' SHAHID HAMEED DAR, J The appellant Anjum alias Anja was tried, by the learned Additional Sessions Judge, Sialkot, for committing the murder of Imran deceased, the paternal cousin (chachazad) of the complainant and attempting on the life of Aashir Masih (C.W) in case F.I.R.
No,04 of 2004 dated 6-1-2004 under section 302, 324, P.P.C. Registered at Police Station Kotwali, Sialkot. By virtue of judgment dated 31-3-2005, the learned trial judge found the appellant guilty of the charge, convicted him under section 302(b), P.P.C. And sentenced him to death with order to pay Rs, 1,00 ,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default thereof to undergo rigorous imprisonment for six months. The learned trial Court, however, acquitted the convict-appellant under section 324, P.P.C. As the injured witness Aashir Masih (CW) forgave the appellant and compounded the offence during trial.
2. The convict-appellant has filed Criminal Appeal No, 128-J of 2005 against his conviction/sentence, besides, there is a usual reference under section 374, Cr.P.C. (Murder Reference No,682 of 2005) for confirmation' or otherwise of the sentence of death, awarded to the appellant, transmitted by the learned trial Court. We propose to dispose of both the matters together through this single judgment.
3. The crime is alleged to have been committed at 5-30 p.m., on 6-1-2004, in the area of Christian Street adjacent to Greenwood Street, Sialkot, situated within the jurisdiction of Police Station Kotwali, Sialkot, which is at a distance of about 1 kilometer, towards west from the place of occurrence.
4. The facts, as unfurled by Shaheen Eishrat Gill (P.W.4) in complaint Exh.PC are that on return to his house at 5-30 p.m on 6-1-2004 he asked his wife to prepare the meal; his paternal cousins and other relatives lived in the same mohallah where he lived; in the meanwhile, he heard someone shouting and calling bad names in the street so he came out of his house to inquire about the situation, where he saw his paternal uncle (chacha) George Masih and paternal cousin (chachazad) Aamir standing under the light of a lit electric bulb; within his view Anjum alias Anja (appellant) pulled out a pistol from his dabb (fold) and fired straight at Imran (deceased) which landed at his forehead and pierced across the head posteriorly; the same bullet also whistled past Aashir Masih, a passerby, injuring his left cheek and nose; Imran died at the spot. The occurrence was witnessed by the complainant (P.W.4), Aamir (P.W.6) and George Masih P.W. (not produced).
' The motive behind the occurrence was that Anjum alias Anja (appellant) used to tease girls at the corner of the street; he was checked by Imran (deceased) a few days back, having nursed grudge against him, the appellant committed his murder.
6. Hassan Muhammad (P.W.12) having learnt about the incident, went to Civil Hospital, Sialkot along with other police-officials, where, Shaheen Eishrat Gill, complainant submitted an application (Exh.PC) qua the crime before him, which was transmitted to the Police Station Kotwali, Sailkot for registration of formal F.I.R. (Exh.PC/1), he examined the dead body and prepared the injury statement (Exh.P1), drafted an application (Exh.PJ) for postmortem, examination, prepared inquest report (Exh.PK) and handed over the dead body of Imran to Babar Rafique 1412/C (P.W.2) for its postmortem examination; he reached the place of occurrence, inspected the same, prepared visual site plan (Exh.PL), collected blood by means of cotton vide memo Exh.PD; secured two crime empties (P-7/1-2) of .30 bore from the spot vide memo Exh. PF; after postmortem examination, he took into possession last worn blood-stained clothes of the deceased vide memo Exh.PB; he got prepared the site plan in scale (Exh.PG and Exh.PG/1) qua the place of occurrence, by Zia-ulHassan, draftsman (P.W.11); he arrested accused-appellant on 8-1-2004 and interrogated him, who, pursuant to his disclosure led to the recovery of .30 bore. Pistol (P-1) on. 12-1-2004 from his house vide memo Exh.PA; he drew the site plan Exh.PA/1 qua the place of recovery of pistol .30 bore. On completion of investigation, he challaned the accused.
