Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No, 373 of 2005 filed by Amjad Iqbal appellant, who was convicted and sentenced by the learned Addl. Sessions Judge, Jhelum vide impugned judgment dated 28.10.2005 under Section 302 (b) PPC, to Death and to pay a fine of Rs, 100,000/- (one lac only) or in default one year SI in a case bearing F.I.R No, 18 dated 25.01.2005 offence under Section 302 P.P.C. at Police Station Sohawa District; Jhelum. Murder Reference No, 813 of 2005 for confirmation or otherwise of death sentence of the appellant shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed by Arshad Mehmood complainant are that he was resident of village Gadari. On 25.01.2005 due to the death anniversary of his grand mother he was in the village in the house of his paternal 'uncles Dawood Khan and Maqsood Khan sons of Hayat Ali. He alongwith his fatter Matloob Hussain, brother Ibrar Hussain and uncles Dawood Khan and Maqsood Khan and the villagers was present in that house, where at about 1.00 p.m. accused Amjid Iqbal armed with pistol .30 bore came and shouted that he would not leave Ibrar Hussain alive.
Thereafter the accused shot straight fire on Ibrar Hussain which hit him on his chest and as a result of which he fell down while the accused decamped. Beside the complainant, Matloob Hussain, Maqsood Khan, Dawood Khan and the villagers witnessed the occurrence. The motive was that on that day the accused cut down a tree of Jandi, which, was common property amongst them, whereupon an altercation between uncle Dawood Khan and the accused in the house of Dawood Khan took place which was intercepted by the deceased and he while abusing the accused expelled him from the house. The aaused had a grudge for his insult, therefore, he in order to take revenge fired at the deceased with the intent to kill him. The complainant alongwith Qadeer and Gulfraz brought the deceased then injured to THQ Hospital Sohawa but he on the way succumbed to the injuries.
3. Zulfiqar Ahmad S.I. who conducted the investigation has stated that on 25.01.2005, on receipt of the information reached at the spot, where the complainant made an oral statement Ex P.G, which he recorded into writing and sent the same to the Police Station for registration of case. He also prepared the inquest report of the dead body Ex P.H/1. He arrested the accused on 30.01.2005 and on his disclosure recovered the crime weapon i,e, pistol P.6.
4. At the trial, the prosecution in order to prove its case produced 12 witnesses in all, thereafter, learned D.D.A after tendering in evidence the report of Chemical Examiner Ex.P.K, report of F.S.L Ex.PL closed the prosecution case, then, the statement of the accused was recorded u/S. 342 Cr.P.0 in which he pleaded false implication. However, after conclusion of trial, the appellant was convicted and sentenced as mentioned above by the learned trial Court.
5. It is contended by the learned counsel for the appellant in support of appeal that according to the F.I.R altercation took place between CW-1 Dawood and the appellant and Ibrar Hussain deceased gave abuse to the appellant and asked him to get out from the house. She further submits that Dawood was a prosecution witness but he appeared as CW-1 before the trial Court on the application of the appellant and both the parties i,e, the prosecution and the Defense had cross-examined him. Further submits that according to his statement the fire of Zulfiqar hit the deceased and not the fire of the appellant. She submits that in-fact the eye-witnesses were not present at the spot and the F.I.R was lodged after due deliberation and consultation. Further submits that the recovery has been planted upon the appellant and the appellant is entitled to acquittal.
6. On the other hand, the learned D.P.G submits that in the instant case FIR was promptly lodged; that it is a case of single accused and no question of substitution arises; that it is broad day light occurrence. The ocular account corroborates the medical evidence. Further submits that the fire- arm weapon has been recovered on the pointation of the accused and no application for change of investigation was ever made by the appellant.
7. We have heard the arguments of the learned counsel for the parties and have gone through the record.
8. The occurrence took place on 25.01.2005 at 01.00 p.m. The complaint was lodged on the same day at 3.20 p.m. in the Civil Hospital Suhawa. Formal F.I.R was lodged at 3.30 p.m. The complainant is Arshad Mahmood who is real brother of Ibrar Hussain deceased. The eye-witnesses are Raja Arshad Mahmood PW-9 and Raja Matloob PW10. One empty of .30 bore was recovered from the spot vide recovery memo. Ex.P.E and pistol is Ex.P-F. The appellant was arrested on 30.01.2005. He got recovered pistol on 07.02.2005. The report of Fire Arm Expert. Ex PM is positive in nature. PW-1 Dr. Wahid Asghar had conducted the post-mortem of dead body of the deceased on 25.01.2005 at 6.00 p.m. The time between the injury and death is 5 to 20 minutes and between death and post- mortem is within 5 to 8 hours. This is a case of two versions one put-forth by the prosecution through Raja Arshad Mehmood PW-9 and Raja Mutloob PW-10 being the eye-witness of the case.
We have also observed that the appellant gave his version in reply to Question No, 10 of his statement recorded under Section 342 Cr.P.C, which reads as under:-- "That the PWs are close relative of Abrar deceased and are inimical to me, due to the Murder of Riaz, the deceased Abrar and son of Riaz Zulfiqar were after the life of mine as Abrar was nephew of said Riaz and close friend of Zulfiqar. That on 25.01.2005 at about 10.30 a.m. when I came to my house deceased Abrar and Zulfiqar while armed with pistal attacked me in my house. On seeing them, I in order to save my life, ran and Abrar while chasing a few yards after me, made fire shot on me which did not hit me. When deceased turned to his companion at that very moment Zulfiqar fired a shot on me, which accidentally hit Abrar deceased. Amjad, Arshad are real brothers of deceased and Matloob is father of Abrar. No independent person of village supported their false version. That as father of Zulfiqar had already been died hence in order to safe his son Zulfiqar, I was made escape goat in this case due to previous enmity."
The version of the appellant mentioned above is also supported by Dawood CW-1 who is maternal uncle of the appellant and was cited as prosecution witness but was given up by the learned Public Prosecutor as having been won over. The learned trial Court has not believed the statement of Dawood CW-1 and we also do not believe the statement of Dawood CW-1 because he was in- fact a prosecution witness and was given up as having been won over. When we have put the two versions one by the prosecution. and the other by the appellant is concerned, we think that the version put-forth by the prosecution is more plausible one. According to the FIR the complainant was present in the house of his paternal uncle namely Dawood CW-1 when the appellant also came there, as there was Khatam Sharif of the grandmother of the complainant. It was 1.00 p.m. when on the day of occurrence, Amjad Iqbal appellant had cut some branches of the trees belonging to the complainant party on which Daood CW-1 had an altercation with Amjad Iqbal who is maternal nephew of Dawood CW-1 on which Ibrar deceased gave abuses to Amjad and turned him out from his house. Ibrar deceased had no authority to abuse Amjad Iqbal to turn him out from the house of Dawood CW-1. It was prerogative of Dawood CW-1 who was maternal uncle of the appellant. Ibrar and Amjad Iqbal both are young people and Amjad Iqbal took it as a disgrace, so in order to take revenge of those abuses fired a single shot on the person of the deceased, which unfortunately proved fatal. We are of the opinion that it was a case of single shot and it was the deceased who disgraced the appellant by abusing him and turned him out from the house of his maternal uncle. These are the mitigating circumstances, hence the case for capital punishment is not made out. In these circumstances, though we maintain the conviction of the appellant under Section 302 (b) P.P.C. but convert the same into life imprisonment with the benefit of Section 382-B Cr.P.C. The compensation awarded by the learned trial Court, however, is upheld.
The Criminal Appeal No, 373 of 2005 stands disposed of accordingly. Death sentence is not confirmed. The Murder Reference is answered in Negative.