MIAN FASIH-UL-MULK, J.---Shahzad appellant has filed Criminal Appeal No,88 of 2009 against the judgment and order of learned Additional Sessions Judge-IV, Mansehra dated 13-8-2009, whereby he was convicted under section 302(b), P.P.C. and sentenced to death with payment of Rs,3,00,000 as compensation under section 544-A, Cr.P.C. payable to the heirs of deceased, under section 324, P.P.C. to five years' R.I. and a fine of Rs,50,000 or in default to undergo S.I. for three months, under section 337-F(iii), P.P.C. to pay Daman to complainant Nasir to the tune of Rs,1,00,000 and in case of non-payment he shall be liable to the consequences under section 337-Y, P.P.C. and to two years'
R.I. whereas co-accused Muhammad Shaukat was acquitted. The learned Sessions Judge has sent Murder Reference No,11 of 2009 for confirmation of sentence. All the imprisonments were ordered to run concurrently and convict was given benefit of section 382-B, Cr.P.C. Both the criminal appeal and murder reference are disposed of by this single judgment.
2. Briefly stated facts of the case are that complainant Muhammad Nasir in injured condition reported the occurrence in Emergency Ward RHC Shinkiari to the effect that on the eventful day he along with his deceased uncle Muhammad Tariq came to Army Bazar Shinkiari for the purpose of grocery. He was getting his shave in the barber shop in Army Bazar while his deceased uncle was sitting on the bench inside the shop when at 1230 hours suddenly accused Muhammad Shaukat armed with stick entered into shop and instantly caught hold of complainant on chair while Shahzad alias Khanay appellant entered into shop armed with pistol and straight away started firing on deceased Muhammad Tariq. Complainant rose from the chair, appellant Shahzad also started firing at him with intent to kill him. The complainant was hit by his firing on right thigh, and sustained injury whereas his uncle, who was hit on front of his chest, sustained injury, fell on the ground and died. The complainant named Alamzeb barbar, Muhammad Younas and Muhammad Arif as eye-witnesses of occurrence.
3. At trial, after observing codel formalities, formal charge was framed against the accused, who professed innocence and claimed trial. The prosecution in support of its case examined fourteen witnesses in all.
4. On close of prosecution evidence, accused was examined under section 342, Cr.P.C., who pleaded false implication. He did not appear as his own witnesses on Oath nor produced evidence in defence. On assessm ent of evidence, the appellant was found guilty. He was convicted and sentenced as mentioned above whereas co-accused Muhammad Shaukat was acquitted.
5. Learned counsel for appellant vehemently contended that prosecution has produced interested and inimical witnesses and has withheld independent witnesses which prima-facie suggests that the occurrence has not taken place in the manner as stated by prosecution. It is urged on behalf of appellant that evidence produced before the learned trial Court did not justify conviction as the same is full of contradiction and discrepancies, which cast heavy doubt on the prosecution case.
The charge against appellant based on prosecution evidence cannot be held proved as per requirement of law. The appellant has been ascribed the role of single fire shot, which was never repeated and there was no intention to kill the deceased. Learned counsel concluded that prosecution has failed to prove its case beyond reasonable doubt and instead of extending benefit of doubt, the learned court has stretched the case in favour of prosecution, thus prayed for acquittal of appellant. In the alternate, if this court finds the appellant guilty of charge, he prayed for reduction of sentence as mitigating circumstances do exist for lesser punishment.
6. On the contrary, learned counsel for complainant argued that the trial Court has considered the entire evidence in its true perspective where no material discrepancies or contradictions were noticed. Learned counsel for complainant concluded that the prosecution has succeeded in proving its case beyond reasonable doubt against the appellant and learned trial court rightly convicted and sentenced him according to law.
7. Learned State counsel supported the impugned conviction and adopted the arguments advanced by counsel for complainant.
8. Admittedly, it is a broad day light occurrence. The convict appellant entered into shop duly armed with a pistol and as soon as he entered the shop, fired at Tariq on left side of his chest and thereafter fired second shot on complainant and fled away. The prosecution relied upon the testimony of P. Ws. of ocular account, recovery of blood, empties of .30 bore pistol and blood stained stick from the spot, the medical evidence, recovery of weapon of offence on pointation of accused/appellant and the matching FSL report about the recovered empties with the alleged weapon of offence. P. W.10 Muhammad Nasir complainant and P.W.11 Alam Zeb barbar, who are totally disinterested and natural witnesses of occurrence were examined and their statements inspire confidence. Although they were subjected to lengthy cross-examination but prosecution evidence remained unshattered. Except the concessionary statement of P.W.5, namely, Nasir Iqbal FC No,34 Police Post Lassan Nawab, who admitted in cross-examination that the dead body was lying near the door of the shop when they reached the place of A occurrence. No doubt we have noted infirmity and contradiction in the statement of P.W.5 but the same is not of such a nature which will imbalance the entire prosecution evidence and create doubt favouring the accused/appellant. There is sufficient ocular as well as circumstantial evidence supported by medical evidence, which reasonably connect the appellant with commission of offence. The learned trial Court has rightly convicted the appellant under section 302(b), P.P.C.
9. Now adverting to the alternate prayer on quantum of sentence, suffice it to say that no motive was advanced in the F.I.R. Actual cause of occurrence was not known. It appears that something abruptly had happened before occurrence which was deliberately suppressed by the prosecution.
Normal penalty for offence of murder is death but in appropriate cases where some extenuating circumstances are available, courts have discretion to award lesser punishment of imprisonment for life. It is an admitted position that there existed no background of any previous enmity or deep- rooted hostility between appellant and deceased. It is also significant that appellant fired only one shot and did not repeat it. All these factors cumulatively make out a case for Mitigation and accused deserves lesser penalty of life imprisonment instead of death, which would meet ends of justice.
10.Consequently, this appeal is partially allowed and while maintaining the conviction of appellant his sentence under section 302(b), P.P.C. is reduced to imprisonment for life instead of death while the remaining impugned judgment of conviction and sentence is maintained. Benefit of section 382-B, Cr.P.C. is extended to the appellant. Murder Reference No, 11 of 2009 is answered in negative.