' SH. NAJAM-UL-HASAN, J.---Muhammad Jan, appellant was tried by the learned Additional Sessions Judge, Shakargarh, District Narowal in case F.I.R. No, 159 dated 12-5-2004 under sections 302/337F(iv)/337-L(2), P.P.C. Registered at Police Station Shahgharib. At conclusion of the trial, the learned trial Court vide judgment dated 31-5-2005 convicted Muhammad Jan, appellant under section 302(b), P.P.C. And sentenced him to death. The appellant was also directed to pay Rs.1,00,000 to the legal heirs of the deceased as compensation under Section 544-A, Cr.P.C. Or in default thereof to suffer six months' S.I. The appellant was also convicted under section 337-F(iv)
P.P.C. And sentenced to undergo three years' R.I
2. Feeling aggrieved of the impugned judgment, the appellant has filed Criminal Appeal No, 1110 whereas the State has approached this Court by way of Murder Reference No, 322 of 2005 seeking confirmation of death sentence awarded to Muhammad Jan, convict. Both the matters being interconnected are disposed of together through this single judgment.
3. Briefly stated the facts of the prosecution case are that Mst. Rukhshanda Bibi alias Nani was married with Muhammad Jan three years back. Due to strained relations she filed suit for dissolution of marriage in the Court of Judge Family Court, Shakargarh. On that day the case was fixed for hearing and after attending the court the . Complainant along with her daughter Mst.
Rukhshanda Bibi came back to their house. On 12-5-2004 at about 3-30 p.m., the complainant along with Arshad Ali, Muhammad Riaz and Rukhshanda Bibi (daughter) were sitting in the courtyard of the house. Suddenly Muhammad Jan, appellant came there while armed with pistol .30 bore in one hand and Tappa in the other hand. Muhammad Jan, appellant said Mst.
Rukhshanda Bibi to teach her a lesson for getting divorce. Muhammad Jan, appellant dragged the daughter of the complainant outside the house in street and fired a straight shot with pistol which hit on left side of the head of Mst. Rukhshanda. The complainant tried to rescue Mst. Rukhshanda Bibi from the clutches of the appellant, Muhammad Jan, appellant inflicted two Tappa blows on the left leg of the complainant. Mst. Rukshanda Bibi succumbed to.The injuries at the spot.
4. During the investigation the appellant was arrested on 31-5-2004 and on 13-6-2004 he led to the recovery of Pistol .30 bore (P-1) along with five alive bullets (P-1/1-5) which were taken into possession vide recovery memo (Exh.PB). On the same day, the appellant led to the recovery of Tappa (P.2) which was taken into possession vide recovery memo (Exh.PC). Finally the investigating agency upon completion of legal formalities submitted challan before the learned trial Court where prosecution produced ten witnesses to prove the charge against the appellant, out of them Bashiran Bibi complainant (P.W.5) and Muhammad Riaz (P.W.) appeared as eye witnesses of the occurrence, whereas Dr. Shamim Akhtar Nadeem (P.W.) produced the medical evidence.
5. Learned trial Court also examined appellant under section 342, Cr.P.C., who stated that he is innocent and has been falsely implicated in this case; P. Ws are inter se related to the deceased and the complainant and they have enmity with him due to the suit for divorce, so they have deposed against him; they are inimical and interested witnesses. Neither the appellant made statement under section 340(2), Cr.P.C., nor produced any evidence in his defence. After appraisal of evidence available on the record, the learned trial Court vide judgment dated 31-5-2005 convicted and sentenced the appellant as narrated earlier, hence, this appeal.
