' IJAZ AHMAD CHAUDHRY, J.--Amjad Farooq appellant was convicted under section 302(b), P.P.C. As Taz'ir vide judgment dated 22-2-2005 rendered by the learned Additional Sessions Judge, Sahiwal and sentenced to death for committing `qatle-amd' of Riaz Ahmad deceased with direction to pay a sum of Rs,1,00,000 to the legal heirs of the deceased by way of compensation under section 544- A, Cr.P.C. And in default of payment thereof to undergo six months' S.I. However, through the same judgment, co-accused namely, Mushtaq Ahmad and Sarfraz were acquitted of the charges by the learned trial court while extending benefit of doubt to them. Amjad Farooq appellant has' challenged his conviction and sentence before this Court through Criminal Appeal No,126 of 2005 while Allah Ditta petitioner-complainant has preferred Criminal Revision No,117 of 2005 for enhancement of compensation amount and both these matters have been heard by us along, with Murder Reference No, 212 of 2005 sent by the learned trial court under section 374, Cr.P.C., seeking confirmation of the sentence of death passed by the learned trial court against Amjad Farooq appellant. We propose to decide all these matters jointly through the present consolidated judgment.
2. The brief facts as narrated in the F.I.R. (Exh.PA/1) by Allah Ditta complainant (P.W.1) are that on 1- 11-2003 at about 8-30 p.m., the complainant along with his son Qutab Ali (not produced) and his nephew Yaqoob (P.W.2) came to the house of his sister for enquiring about her health. All three were talking while sitting in veranda. In the meanwhile, his other son Riaz Ahmad (deceased) also came there after saying his 'Travih prayer' after some minutes. Amjad Farooq appellant, Mushtaq Ahmad and Sarfraz, both acquitted accused came on the door of the house of his nephew Yaqoob (P.W.2). The door was open and there was light in the street and the premises. According to the complainant, Musthaq Ahmad gave voice to his son to come and hear them. When Riaz Ahmad (deceased) came near the door, Amjad Farooq appellant raised a lalkara that he be not spared whereupon Mushtaq Ahmad acquitted accused took out pistol from his 'naipha' and fired shot at Riaz Ahmad deceased which did not hit him. Riaz Ahmad deceased ran back but Amjad Farooq appellant and Sarfraz acquitted accused also took out carbine .12-bore from the 'naipha' of shalwar and fired shot at Riaz Ahmad deceased. The fire of Amjad Farooq appellant hit Riaz Ahmad deceased on the back of his right shoulder while the shot of Sarfraz acquitted accused hit Riaz Ahmad deceased on the right side of his face and Riaz Ahmad deceased breathed his last on the spot. On their hue and cry all the accused fled away along with their respective weapons and the occurrence was witnessed by the complainant along with Qutab Ali and Yaqoob P.Ws.
3: The motive behind the occurrence was stated to be the accused had suspicion that Riaz Ahmad deceased had illicit relations with Mst. Tarzana Bibi, sister of Amjad Farooq appellant.
4. After usual investigation challan was submitted in the Court and at the commencement of the trial the learned trial court after supplying copies of the documents required under section 265-C, Cr.P.C. To the appellant and his co- accused framed a charge against them to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as thirteen witnesses support of its case and the ,appellant in his statement recorded under section 342, Cr.P.C. Controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. However, in reply to a question that 'Why this case against you and why the P.Ws. Have deposed against you", stated as under:- "It is a false case. All the P. Ws. Are closely related inter se and also with the deceased. They have made false statements against me and my co-accused due to enmity. The alleged eye-witnesses were not present at the spot at the time of occurrence. It was an un-witnessed occurrence and blind murder. I have been involved in this case due to enmity. I was present in my house at Farid Town Sahiwal at the time of occurrence and I produced the defence evidence during the investigation."
' However, neither the appellant nor his co-accused had opted to make statements on oath under section 340(2), Cr.P.C. But they produced Muhammad Yaseen as DW-1 in their defence.
6. Upon conclusion of the trial, the learned trial court after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt convicted and sentenced him as mentioned and detailed above. Hence, all these matters before this Court.
7. Learned counsel for the appellant contends that both the eye-witnesses were related inter se and with the deceased closely and as such they were interested witnesses who had not seen the incident and they had made false statements; that Saeed Akhtar, Draftsman (P.W.6) during the cross-examination admitted that houses of Allah Ditta complainant and Qutab P.W. Were not shown in the site plan as these were not pointed out to him by the P.Ws. That both the eye- witnesses were chance witnesses and their presence at the spot was doubtful; that F.I.R. Has been recorded with the delay of four hours without any explanation; that the police station was at a distance of 11 miles and the incident had taken place in the month of November; that both the eye- witnesses have been falsified on the point that Sarfraz co-accused, who has been acquitted by the learned trial court had also fired and his fire hit on the cheek of the deceased, but according to the postmortem report no firearm injury was found on the cheek of the deceased and there was only abrasion on the forehead, so the eye-witnesses have contradicted the medical evidence. However, the learned counsel for the appellant at the last does not challenge the conviction of the appellant and prays for reduction in the quantum of sentence as case of the prosecution itself is that there was suspicion that sister of Amjad Farooq appellant had illicit relations with Riaz Ahmad deceased and the incident had taken place due to this reason.
