The present appeal is directed against the judgment dated 9.1.1998 passed by learned Sessions Judge, R,ajanpur whereby the appellant namely Ghulam Abbas son of Manzoor Hussain was tried by the learned trial Court in case FIR No, 162 dated 17.10.1995 U/S. 302 PPC Police Station City Rajanpur for committing Qatl-i-Amd of Mulazam Hussain and was convicted and sentenced to life imprisonment as Ta'zir.
2. The brief facts of the case according to the prosecution version are that on 17.10.1996 at about 1.30 p.m. Mulazam Hussain accompanied by his father Nazar Hussain, his brother Irshad Hussain complainant and his brother-in-law Wahid Bakhsh PW left their village Aqilpur for Rajanpur to make some purchases there. They alighted from the, wagon at Chowk Allah Abad and were proceeding to bazaar. Ghulam. When Mulazam Hussain and the PWs reached near Hazari Hotel, Rajanpur at about 2.30 p.m. all of a sudden Ghulam Abbas accused emerged there. The accused took out his revolver and raised a Lalkara to teach a lesson to Mulazam Hussain for abducting his sister Mst. Taj Mai. Mulazam Hussain tried to run away but Ghulam Abbas accused fired three shots from his revolver from backside, which hit on the back, head and waist of the deceased. Mulazam Hussain fell on the ground and Ghulam Abbas accused tried to run away but Irshad Hussain caught hold of him from his backside. The revolver, which the accused was holding in his hand, fell down on the ground and was picked up by Wahid Bakhsh PW. Nazar Hussain PW put Mulazam Hussain injured in a Tonga and took him to DHQ Hospital, Rajanpur. Irshad Hussain PW proceeded to the police station where he got registered the case against the accused. The injured succumbed to the injuries in the hospital on the same day.
The motive behind the occurrence as stated in the FIR was that Mulazam Hussain deceased and one Khadim Hussain abducted Mst. Taj Mai, sister of Ghulam Abbas accused about 11/12 years back. A case was also got registered against them for the abduction of the girl. Mulazam Hussain and Khadim Hussain remained in jail in that abduction case for sometime. Later on both of them were enlarged on bail but in the meantime, Khadim Hussain was done to death. It was alleged by the complainant that the accused still nourished grudge against the deceased and therefore, he murdered him by firing with his revolver.
3. After completion of investigation, the accused was challaned to Court to face trial. Formal charge under Section 302 PPC was framed against the accused, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined seven PWs.
4. PW.1 Dr. Aftab Ahmad Alvi, Medical Officer, DHQ Hospital, Rajanpur deposed that he conducted the medico legal examination of Mulazam Hussain on 17.10:1995. He further deposed that the patient was admitted in emergency'. and expired on the same day at 4.15 p.m. and he conducted post-mortem examination on the dead body of the deceased. According to the doctor, he found three injuries on the person of the deceased. In his opinion, cause of death was haemorrhage, which resulted in shock. All the three injuries were individually and collectively sufficient to cause death in ordinary course of life.
5. Muhammad Sami appeared as PW.2 and deposed that he prepared scaled site-plan Ex.PF, Ex,PF/1 and Ex.PF/2 in the scale of 30 feet equal to one inch on the direction of police and pointation of PWs. Talib Hussain PW.3 deposed that he identified the dead body of Mulazam Hussain at the time of post-mortem examination in hospital. PW.4 Ashfaq Ahmad constable No, 468 deposed that on 17.10.1995, he received the dead body of the deceased in the hospital and got his postmortem examination conducted. Irshad Hussain complainant appeared' as PW.5 and in his deposition, he reiterated the version as contained in his complaint. PW.6 Wahid Bakhsh is an eye-witness of this case, who deposed to support the version of the complainant. Farrukh Jehangir, AS I was the I.O. of this case, who appeared as PW.7 and deposed about the steps of investigation taken by him.
6. After the close of prosecution evidence, the statement of Ghulam Abbas accused was recorded under Section 342 Cr.P.C. According to him, one Afzal Kiyani had been murdered long ago wherein Allah Wasaya and Allah Ditta sons of Faiz Muhammad were involved. Allah Wasaya and Allah Ditta were real `Sotr' of Nazar Hussain complainant and his father Manzoor Hussain, who was carpenter by profession, had friendly relations with Afzal Kiyani deceased of that case. The accused of that case were under the impression that father of the accused had been supporting Afzal Kiyani and for this reason, Jam tribe got annoyed with him and the complainant was under the impression that his father had involved his `Sote in that murder case. His father shifted from the village but inspite of it, his father was involved in different cases including the present murder case. He further deposed that he is innocent and has been involved in this case due to political rivalry. According to him, the police arrested him from his house and not from the spot. He did not opt to make statement under Section 340(2) Cr.P.C. However, after conclusion of trial, the accused/appellant was convicted and sentenced by the learned trial Court, as mentioned above.
