Appellant Saeed Ahmad S/0 Abdul Rehman alongwith six other co-accused (since acquitted) was tried by the Additional Sessions Judge Burewala District Vehari in case FIR No, 158/1996 dated 13.09.1996 for offence under Sections 302, 324, 148/149 PPC registered at Police Station Sahuka, District Vehari and vide the impugned judgment dated 31.05.2004 was convicted under Section 302-B PPC and sentenced to imprisonment for life as "Tazir" with fine of Rs, 50,000/- under Section 544-A Cr.P.C. and in default whereof to further under R.I. for six months.
2. The prosecution in order to prove its case produced as many as 17 PWs. PW-1 is Ahmad Waseem Sheikh who produced site-plan as Ex.P-A being secondary evidence because the drawing was of his father who died on 3.5.1999. PW-2 to PW-5 and PW-9 supported the prosecution version as well as recovery. PW-6 was Muhammad Ishaq who transmitted sealed parcel to the office of Forensic Science Laboratory. PW-7 was Bashir Ahmad who identified the dead body of Aman deceased at the time of post-mortem examination, PW-8 Muhammad Aslam 738-C escorted to dead body of Aman deceased from the place of occurrence to RHC Shauka. PW-10 is Dr. Sajjad Ahmad Dhillion who conducted post-mortem examination on dead body of Aman deceased and examined medically Mst. Noor Sain PW-3 13.09.1996 at 2:00 p.m. He found one multiple lacerated wound on the back of fingers of right hand of Mst. Noor Sian (PW-3) which was kept under observation. He also endorsed the injury statement of Mst. Noor Sian (PW-3) Ex.PA/2 prepared by the I.O. According to the opinion of Medical Officer all the injuries were anti-mortem. Injury No, 1 was by fire-arm and entry wound, other were exit wound of fire-arm injury. PW-11 to P-17 are formal witnesses who deposed that they had taken the steps as assigned to them.
3. After the closure of prosecution evidence, the appellant was examined under Section 342 Cr.P.C. wherein he did not opt to appear as his own witness in disproof of the allegations levelled against him and attributed false implication. However, the plea of accused/appellant Saeed alias Sheeda in his statement under Section 342 Cr.P.C. was as under: "It was a blind murder and Aman deceased was not murdered in the way as the prosecution has alleged, and the story of the prosecution is false and fabricated. The witnesses were not present and they had not seen the occurrence. The prosecution story is concocted one and Aman was not murdered in the fashion as narrated by the prosecution with respect to file and place and manner of occurrence. Complainant party learnt about the death of Aman deceased in the morning and their relatives who are the accused of murder of my brother Mazhar Hussain, their families came there before, the registration of the case and as it was blind murder in a dark night, they all after consultation and concoction involved me and my father in this case so that to pressurize us not to pursue the murder case of my brother Mazhar Hussain. I am innocent and have been roped in due to this enmity in connivance with the accused party in the murder case of Mazhar Hussain. The PWs are not residents of the place of occurrence and due to enmity they have involved us in this case.
The PWs are related inter-se, interested inimical and partisan towards under section".
4. It is inter alia contended that the judgment of the learned Trial Court is illegal, contrary to the facts on the file and as such is liable to be set aside. No offence under Section 302 (b) PPC has been proved against the appellant; that the prosecution evidence is interested discrepant and unreliable and no reliance can be placed on such type of evidence; that the learned trial Court has erred in believing the prosecution evidence and disbelieving the defence version; that the defence version is more reliable and that the impugned judgment passed by the learned trial Court is unsustainable in the eyes of law. Prays that the appellant may be acquitted. In the alternate he prays that if the Court reaches the conclusion that it was not a case of acquittal in that eventuality, in view of mitigating circumstances and for the fact that ocular account as also the motive, part have not been believed by the learned trial Court, conviction may be altered from Section 302(b) to Section 302 (c) PPC and reduced to one which he has already undergone.
5. On the other hand, learned Deputy Prosecutor General with vehemence opposes the submissions made at bar by learned counsel for the appellant regarding acquittal, however, the prayer in reduction of sentence has not seriously been opposed.
6. Arguments heard. Record perused.
7. I find that the prosecution has tried to improve its case before the learned trial Court, some of the substantial facts were even introduced for the first time including some accused persons with specific role. There are also substantial contradictions in the statements of eye-witnesses. Motive part could also not be proved but still I am of the view that if the entire prosecution evidence is read together the same makes me to believe that it was the appellant who committed the murder of Aman deceased. I am also not in agreement with the learned counsel for the appellant that the injured PW and other witnesses being closely related, their evidence cannot be relied upon. By now it is well settled law that mere relationship of the witnesses with the deceased or the complainant per se would not be a sufficient ground for disbelieving their testimony. The learned trial Court therefore rightly believed the testimony of the eye-witnesses qua the present accused. The present case, however, to my mind has peculiar features. The prosecution has not come out with the whole truth and have also concealed substantial facts. The innocent persons were also involved in the case. Motive part could also not be proved. There is negative report from the Forensic Science Laboratory qua the .12 bore gun recovered from the appellant. Although the learned defence counsel with vehemence prays that it was a case of acquittal but on this point, law stood settled by the Hon'ble Supreme Court of Pakistan in its judgment reported as PLJ 2002 SC 1209, wherein it was held that all these factors could be considered as mitigating circumstances for reduction in sentence and acquittal cannot be based on such discrepancies, therefore, while respectfully following the law laid down by the Hon'ble Supreme Court of Pakistan in to supra, the conviction awarded to the appellant under Section 302(b) PPC is altered to Section 302 (C) PPC and the same is hereby maintained. The learned defence counsel has placed on record the details regarding the sentence so far served by the appellant, according to which as on 31.03.2008 the appellant had served out a sentence of 15 years 4 months and 20 days and by now according to learned defence counsel he has served out more than 17 years including remissions which contentions on the part of learned defence counsel have not been controverted by the learned Deputy Prosecutor General.
As far as quantum of sentence is concerned in view of mitigating circumstances, the same is reduced to one which he has already undergone, as the same in my view would meet the ends of justice. The penalty of compensation, in view of peculiar facts and circumstances of the case is also set aside. The appellant therefore shall be released forthwith if not required in any other case.
8. With these modifications in sentence this appeal is dismissed.