Kh. Muhammad Sharif, C.J.--Riafat Khan 'appellant was involved in case bearing FIR No, 225 dated 28.04.2004 under Section 302 PPC, Registered at Police Station Air Port District Rawalpindi and was tried by the learned Addl: Sessions Judge, Rawalpindi who vide judgment dated 14.03.2005 convicted the appellant under Section 302(b) PPC and sentenced him to death and to pay compensation of Rs, 3,00,000/-, to be paid to the legal heirs of the deceased under Section 544-A Cr.P.C. or in default thereof to further undergo six months S.I.
2. This judgment will dispose of Crl. Appeals No, 53 & 133 of 2005 titled Riafat Khan Vs. The State" Crl.
Rev. No, 48 of 2005 titled Tabassum Hussain Vs. Riafat Khan" (for enhancement of compensation) and Murder Reference No, 254 of 2005 for confirmation or otherwise of death sentence of the appellant Riafat Hussain sent by the learned Trial Court.
3. Brief facts of the case as disclosed by Tabassum Hussain complainant are that he and Nazakat Hussain were running a shop as Mughal Autos, Chaklala, Sch.No, 3, as Motorcycle Mechanic. On 28.4.2004 his brother Nazakat Hussain went to nearby shop of Habat Khan from his shop to get some spare parts of motorcycle and when his brother was coming back after getting the same from the shop of Habat Khan towards his own shop at about 12.30 p.m., he heard the voice of fire.
He and Zubair rushed towards the same and they saw that Riafat Khan having a pistol in his hand, while boarding in a taxi car decamped and his brother was lying in injured condition on the mettled road who succumbed to the injuries on his way to hospital. His brother Nazakat Hussain was murdered by Riafat Hussain by fire.
Motive for the occurrence as narrated in the FIR was property dispute between the accused and complainant party.
4. The investigation of this case was taken over by PW.11 Liaquat Ali S.I. He, on receipt of information reached RGH Hospital, Rawalpindi, recorded statement of Tabassum Hussain Ex.PE, drafted a complaint and sent the same to Police Station through Asghar Ali HC for formal registration of FIR Ex.PE/1. He inspected the dead body, drafted application Ex.PH for post-mortem examination and thereafter prepared the inquest report Ex.PG. and handed over the dead body to Bilal Ahmad constable for escorting the same to DHQ Hospital for postmortem examination. He inspected the place of occurrence, recovered an empty of ..30 bore pistol (P-5), which was secured vide recovery memo. Ex.PB, He secured the blood-stained earth from the spot vide memo. Ex.PA. He took into possession of last worn clothes of deceased vide memo. Ex.PJ. He got prepared the site-plan Ex.PD.
He arrested the appellant on 7.5.2004 and the appellant while in police custody got recovered pistol (P-3) along with four live cartridges P-4/1-4 and secured the same vide memo. Ex.PK. He completed the legal formalities and challenged the appellant.
5. At the trial, the prosecution in order to prove its case produced 11 witnesses in all, thereafter, learned DDA after tendering in evidence report of Chemical Examiner Ex.PM, and that of F.S.L Ex.PN 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.
6. Learned counsel for the appellant submits that PW-9 Dr. Imtiaz Ahmad Chaudhary, who conducted the post-mortem examination on the dead body of the deceased Nazakat Hussain stated that dead body was brought to the DHQ Hospital, Rawalpindi at 1.30 p.m. by Bilal Ahmad Constable while time of departure of dead body from RGH Hospital Rawalpindi is 2.30 p.m.; that the complainant has made dishonest improvements before the learned Trial Court which are apparent at page 21 of the paper book; that it was story of the complainant Tabbasum Hussain PW-7 that the deceased had taken tea with him but no tea was found in the stomach of the deceased; that it was the case of prosecution that the deceased was followed by the appellant then the injury should have been on the back which is not there; that the prosecution has failed to prove the motive.
7. Learned counsel then refers to the site-plan Ex. PL and submits that the complainant stated that there was curve on the road but in the site-plan there is no such curve; that in this case no spare parts were recovered from the spot though it was the story of the prosecution that the deceased had brought spare parts from the shop of his brother; that it was an unseen occurrence and the eye-witnesses were not present there, so it is a fit case for acquittal.