6. Learned counsel for the appellant while challenging the legality of the impugned judgment states that there is an unexplained delay of three hours in lodging the F.I.R. Which alone is sufficient to discredit the contents of the same; as per prosecution case the occurrence in this case took place in front of the house of the deceased and the complainant but the site plan prepared by the draftsman negates the presence of the witnesses at the time of occurrence; bare perusal of the F.I.R. Reveals that the eye-witnesses kept on seeing the whole occurrence like spectators and they did not bother to step forward to rescue the deceased and this conduct of the witnesses clearly indicates that had they been present at the spot they would have gone ahead in order to save the life of the deceased but this was not done by them. Learned counsel for the appellant relied on the case reported as Liaqat Ali v. The State (2008 SCM R 95) that it is unnatural that closely related witnesses will not try to save the deceased. Learned counsel further contends that the medical evidence contradicts the ocular account because the nature of injury on the person of the injured does not co-ordinate with the weapon with which the appellant was allegedly armed. Learned counsel further contends that allegedly the appellant was armed with pistol at the relevant time and fired at the deceased but during the spot inspection, the investigating officer did not send any crime weapon, thus the recovery of crime weapon without its matching with any crime empty is not sufficient to show that the said weapon was used during the occurrence. Learned counsel further submits that one of the injury on the person of the injured was found to be caused with blunt weapon, but no blunt weapon was used during the occurrence and this fact alone is sufficient to discard the prosecution case. Learned counsel relied on the case reported as Muhammad Akram v. The State (2009 SCM R 230) single doubt is sufficient for disbelieve the prosecution case. Learned counsel maintains that this case is a product of dishonest investigation and benefit of the same should be given to the appellant.
7. On the other hand, learned Law Officer assisted by the learned counsel for the complainant states that the place of occurrence in this case is the house of the deceased and the complainant; that the presence of the witnesses at the place of occurrence is absolutely natural and no other witness was required when the occurrence has initiated in the house of the deceased and the witnesses were resident of the same house; that the appellant was known to the witnesses and as such the identity of the appellant is not in dispute; that the F.I.R. Was registered after three hours of the occurrence and postmortem examination of the deceased was conducted within five hours of the demise of the deceased as such it rule out the possibility of concoction and manoeuvring in the case; that non-availability of crime empty cannot be considered as fatal to the prosecution case because the occurrence has taken place in the street so there is a possibility that the same was taken away by some passersby after the occurrence and before the arrival of the police; that presence of blood stained earth indicates the site of the occurrence i.e, in front of the house of the deceased; that the appellant is the only accused mentioned by the complainant in this case and it is well-settled that substitution by the close relatives of the deceased while leaving the real culprit is a very rare phenomenon, thus, in view of the cruel act of the appellant he has been rightly given the full dose of death sentence by the learned trial Court.
8. We have heard the arguments of learned counsel for the parties and have gone through the record.
9. The deceased was the wife of the appellant and there was separation between them and matter regarding divorce was pending in the court for the last almost a year. On the day of occurrence, it was the date of hearing of the said suit. The complainant and the deceased had attended the court and had come to home and the witnesses have come to them to inquire about the court proceedings. The matter regarding the pendency of the suit is admitted by the defence. The prosecution case is that the appellant came while armed with pistol and TAPPA and entered into the house in the presence of the witnesses. He dragged the deceased from the house, took her to the street and fired a shot on her head. The complainant tried to rescue her and in that process the appellant gave her two injuries with TAPPA on her leg. The occurrence has taken place just in front of the door of the house from where the blood stained earth was taken by the police. The deceased and the injured were taken to the hospital. The complainant got recorded her statement at 5-45 p m. And the case was registered in the police station at 6-45 p.m. The police station was at a distance of 9 kilometers from the house of the complainant and the deceased, so it can be said that the case was reported within a period of two hours and fifteen minutes. The complainant Bashiran Bibi mother of the deceased was medically examined by the doctor in the hospital and he found two injuries on her leg, one with the sharp-edged weapon in which her bone was exposed and the other with blunt weapon which was a contusion. The allegation was that the appellant gave a TAPPA blows on her leg. So far as the injuries on the person of the deceased are concerned, the doctor has observed the same to be the result of the fire-arm. The direction of the injury is down upward but the doctor has also mentioned that underneath the injury the skull bone was fractured. So, there is a possibility after hitting the skull the bullet has changed its path and has exited from the upper part of the skull. In these circumstances, the medical evidence qua the deceased is concerned, the same is in line with the ocular account. The deceased was taken to the hospital but in the way she died and her postmortem was conducted just after three hours of recording statement of the complainant. Such a promptitude in conducting the postmortem leads to one inference that F.I.R. Was registered promptly and time mentioned in the F.I.R. Was correct.