7. At trial, the prosecution in order to prove its case produced 12 witnesses in all. Aashir Masih was examined by the court as a C.W. The ocular account was furnished by Shaheen Eishrat Gill (P.W.4) and Aamir (P.W.6). Both, of them also stated about the motive part of the incident. Hassan Muhammad S.-I. (P.W.12) and Muhammad Mansha 173/C (P.W:1) deposed about the recovery of pistol .30 bore (P-1) from Anjum alias Anja-appellant; Hassan Muhammad, S.-I. (P.W.12) furnished an account of investigation conducted by him in this case. Rest of the evidence is more or less formal in nature.
8. The medical evidence was presented by Dr.Fayyaz Ahmad (P.W.5), who, performed autopsy on the dead body of lmran Masih deceased at 8-30 p.m. On 6-1-2004 vide postmortem examination report Exh. PE (pictorial diagrams Exh.PE/1) and found following injuries thereon:-
(1) A punctured lacerated oval wound measuring 1 cm x 0.8 cm, left side of forehead, 1 cm from midline above eyebrow with inverted margins (entry).
(2) A lacerated exit wound 2 cm x 0.5 cm, on left occipital area of skull with everted margins.
' Both the injuries (1 and 2) were ante mortem in nature and caused by firearm.
' The cause of death in this case was the excessive haemorrhage and shock due to extensive damage to the brain matter leading to cardio-pulmonary arrest, caused by above said injuries.
' The probable time that elapsed between injuries, and death was "instantaneous" and between death and postmortem examination, it was, approximately "3 to 4 hours".
9. On the same day, at 5-30 p.m., Dr. Fakharul Zaman, P.W.10 medically examined Aashir Masih injured vide medico-legal report (Exh.PH) and observed following injuries on his person:--
(1) A lacerated brushing injury measuring 2 cm x 1/2 cm x skin deep, front and left side of nose with inverted, blackened and charred margins.
(2) A lacerated punctured wound measuring 1 cm x cm x 1/2 cm front of left cheek close to injury No,1 with margins inverted, blackened and charred.
(3) A lacerated punctured wound measuring 1.25 cm x 0.7x cm. DNP, lateral aspect of left cheek with evaded margins.
10. Learned Public Prosecutor tendered in evidence report of Chemical Examiner (Exh.PM), reports of Forensic Science Laboratory (Exh.PN) and (Exh.P.0) and announced the prosecution case closed.
11. In his statement under section 342 Cr.P.C. The appellant controverted the prosecution case and emphatically professed his innocence while recording reply to the question, "Why this case against you and why the P.Ws. Have deposed against you" as follows:-- "The case was registered against me due to suspicion and the P.Ws. Have deposed against me on the instance of complainant being close relatives of the deceased."
The appellant-accused neither appeared as his own witness under section 340(2), Cr.P.C. To repel the charge against him nor he opted to produce any evidence in defence.
12. The learned trial Court after hearing learned counsel for the parties and having taken into consideration the evidence available on record passed the impugned judgment, whereby, the appellant was convicted and sentenced in the aforementioned terms.
13. We have heard the learned counsel and gone through the file.
14. Learned counsel for the appellant submits that prosecution had badly failed to prove the charge against the appellant beyond reasonable shadow of doubt; the occurrence took place in the darkness of the night and the presence of a lit electric bulb at the corner of the street at the relevant time of occurrence could not be proved by the prosecution; the evidence of recovery of pistol .30 bore is inconsequential as the crime empties and pistol were sent to the office of Forensic Science Laboratory together after the arrest of the appellant; the motive set up by the prosecution went begging as the prosecution could not produce any evidence in this regard; the witnesses of ocular account rendered contradictory and discrepant statements which could not be believed against the appellant to base conviction thereon; all the inconsistencies in the statements of the witnesses have been resolved in favour of prosecution which is a patent illegality as it is always the accused who should be extended the benefit of each doubt; the most important prosecution witness Aashir Masih was withheld during trial by the complainant/prosecution as he refused to back the false prosecution version so he was examined as a CW by the learned trial Court; the impugned judgment has been passed on conjectures and surmises which suffers from non- reading and misreading of evidence, hence, it may not he sustained.