8. Learned DPG assisted by the learned counsel for complainant 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. Learned counsel has relied upon PLD 1964 SC-26, 2008 SCM R 688 to contend that in case of single accused substitution is extremely rare phenomenon.
9. They next contended that post-mortem was concluded at 6.30 p.m. and at that time last worn clothes were handed over to Bilal Ahmad Constable; that the report of Forensic Science Laboratory is positive in nature because empty was dispatched to the office of Forensic Science Laboratory before the recovery of pistol. Learned counsel submit that as far as single shot is concerned, they placed reliance upon 2005 SCMR 426 and 2008 SCM R 796. It is lastly submitted that the prosecution has proved its case against the appellant beyond any shadow of doubt and there is no mitigating circumstance.
10.We have heard the learned counsel for the parties and have gone through the record with their able assistance.
11.In the instant case the occurrence had taken place on 28.4.2004 at 12.30 noon within the revenue estate of Chaklala Scheme-III which is at a distance of 1 and half kilometer from the Police Station Air Port District Rawalpindi while the matter was reported to the police outside the police Station at 2.15 p.m. and on the same day formal FIR (Ex.PE/1) was recorded at 2.50 p.m. by Muhammad Basharat S.I. PW-6.
12.The complainant in this case is Tabassum Hussain PW-7, who is real brother of Nazakat Hussain deceased. PW-8 is Habat Khan eye-witness of the occurrence, who is an independent witness. One crime empty was recovered from the spot which was taken into possession by. the I.O. vide memo. Ex.PB, blood-stained earth was taken into possession vide memo. Ex.PA. The appellant was arrested on 7.5.2004. Pistol Ex.PK was recovered on 10.05.2004 on the pointation of appellant.
Report of Fire Arms Expert. is Ex.PN. PW-9 is Dr. Imtiaz Ahmad Chaudhary, who conducted post- mortem examination on the dead body of Nazakat Hussain deceased on 28.4.2004. Time between injury and death is immediate and time between death and post-mortem examination is within 4 hours.
13.We may state here that it is a case of broad day light occurrence. The appellant is named in the FIR with specific role. FIR was promptly lodged. Two eye-witnesses including the real brother of the deceased namely Tabassum Hussain PW-7 and Habat Khan PW-8, an independent witness appeared before the learned Trial Court and supported the prosecution case. In this case ocular account is fully corroborated by the medical evidence. Then there is report of Forensic Science Laboratory available at page-11 of the paper book. The crime empty was received in the office of Fire Arms Expert on 6.5.2004 while the pistol was sent on 15.5.2004 and the report is to_the effect that "the crime empty of .30 bore marked as C was examined and compared with the test empties prepared from the pistol of .30 bore body signed and it was found that the crime empty of .30 bore marked as C had been fired from the pistol of .30 bore body signed".
14.So, in our considered opinion prosecution has proved its case against the appellant beyond any shadow of doubt. There is no question of substitution, why real brother of Nazakat Hussain would falsely implicate the appellant in place of actual culprit. It is totally un-natural, unbelievable and not plausible.
15.However, there are mitigating circumstances in this case which calls for lesser punishment. We may state here that the complainant before the learned Trial Court in his examination-in-chief at Page-21 Paragraph-2 stated that the accused present in Court came, to our shop, who is our relative as well and he was served with a cup of tea. If this was the position that the accused was served with a cup of tea, then what happened immediately before the occurrence no-body tells us from the prosecution side. More over the deceased was not an "masood-ud-dum". He was involved in rape case, sodomy case and not a person of good character. It is also a case of single shot. The fire was not repeated. Immediate cause of murder is not known and the prosecution has failed to tell us about the same.
16.In this view of the matter, while maintaining the conviction of the appellant under Section 302(b) PPC we convert the death sentence into life imprisonment. Sentence of compensation is upheld. Benefit of Section 382-B Cr.P.C. is also extended to the appellant. Death sentence is not confirmed. Murder Reference is answered in negative.
17.With the above modification in sentence, the appeal stands dismissed.
18.Criminal Revision No, 48-2005 for enhancement, of compensation is dismissed.