There was no much time for concoction and manoeuvring for making the false story. In this case there is only person i.e, the appellant who has duly been named in the F.I.R. As an accused and he was known to the witnesses. The occurrence has taken place in the broad-daylight so identity of the appellant is not question at all.
10. The motive put forward by the prosecution was the dispute between the husband and the wife.
A suit for dissolution of marriage was filed by the deceased. The contention of the learned counsel for the appellant that the said suit was pending for the last one year and no untoward incident took place during this period, so there was no occasion for the appellant to commit the murder at that stage. It has come in evidence that on the day of occurrence suit for dissolution of marriage filed by the deceased was fixed for hearing. The deceased and the complainant had come back after attending the court proceedings and were sitting in the courtyard of the house along with other witnesses when the occurrence took place. The proceedings of the suit filed by the deceased were not produced. However, there may be a possibility that on that date some important thing may have happened in that suit. The thing remains that it was the date of hearing on which occurrence took place and it has got some relevancy with this case. So we think that motive of the case has been fully proved by the prosecution.
11. So far as the recovery of incriminating articles is concerned, the pistol and TAPPA were recovered from the appellant on his pointation and disclosure. No doubt the said TAPPA was not found to be stained with blood and there was no empty of the pistol recovered from the place of occurrence.
The fire was made in the street and police came at the place of occurrence after three/four hours so there is every likelihood that the empty was taken away by some passersby. The recovery of pistol and TAPPA from the appellant gives some support to the prosecution case as the injuries found on the person of the deceased were the result of a pistol fire. The prosecution has proved its case through the ocular account. The complainant Basiran Bibi was the mother of the deceased and was an injured witness. She received two injuries on her leg: one is sharp-edged injury which exposed her bone and the other is with blunt weapon. She was medically examined and the time coordinates with the time of this occurrence. She was inmate of the same house and her presence at the place of occurrence is natural and is fully proved from the injuries found on her body. She has appeared in the court and made a categorical statement against the appellant. The contention of the learned counsel for the appellant that presence of blunt weapon injuries on the leg of the injured cannot be the result of TAPPA and as such the ocular evidence is in contradiction with the medical evidence has no force as the same is belied from the medical evidence. P.W.7 Riaz was cousin of husband of the complainant. He has fully explained the reasons of his presence at the place of occurrence and has made a statement just in line with that of the complainant. No reason for false implication of the appellant has been brought on record by the defence although these witnesses were thoroughly cross-examined during trial. So, in these circumstances, we think that the prosecution has fully proved the case against the appellant. We do not find any reasons to differ with the findings of the learned trial Court qua the conviction of the appellant on the charges framed against him.
12. So far as the quantum of sentence of the appellant is concerned, we have observed that the appellant entered into the house of the complainant with weapon and did not kill the deceased then and there rather he dragged her out in the street and fired at her which resulted in her death.
This situation leads to an inference that there is a possibility that the appellant wanted to take his wife back without her consent and for that he dragged her in the street but when she got herself released and tried to run the appellant fired at her which resulted into her death. The injuries on the person of the mother of the appellant who was trying to rescue her also lead to same inference.
The appellant fired a single shot, and did not repeat the same. There was no other motive available on record and no special circumstance was brought on record which could have been the result of incident on that date. So in the absence of any such circumstance, the appellant is entitled to some exception. The accused is entitled to benefit of doubt even while determining his intention to commit an offence. The appellant was young man of 23/24 years and the honourable Supreme Court in many cases has held that the young age of an accused can be considered as a mitigating circumstance to award him lesser sentence. In these circumstances, the award of death sentence in this case would not' be justifiable. Accordingly while maintaining the conviction of the appellant under section 302(b), P.P.C. We convert his sentence into that of imprisonment of life with the benefit of section 382-B, Cr.P.C. The appellant shall pay the compensation on the same terms and conditions as ordered by the learned trial Court. The conviction and sentence of the appellant on the charge under section 337-F(iv), P.P.C. Is maintained. The sentence of imprisonment on both the charges shall run concurrently.
13. With the said modification in the impugned judgment, the appeal filed by the appellant (Criminal Appeal No, 426 of 2005) is hereby dismissed.
14. Resultantly, death sentence awarded to Muhammad Jan, appellant is not firmed Reference (M.R. No,322 of 2005) is answered in the Negative.