' Alternatively being a case of motive having gone unestablished capital punishment is not warranted.
15. Conversely, learned Deputy Prosecutor-General Punjab assisted by learned counsel for the complainant submits in unison that the prosecution brought home the guilt of the accused beyond all shadows of doubt through trustworthy ocular account duly corroborated by the medical evidence, the proven motive, and the evidence of recovery of pistol .30 bore which is supported by a positive report of Forensic Science Laboratory, Punjab, Lahore (Exh.PN); the impugned judgment has been passed with sound reasons which may be sustained.
16. Shaheen Eishrat Gill (P.W.4) testified to the prosecution story being present there as it was just close to the residential house of his paternal uncle where the deceased was fired at by the appellant-convict and murdered Aamer P.W.6 and George Masih P.W. (not produced) were also present there at the crucial hour. Aashir Masih (CW) was a passer-by who got injured during the occurrence. Detailing the ocular account inclusive of the motive impetus, he (P.W.4) deposed that the appellant's pistol-shot landed on the forehead of the deceased and left his head posteriorly; the appellant made another fire shot which hit the nose and cheek of the above said passer-by Aashir Masih (CW); Imran fell down badly wounded and succumbed to the injuries at the spot; the deceased was standing in the street at the time of occurrence and the venue was lit with the light of an electric bulb. The complainant made an improvement in, his testimony when he stated about the repeated fire-shot by the appellant-convict during the occurrence. He stammered in his testimony when he stated that his house was not situated in the street where the occurrence took place and that he lived at a distance of about 500 yards from the spot besides adopting the version that he was present in the house of his paternal uncle at the relevant time of occurrence which was situated in the street where the occurrence took place. He appears to have been baffled a bit while explaining the aforesaid situation but he did not err in establishing his presence at the scene of occurrence at the relevant time.
17. Amir P.W.6, another witness of ocular account furnished almost the same details qua the occurrence with the version that the appellant had made two fire shots, one landing at the forehead of Imran deceased and the other on the nose and cheek of Aashir Masih, the passer-by (CW). He also stated about the same motive as deposed about by the complainant (P.W.4).
18. The injured witness Aashir Masih was not produced by the prosecution. Learned trial Court, however, summoned him as a CW in the interest of justice. He in fact had not effected compromise with the appellant and forgiven him by showing intention that he did not wish to prosecute him nor did he object to his acquittal for the offence of having launched a murderous assault on him. He, in his testimony stated that he suffered serious injuries when, all of a sudden a bullet hit his face. He concluded that he fell unconscious after receipt of injuries and he was told by someone that the fire shot made by Anjum alias Anja (appellant) had hit him. He was cross-examined by both the sides and it was established that he had been injured during the occurrence through a pistol shot fired by the appellant and that Imran had died in the same occurrence.
19. Having gone through the entire evidence we are not persuaded by the contentions urged by the learned counsel for the appellant because the prosecution case stands fully proven through the confidence-inspiring ocular account furnished by Shaheen Eishrat Gill (P.W.4) and Aamir (P.W.6) besides the statement of injured CW Aashir Masih, though, he had forgiven the appellant-convict during trial. The above said witnesses explicitly attributed the fatal fire shot to the appellant, whose presence at the venue of occurrence at the relevant time stands established. The ocular account stands fully corroborated by the medical evidence inter alia as to the timings mentioned by the medical officer Dr.Fayyaz Ahmad (P.W.5) in the postmortem examination report Exh. PE and by Dr.Fakhar-ul-Zaman (P.W.10) in MLR (Exh.PF-I). Some of the discrepancies pointed out by the learned defence counsel are inconsequential being trivial. The fact that the venue of occurrence was flooded with the light of an electric bulb has not been disputed by the defence. The line of cross-examination adopted by the defence is also indicative of presence of the appellant at the place of occurrence along with the deceased, when the occurrence took place. The relevant excerpt of the testimony of Shaheen Eishrat Gill (P.W.4) is reproduced hereunder:--- "it is incorrect to suggest that deceased Imran and accused Anjum used to drink together I was at a distance 3/4/5 feet away from the accused Anjum. It is incorrect to suggest that they were best friends. It is incorrect to suggest that the accused and deceased Imran were drunkened on the day of occurrence and being influence of wine the pistol of deceased Imran had a fire which hit on his forehead and he died"
' Aamir P.W.6 was also tested with identical line of cross-examination. The. Relevant portion of his testimony is important:-- "It is also incorrect to suggest that there was some other private persons also present at the place of occurrence except the aforesaid persons which I have mentioned in my statement. It is correct that Ashir Masih was also present at the place of occurrence at the time of occurrence.
