' KHAWAJA MUHAMMAD SHARIF, C.J.-This judgment will dispose of Criminal Appeal No,177 of 2005 filed by Wajid Hussain appellant, who was convicted and sentenced by learned Additional Sessions Judge, Rawalpindi vide impugned judgment dated 10-5-2005 to death under section 302(b), P.P.C, and to pay Rs,50,000 as compensation to the legal heirs of the deceased or in default six months'
S.I.
' Murder Reference No,709 of 2005 for confirmation or otherwise of death sentence of Wajid Hussain appellant shall also be disposed of through this single judgment.
2. Brief facts of the case as narrated by Mst. Naseera Jan complainant are that on 14-4-1998 at about 9-40/9-45 a.m. She went to the house of her mother Mst. Rahim Jan situated in Galli No, 1, Garoti Stop Badar Mandi Rawalpindi. Her elder sister Mst. Nazar Begum was already present there in the house of her mother. Muhammad Sarwar, Siddique and Wajid Hussain accused were also present in the house of her mother. As soon as, she entered into the house of her mother, Sarwar and Siddique came out the house and Wajid Hussain remained present inside the house. He started abusing her mother and her mother in response of his abuse asked Wajid accused to restrain, then Wajid Hussain gave three Churri blows on the left chest of her mother. Then Wajid Hussain pulled out pistol from his dub and made fire shot, which hit on the head of her mother, who succumbed to the injuries at the spot and Wajid Hussain fled away from the spot. She further stated that Wajid Hussain accused committed murder of her mother on the instigation of co- accused Siddique and Muhammad Sarwar. That Muhammad Sarwar co-accused was of the opinion that so long Mst. Rahim Jan remained alive she would not permit Muhammad Sarwar to transfer the land in the name of Siddique and Wajid Hussain.
3. Investigation of case was taken over by Sher Muhammad S.-I./CW-6. He after receiving information about the instant occurrence reached at the spot where he found the dead body of Mst. Rahim Jan. He recorded the statement of Naseera Jan Ex-PA/1, prepared injury statement Ex.CW-6/A and inquest report Exh,C.W. 6/B and sent the dead boy to the mortuary for post-mortem examination. He took into possession blood through cotton vide memo Ex. PC. He also took into possession one missed cartridge P-1 and one empty P-2 vide memo. Exh.PB. He prepared rough site plan Exh.C.W. 6/C. On 19-4-1998 he arrested Wajid Hussain accused, who got recovered chhuri, which was taken into possession vide memo. Exh. CW-6/E, thereafter, the investigation was entrusted to Muhammad Irfan Inspector C.W. 7, who on 23-4-1998 recovered 30-bore pistol C.W.
5/1 from Wajid accused which was taken into possession vide memo. Exh. C.W.5/A. Then he secured towel C.W. 5/2 and after completion of formal investigation the accused was sent to face the trial.
4. At the trial, the prosecution in order to prove its case produced thirteen Court witnesses in all, thereafter, the complainant after tendering in evidence report of Chemical Examiner Exh. PG, report of Serologist Ex-PE, report of chemical examiner Exh.PF, report of Serologist Exh. PG and that of Forensic Science Laboratory Exh. PH closed the prosecution, case. Then the statement of the accused was recorded under section 342, Cr.P.C. However, after conclusion of trial, the accused was convicted and sentenced as mentioned above by the learned trial Court.
5. After having read the entire prosecution evidence, the statement of appellant recorded under section 342, Cr.P.C. And other material available on record, learned counsel for the appellant submits that ocular account is not corroborated by medical evidence; that injury ascribed in the F.I.R. With fire-arm on the nose was an exit wound while -entry wound was on the back on the skull of the deceased; that sharp edged injuries attributed to the appellant on the right side of chest of the deceased were in fact according to post mortem report on the left side of chest of the deceased. Further submits that it was the case of prosecution that after the occurrence, the accused ran away from the spot and the house remained in his custody or the ladies eye- witnesses so it was not possible that the house was in possession of the appellant and he got recovered chhuri from the said house; that according to recovery memo Exh. C.W.6/E at page 181 of the paper book, the front portion of the chhuri was bent {{URDU TEXT}}. Learned counsel has referred inquest report, which was prepared immediately after registration of F.I.R. And submits that in column No,12 of the same the word fire arm ({{URDU TEXT}}) is mentioned; that both the ladies eye-witnesses have their own houses and their presence in the house of deceased is highly doubtful; that the empties were taken into possession on 14-4-1998 and the same were received in the office of Forensic Science Laboratory on 20-4-1998 while the appellant was arrested on 19-4- 1998 so it also casts doubt on the positive report of fire-arm expert.
' As far as motive is concerned, learned counsel submits that the land was owned and possessed by Muhammad Sarwar husband of the deceased and there was no need for the permission of the deceased in this regard. He submits that there was no joint account of Muhammad Sarwar and the deceased and before the occurrence abuses were exchanged between deceased and appellant.
Adds that had the eye-witnesses been present at the spot at the time of occurrence they could have given the correct seat of the injury and the weapon used in the occurrence; that recovery memos were not appended with the challan and when the scrutiny was done by the prosecution branch, then those were attached; that it is a case of acquittal but if this Court is not convinced regarding the submissions for the acquittal of the appellant then there are mitigation circumstances in his favour i.e, that occurrence took place between the deceased and the appellant when they abused each other.
