behest of Rai Muhammad Ali who was a big landlord of the area and had personal grudge against the appellant. He further claimed that the said Rai Muhammad Ali wanted to get the appellant killed through hired assailants but the appellant survived, therefore, the said Rai Muhammad Ali got the deceased killed through his hired assailants and involved the appellant and others in this false case. The appellant did not enter the witness box under section 340(2), Cr.P.C. And also did not produce evidence in his defence. At the end of trial, the learned trial Court convicted and sentenced the appellant and acquitted his co-accused as noted above.
7. Learned counsel for the appellant contends that the occurrence took place at odd hours of night and there was no possibility of the P.Ws. To be present at the spot at that span of time as the same was not near to their residence; that there was no source of light near the place of occurrence, hence it was not possible for the P.Ws. To identify the assailant(s) and that the appellant has been falsely involved in the present occurrence; that the occurrence was reported to the police after a delay of 4 hours which has not been explained by the complainant which clearly indicates that the time was consumed in fabricating a concocted story against the appellant and as such the delay makes the prosecution case highly doubtful; that there are material contradictions between the statements of the P.Ws. And they have made dishonest improvements at trial, therefore they are not trustworthy and their statements cannot be relied until corroborated by other independent evidence which is lacking in the present case. By referring to the positive report of the Firearm Expert, the learned counsel contends that the crime empties recovered from the spot and the rifle recovered from the appellant had been deposited in the office of the Forensic Science Laboratory through Sajjad Ahmad, Constable No,1054 who was never produced during trial rather he was given up by the prosecutor as being unnecessary and in the whole case there was nothing to show how the rifle and the crime empties reached the F.S.L. As per learned counsel this break in the chain regarding the receipt of crime empties and weapon of offence has made the whole recovery doubtful. Learned counsel further contends that no independent witness has been produced to prove the motive. Even during investigation no one was produced in support of motive. In the circumstances, the motive cannot be said to have been proved by the prosecution. The learned counsel argued that four co-accused of the appellant were acquitted by the learned trial Court while disbelieving the ocular account and on the same evidence the appellant has been convicted and sentenced to death. Contends that the apex Court has held in PLD 1985 SC 11 that in such circumstances evidence can only be used against the convicted accused if the same gets support from other material of unimpeachable character which is lacking in the present case.
8. Conversely, learned Additional Prosecutor-General contends that the eyewitnesses were resident of the area close to the place of occurrence, hence their presence at the spot is absolutely natural; that role of firing shot at the decease has been specifically attributed to the appellant; that the injury mentioned by the complainant at the deceased was found at the dead body by the doctor who conducted post mortem, therefore, the ocular account is supported by the medical evidence; that it was specifically mentioned in the F.I.R. That light was available at the place of occurrence and in the site plan certain bulbs have been shown by the draftsman near the spot and even otherwise both the parties were previously known to each other, therefore, there was no chance of mistaken identity; that there was a land dispute between the appellant and Rai Muhammad Ali for which the appellant had threatened the complainant and his deceased son to stop cultivating the said land otherwise they will have to face consequences which shows that the occurrence was the result of same motive because the deceased and the complainant was still cultivating the land and had not left the same even after the threat of the appellant father; that it was implausible in the normal course of human nature that a father would let of the real culprits of his son and would involve the enemy of his landlords on his asking. It is also contended that a 303 rifle was recovered from the appellant which later on was found matched with the crime empties of 303 rifle recovered from the spot. So far as non-production of Sajjad who had allegedly taken the fire-arms to the laboratory concerned the learned Law Officer submits that it does not affect much on the prosecution case because the Firearm Expert found the seals intact when he received the parcels in his office. It is lastly argued that the co-accused were acquitted as according to the prosecution version the deceased received the injury only at the hands of the appellant and that presence of 35 crime empties of different kind of weapons further supports the prosecution version that the appellant was a big landlord and could not tolerate disobedience of the deceased and as such has killed him. He, therefore, does not deserve any leniency.
9. The complainant was father of the deceased and resided in the same house which was near to the place of occurrence. Similarly P.W.7 was also residing close to the place of occurrence. It has come in the A prosecution case that there was report of fires before the present occurrence. In the circumstances, it was natural for the witnesses to have been attracted towards the place of occurrence. Therefore, their presence at the place of occurrence is more than natural. The complainant narrated in the F.I.R. And even at the trial supported by P.W.7 that the appellant fired a shot with his rifle hitting the deceased at his chest. During post mortem examination, the doctor found a fire-arm entrance wound in the chest making an exit on the back side. Thus the seat of injury and kind of weapon is supported by the medical evidence. There is enmity between the parties. The appellant had threatened the complainant and his son to vacate the land otherwise they will have to face consequences. So in this situation the attack by the appellant on the deceased for the same purpose cannot be ruled out. The presence of light at the place of occurrence is duly mentioned in the F.I.R. And the draftsman who prepared the site plan also observed and mentioned the presence of electric light near the place of occurrence. Even otherwise the parties were fully known to each other and there was no chance of mistaken identity.
Real son of the complainant had been killed by the appellant and it does not seem to be plausible that a father would involve enemy of his landlord letting of real culprits of his son. The allegation of motive was also directed against the appellant. It was alleged that the appellant was armed with rifle at the time of occurrence. After his arrest, 303 rifle was recovered from him. Huge quantity of empties were collected by the investigator from the place of occurrence at the time of spot inspection and the empties of 303 rifle matched with the rifle recovered from the appellant. No doubt the witness who had taken the weapon of offence and the crime empties to the laboratory had not been produced at trial, yet the fire arm expert found the seals on the said parcels intact which eliminates the possibility of tampering the parcels. Therefore, the recovery of weapon of offence from the appellant and positiv report of F.S.L. Is also a factor which goe against him. All these things show that I was the appellant who had committed th murder of the deceased. The prosecutio witnesses were subjected to lengthy cross examination but the defence could nc create a dent in their testimonies. As suc we find that the prosecution has full, proved its case against the appellant.
10. However, the matter of sente] needs re-consideration. Only a single s was fired by the appellant, which hit deceased and the appellant did not rep the same. Four of his co-accused have be acquitted and it has been held by superior Courts that in such also situation abundant caution the appellant is entitled to lesser penalty.
11. In view of what has been noticed and discussed above, we find that present is not a case of capital punishment. Consequently, while maintaining the conviction under section 302(b), P.P.C.
Sentence of death awarded to the appellant is converted into imprisonment for life. The direction for compensation is, however, maintained. Benefit of the provisions of section 382-B, Cr.P.C. Shall also be granted to the appellant. With this modification in the sentence, this appeal is dismissed.
12. Since we have converted the death sentence of the appellant into imprisonment for life, therefore, Murder Reference No,620 of 2004 is answered in the negative. Sentence of death is not confirmed.