7. Learned counsel for the appellant submits that the prosecution has miserably failed to prove its case beyond any shadow of doubt. He contends that presence of PWs on the spot is doubtful and that the investigation was conducted dishonestly by the I.O. He has further argued that the FIR was not lodged promptly but after consultation and even after the conduct of post-mortem examination. He has strenuously argued that the motive has also not been proved. About the eye- witness account furnished by PW.5 and PW.6, he has laid his rest that they are closely related to the deceased and their testimony is not confidence inspiring and conviction cannot be sustained without independent corroboration. He has pointed out flagrant discrepancies occurring in the prosecution evidence to support his contention and that conviction is not maintainable on the ground that the incident had taken place in a busy locality but not a single person was produced to support the prosecution as regards participation of accused person in crime. He has further argued that the appellant cannot be punished because of his failure to prove the plea taken by him and that in case of any doubt, the accused was entitled to get benefit of doubt as a matter of right. He has strenuously argued that since the report of Forensic Science Laborator was not obtained, therefore, the alleged recovery of revolver from the accused is of no use and cannot be used as corroborative piece of evidence against him and finally that no reliance can be placed on the recovery. He has also argued that FIR cannot safely be relied upon when it was recorded after the spot inspection and preliminary investigation and that purpose of investigation.is to find out the truth and present it to the Court by way of admissible and relevant evidence and the Court is to protect as much innocent persons as to bring the guilty to justice and never to let the guilty escape because of carelessness, excess of zeal or negligence on the part of the I.O. It has further been argued that the shopkeepers of the place of occurrence were the natural witnesses but they were not produced by the prosecution. Further contended that since the prosecution withheld the evidence of natural witnesses, therefore, it is not safe to place reliance on chance witnesses. He has also argued that the eye-witness account cannot be safely relied upon as eyewitnesses though present at the spot at the time of occurrence were not produced before the Court at the trial. Learned counsel has further argued that ocular evidence was unreliable when eye-witness account does not fit in at all with descriptions given in the site-plan by the PWs. He has also argued that motive cannot corroborate ocular or circumstantial evidence and it merely shows that the assailant has cause to commit murder and has further submitted that motive was useful in appreciating and evaluating evidence but by itself no proof of charge and that evidence of motive was always a weak type of evidence and it is always unsafe to base conviction of accused on capital charge only on testimony of highly interested witnesses uncorroborated by independent evidence. He has strenuously argued that accused was not adult at the time of commission of offence, therefore, his case would fall under Sections 306 and 308 PPC and not under Section 302 PPC. He has referred Section 299-A PPC where adult has been defined as a person, who has attained the age of 18 years. He has submitted that the accused who was direct descendent of the Wali of the deceased could not be awarded punishment under Section 302(a), (b) & (c) PPC.
8. Conversely, learned Deputy Prosecutor General has referred to 1997 SCM R 1307 and argued that the camr is covered by Section 302(b) PPC and not Section 308 PPC as requirements of proof of Qatl-iAmd under Section 304 PPC are not fulfilled. He has vehemently argued that Sections 306 and 308 PPC are not applicable but would only be applicable only if its proof of Qatl-i-Amd liable to Qisas is available on the record.