Volunteered he was passing nearby. It is incorrect to suggest that only Aashir Masih has witnessed the occurrence who was also injured in this occurrence.
' It is incorrect to suggest that while the deceased Imran and the accused had exchange of abuses, they grappled each other. Volunteered the deceased could not get time/opportunity to grapple with the accused in the same way none of the present at the place of occurrence got opportunity/time to interfere in the quarrel between the deceased and the accused. . It is incorrect to suggest that on the day of occurrence Imran deceased and the accused present in court came out of a house after being drunknened. It is further incorrect to suggest that being drunknened, under the influence of wine, by chance the loaded pistol of the deceased, operated by the hands of the deceased and a fire shot hit the deceased and resulted into his death."
20. In his statement under section 342, Cr.P.C, the appellant however, did not stick to the aforesaid line of defence and changed it to one of denial simpliciter. The ocular account is trustworthy and worth-reliance having been duly corroborated by the medical evidence.
21. Insofar as the recovery of pistol .30 bore P-1 at the instance of the appellant-convict is concerned, it does little good to the prosecution's case despite having been found wedded with the crime empty vide Forensic Science Laboratory Report Exh.PN, for the reason that it reveals the receipt of the parcels of crime empty and that of pistol .30 bore on the same day i,e, on 14-1-2004, six days after the arrest of the appellant-accused. The probability cannot be ruled out that transmission of the parcel of the crime empty had been purposely delayed till the arrest of the accused by the Investigating Officer so as to manoeuvre a positive report from the Firearm Expert, after having fetched an empty by firing through the pistol (P-1) allegedly got recovered by the accused. This particular piece of evidence means nothing to the prosecution's case.
22. Insofar as the raison d'etre is concerned, it could not be established during trial nor was any evidence led by the prosecution during investigation to prove the allegation that Imran deceased had ever checked the appellant so as to stop him from teasing the girls of the area. Even otherwise, the motive part of the prosecution case has not been put to the appellant in his statement under section 342, Cr.P.C. Law requires that each incriminating circumstance must be put to the accused in his statement under section 342, Cr.P.C. So as to afford him an opportunity to explain his position.
A left out piece of incriminating circumstance cannot be used against an accused to base conviction thereon. The motive as alleged by the prosecution in the instant case therefore, becomes a redundant piece of evidence which cannot be used against the appellant as an incriminating piece of evidence.
23. The nutshell of the above discussion is that the appellant's conviction being unexceptionable is hereby sustained. We, however, find ourselves in agreement with the plea in the alternative, raised at the bar by the learned counsel for the appellant-convict, hinting at non-establishment of the set-up motive, being a mitigating factor, capital punishment is not attracted. The inconsequential evidence qua recovery of pistol P-1 at the instance of the appellant, is another determinative ractor, calling for reduction in the sentence of the convict-appellant.
24. Therefore, partly allowing the appeal (Criminal Appeal No,128-J of 2005), maintaining the appellant's conviction and the compensation amount, the awarded death sentence is commuted to imprisonment for life, with the benefit contemplated by section 382-B, Cr.P.C.
' The term of imprisonment, in case of default in payment of the compensation amount shall be six months' S.I. Instead of six months' R.I.
25. Answering the Murder Reference No,682 of 2005 in the Negative, the death sentence is not Confirmed.
Sentence reduced.