6. Learned D.P.G. Assisted by learned counsel for complainant submits that it is a case of promptly lodged F.I.R.; that both the ladies eye-witnesses are natural witnesses and their statements are consistent with each other; that there is no conflict between ocular and medical evidence because no confrontation was brought on the record by the learned defence counsel at the time of cross examination of two ladies eye-witnesses; that motive has not been challenged by the defence before the learned trial Court; that empties were recovered from the spot on the very day of occurrence and those were sent to the office of Forensic Science Laboratory on 20-4-1998 while the pistol was recovered from the appellant on 23-4-1998 and the report in this regard is positive in nature; that the appellant had two types of weapons and he did not let any possibility for the deceased to remain alive; that deceased was unarmed lady at the time of occurrence; that place of occurrence has not been challenged by the defence; that both the ladies eye-witnesses used to reside across the street; that trend of cross examination proves that Wajid Hussain appellant was there and he committed murder of the deceased; that abuses were made first by the appellant to the deceased; that non proof of motive is no criteria for lesser sentence. Reliance is placed upon 1987 SCMR 1136 and 2002 SCMR 1155 and 1806. He lastly submits that prosecution has approved its case against the appellant beyond any shadow of doubt so the appeal filed by him is liable to be dismissed.
7. We have heard the arguments of learned counsel for the parties at a great length and have also gone through the record very minutely. Occurrence in this case has taken place on 14-4-1998 at 10- 00 a.m. While the matter was reported to the police by Mst Naseera Jan complainant on the same day at 10-45 a.m. And the formal F.I.R. Was recorded on the same day at 1115 a.m. The deceased in this case is Mst Rahim Jan step maternal grandmother of the appellant. Along with the appellant two co-accused namely Muhammad Sarwar who was husband of the deceased and maternal grandfather of the appellant and Muhammad Siddique son in law of Muhammad Sarwar were tried but Muhammad Sarwar died during the trial whereas Muhammad Siddique was acquitted by the learned trial Court. Prosecution produced two eye-witnesses namely Mst. Naseera Jan PW-3 and Mst. Nazar Begum PW-4 who are daughters of the deceased. Two empties, one missed and other, were taken into possession by the police vide memo. Exh.PD and blood was secured through cotton vide memo. Exh. PC on the same day. Appellant was arrested on 19-4-1998, and he got recovered Chhuri on 20-4-1998 which was taken into possession vide memo Exh.CW-6/E. The chhuri recovered on the pointation of appellant was found to be stained with human blood according to report of Chemical Examiner and that of Serologist. On 23-4-1998 appellant got recovered pistol 30-bore CW-5/1 which was taken into possession vide memo Exh.CW-5/A. Dr. Zain-ulAbideen C.W.1 conducted post mortem examination on the dead body of the Rahim Jan deceased on 14-4-1998 at 3-30 p.m. And found one firearm and three sharp edged weapon injuries on her person. The probable time between injury and death was immediate and between death and post mortem was about six to eight hours.
' It has been argued by learned counsel for the appellant that prosecution failed to prove the motive against the appellant because the property was in the name of Muhammad Sarwar co- accused/ husband of the deceased and there was no need to get permission from the deceased for giving the property to the appellant or the other near relation so we are of the considered opinion that prosecution has not been able to prove the motive, against the appellant and even two co-accused, one Sarwar, who died during the trial and the other Muhammad Siddique, who was acquitted by the learned trial Court and though appeal against his acquittal was filed by the complainant but the same was dismissed by this Court.
' Although there is conflict between ocular account and medical evidence but we cannot expect from women of villages that they will give the right place of seat of injuries because two types of weapons were used by the appellant at the time of occurrence so we do not lay much stress on this contradiction.
So far as, ocular account is concerned, we are satisfied in our mind that both the ladies eye- witnesses were present at the spot and they have fully supported the prosecution case to its hilt.
Even the reports of firearm expert regarding pistol 30-bore and Chhuri recovered at the instance of the appellant are also positive in nature but there are some mitigating circumstances in favour of the appellant for lesser sentence i.e, that prosecution failed to prove the motive given in the F.I.R.
And it is the case of the complainant herself in the F.I.R. That in the presence of eye witnesses Wajid Hussain appellant had abused Rahim Jan deceased and in reply deceased also abused him.
In order to reach at a just conclusion, we have also gone through first version of the appellant recorded by the police at the time of his arrest, which has been held to be most important as reported in a case titled as Muhammad Yaqub v. The State (PLD 1969 Lahore 548). In fact when the appellant went to the house of his maternal grandfather, deceased asked him that she had forbade him not to visit her house and why he had to come in her house, she also abused him and the appellant also replied in the same terms. It has also been mentioned by the appellant in his first version that he used to keep a pistol and a Chhuri with him as there was enmity in the village between him; and other persons so when the deceased reprimanded the appellant and abused him, he in provocation first gave injuries with chhuri and then also fired a shot, which resulted into the death of the deceased so we are of the opinion that deceased was herself responsible for her death. Had she not reprimanded the appellant from visiting the house of his maternal grand father and not abused him, no such occurrence could have taken place.
' Taking into consideration, they above mentioned mitigating circumstances, though we maintain the conviction of the appellant under section 302(b), P.P.C. But B convert his sentence from death to imprisonment for life with the benefit of section 382-B, Cr.P.C. As far as, compensation awarded by the learned trial Court to the appellant is concerned, that's maintained. Death sentence awarded to the appellant is not confirmed and Murder Reference is replied in negative.
Sentence reduced.