9. Heard. Record perused.
10. The first point, which needs consideration and determination for decision of this case is whether the prosecution has proved its case of Qatl-i-Amd against the accused or not. In this view of the matter, the prosecution version was that the deceased had abducted the sister of accused about 11/12 years back with the help of his co-accused Khadim Hussain and according to PWs, they were coming to Rajanpur to make purchases and when they reached near Hazari Hotel, the accused attacked the deceased by firing with the revolver, who then was got injured on the spot and later on died in the hospital. To prove its case, the prosecution examined PW.5 Irshad Hussain and PW.6 Wahid Bakhsh. Both have stated that they were accompanying the deceased at the time of the occurrence. No doubt they are closely related to the deceased but mere relationship of the PWs with the deceased is not sufficient to discard their testimony provided the ocular account furnished by them was confidence inspiring. It was a broad day light occurrence, which took place at a busy road and the accused was apprehended on the spot by the PWs and was produced in the police station with the weapon of offence. Although some discrepancies have been brought into light by the learned defence counsel but those are so trivial in nature that no noticeable dent in the version and story of prosecution could be 'found. Nevertheless, the PWs were subjected to lengthy cross- examination but even then, nothing favourable to the accused could be had from them. It is indeed true that the recovery of weapon of offence is inconsequential as the revolver has not been sent to Forensic Science Laboratory for report but the ocular account furnished by PW.5 and PW.6 is consistent and confidence inspiring and that there appears no reason for these PWs to make untrue statement against the accused. Nothing has been brought on the record to show that they had animosity or they were inimical towards the accused or that they had made false statement to implicate the accused in a case of capital charge and as such, the prosecution evidence cannot be brushed aside merely on the ground that the recovery has not been proved in accordance with law if the other evidence is reliable and trustworthy. The ocular account furnished by PW.5 and PW.6 can safely be relied upon and made basis for conviction of the accused as their evidence does not suffer from legal infirmity as to cast any doubt on its veracity. It is also unusual that while some PWs were present at the spot but some official takes the injured to hospital as is happened in this case because the occurrence was committed in bazaar, therefore, the accused was apprehended by the PWs and the injured was removed to the hospital by Farrukh Jehangir ASI. It is in fact mentioned in the MLC that the injured was brought to the hospital by Farrukh Jehangir, ASI but this fact by itself is not sufficient to discard the testimony of the eye-witnesses whose evidence otherwise is confidence inspiring and does not suffer from any infirmity and that Farrukh Jehangir ASI deposed to before the learned trial Court that he proceeded to the hospital at the same time and it is just possible that the Medical Officer mentioned his name in the MLC instead of the name of the person, who had actually brought the deceased/injured in hospital. The injuries sustained by the deceased on posterior side of the body were also justified by the PWs as the accused has heralded his arrival at the spot and raised Lalkara, whereupon the deceased started running and the accused made fire the rear. As the deceased has tried to run away from there, therefore, in this state of inertia, the deceased had received the injuries from the behind. As far as the locale of injuries is concerned, it is resolved and it is held that there was no discrepancy to this effect.
11.Although the blood-stained earth was not taken into possession by the I.O. but that does not mean that the occurrence has not taken place at the stipulated place. One more aspect is also possible that as soon as the injured sustained injuries, he then and there removed to hospital leaving no imprint of blood at the spot. The apprehending of the accused by the PWs was also indicative of the fact that the PWs preferred to have legal recourse instead of injuring the appellant.
It is also a state of mind that when one is infuriated, the other would passively try to captivate or captivate to be taken into custody.
12.As far as the motive is concerned, it is far-fetched. As many as 11/12 years have since passed after abduction of the sister of present appellant by the deceased, therefore, re-action time of 11/12 years was sufficient to pacify the infuriation. The ocular account is in conformity with medical account.
13.Now the question for determination of conviction is undertaken. The school leaving certificate produced by the accused clearly depicts and shows that the accused was below the age of 18 years at the time of commission of offence and whether he has attained sufficient maturity or not anticipating the consequences of his act was a question of fact as well as law, which should have been decided by the learned trial Court with a clear cut finding, as the same is lacking in this case, therefore, it can be said that proof as required in either of the form specified in Section 304 PPC is not available, hence, the case would still fall under Section 308 PPC and not under Section 302(b)
PPC.
14. The accused was convicted on 9.1.1998 and his sentence was suspended by this Court on 14.2.2000, so it is due to lacuna in our system that after suspension of sentence of the appellant, today i,e, after about 11 years his appeal is being decided. It has also become clear that even after securing suspension of his sentence, the accused/appellant has made his representation for arguments on appeal today after about 11 years. This very important element and fact has come in my mind as there was a principle of legitimate expectancy of life, which though has been overruled by the August Supreme Court on account of delay in hearing the appeals but in this case as pointed out, the present appeal is being heard after the lapse of about 11 years, therefore, it would be reasonable to consider whether the accused has retrieved his normal pursuits of life as his sentence was suspended and though he was having the notice of his appeal being heard in future.
In this context, I see that though the accused was juvenile at the time of occurrence but now has attained sufficient maturity after lapse of 11 years, therefore, by altering the conviction from Sections 302(b) PPC to 308 PPC, the sentence of 15 years R.I, is found proportionate in the circumstances of this case, which is accordingly awarded to the appellant with benefit of Section 382-B Cr.P.C.
15. In the light of above, this appeal stands dismissed, however, the conviction and sentence of the appellant are altered as stated above. The appellant is on bail, so he shall be arrested and lodged in jail to serve out his remaining sentence.