8. On the other hand, learned counsel for the complainant and the learned Additional Prosecutor- General appearing on behalf of the State have maintained in unison that heinous offence had been committed by the appellant; that both the eye-witnesses had no motive to falsely implicate the appellant in the present case; that both the eye-witnesses had sufficiently explained their presence at the spot at the. Time of occurrence who had no enmity to falsely implicate the appellant by letting off the real culprit; that the eye-witnesses remained consistent on material points regarding the place of occurrence and the manner in which the occurrence had taken place; that the medical evidence also supported the prosecution version; that recovery of weapon has been effected from the appellant and the motive has also been proved, hence, the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt and the appeal filed by the appellant may be dismissed.
9. We have heard the learned counsel for the parties and also perused the record with due care and caution.
10. The occurrence in the present to the prosecution had taken place at about 8-30 p.m. On 1-11- 2003 within the area, of Mauza Bashiran Kharal, 14 miles towards West from Police Station Noor Shah District Sahiwal and the matter was reported by Allah Ditta complainant (P.W.1) while making his statement (Exh.PA) to Riaz Ali Minhas, S.-I. (P.W.13) at Sarwar Chowk at 11-30 p.m. On the same night, on the basis of which formal F.I.R. No, 520 of 2003 (Exh.PA/1) was subsequently registered under sections 302/34, P.P.C. On 1-11-2003 at 12-45 p.m, and as such the F.I.R. In the present case has been recorded with the delay of four hours without any explanation. P.W.11 Shafqat Ali, S.-I.
Stated that after recording the statement of the complainant he prepared the injury statement as well as the inquest report of the deceased and sent the dead body of the deceased to mortuary for autopsy. On the other hand, postmortem examination on the dead body of the deceased was conducted by Dr. Azhar Abbas Naqi, Medical Officer, RHC, Noor Shah District Sahiwal (P.W.7) on the next day at 12-45 p.m. And according to him the probable time between death and postmortem was 12/24 hours, which is sufficient to draw an inference that the F.I.R. Was not recorded with such promptitude as claimed by the prosecution and this could be a reason for conducting postmortem examination with such delay and such an F.I.R. Cannot be used as a corroborative piece of evidence and the prosecution evidence has to be seen with utmost care and caution.
11. To prove the ocular account the prosecution produced Allah Ditta complainant (P.W.1) and Muhammad Yaqoob (P.W.2). P.W.1 Allah Ditta complainant was father of Riaz Ahmad deceased while Muhammad Yaqoob (P.W.2) was maternal nephew of the complainant. No doubt mere close relationship of the eye-witnesses inter se or with the deceased is no ground for declaring them as interested witnesses, but at the same time the courts have to see as to whether they were truthful witnesses and could have seen the occurrence. Both the eye-witnesses have made statements that Amjad Farooq appellant while armed with .12 bore carbine had fired at Riaz Ahmad deceased hitting on the backside of right shoulder whereas Sarfraz (acquitted accused).Was also armed with carbine, fired at the cheek of Riaz Ahmad deceased. Mushtaq acquitted accused was armed with pistol who had made indiscriminate firing. It has been noticed that the eye-witnesses have not spoken the whole truth as the injury attributed to Sarfraz acquitted accused was an abrasion and not firearm injury. Even otherwise, the allegation against. Muhstaq acquitted accused was that he had made ineffective firing but no empty was collected from the spot and both Mushtaq and Sarfraz have been acquitted by the learned trial court through the impugned judgment. As far as Amjad Farooq appellant is concerned, he has been specifically attributed firearm injury with carbine on the deceased on the back of his right shoulder. The postmortem examination report also supports the ocular account to the extent of involvement of the appellant. Even otherwise, from the perusal of the record it transpired that the eyewitnesses had no motive to falsely implicate the appellant in the present case if he had not participated in the occurrence. Both the eye-witnesses remained consistent on material points and we find that the learned trial court has rightly relied upon the statements of both the eye-witnesses. Even otherwise, the learned counsel for the appellant has not seriously challenged, the conviction and prays for reduction of scntence.
We have found that the prosecution evidence is also silent that as to what had taken place immediately before the occurrence, which resulted into commission of the same. The motive could not be proved. The appellant had not repeated the fire, The P. Ws. Had made exaggerations for the involvement of the other accused as well and they were capable of making false statements by changing the circumstances of the case. In such circumstances we find that it is a fit case to exercise the discretion by awarding lesser punishment to the appellant. As a result of the above discussion, the death sentence awarded to the appellant is not confirmed and the same is converted into imprisonment for life. However, the compensation of Rs,1,00,000 payable to the heirs of the deceased and in default of payment thereof to further undergo' S.I. For six months will meet the ends of justice, which is maintained and benefit of section 382-B, Cr.P.C. Is also extended to the appellant. With these modifications in the quantum of sentence only, Criminal Appeal No,126 of 2005 is dismissed.
12. Consequently, Murder Reference No,212 of 2005, is replied in the negative and the sentence of death passed by the learned trial Court against Amjad Farooq appellant is not confirmed.
13. In view of above, no question arises for enhancement of compensation, which has already been awarded by the learned trial Court adequately, and Criminal Revision No,117 of 2005 seeking the said relief is dismissed.
Sentence reduced.