RAUF AHMAD SHEIKH, J.---Dilber Khan appellant has assailed the judgment dated 29-11-2005 passed by learned Additional Sessions Judge, Mianwali, in case F.I.R. No.175 dated 29-5-2005 under sections 302/34, P.P.C. Police Station City Mianwali (Sessions Case No.47 of 2005) whereby he was convicted under section 302(b), P.P.C. And was sentenced to death with an order to pay fine of Rs.1,00,000 to be paid to the heirs of the deceased as compensation and in case of default thereof to undergo S.I. For two years. The learned trial Court has submitted Murder Reference No.19 of 2006 under section 374, Cr.P.C.
Seeking confirmation or otherwise of the death penalty awarded to the appellant. Muhammad Ishaq complainant has filed Criminal Revision No.1020 of 2005 seeking enhancement of compensation. As all these matters are inter-connected and inter-linked so are being decided through this single judgment.
2. Briefly stated the prosecution version as set-forth in the F.I.R. (Exh. PG) recorded on the statement of Muhammad Ishaq son of Ghulam Muhammad, caste Darkhan, aged. About 25/26 years, resident of Mohallah Miana, Mianwali, is that on 29-5-2005 at about 3-45 p.m., he Tahir Iqbal son of Zafar Iqbal and Zafar Iqbal son of Din Muhammad, were present in front of the shop of Zafar Iqbal.
The appellant Dilber son of Muhammad Anwar armed with Pistol .30 bore along with an unknown person, son of Muhammad Anwar after making consultation with each other arrived there on Motorcycle CD-70. Immediately on arrival Dilber asked where Muhammad Farooq was and on this, the complainant replied that his brother Muhammad Farooq was at home. Both of them went to their house and in their sight. Dliber knocked the door. Muhammad Farooq brother of the complainant came out. The complainant along with his companions also arrived. Dilber said to Muhammad Farooq as to why he forbade Tahir Iqbal from roaming with him on which the unknown person said to his brother Dilber that Muhammad Farooq be killed. On this, Dilber made a straight fire on Muhammad Farooq, which hit him on the left side of chest, who fell down. The complainant and his companions tried to catch Dilber and unknown person but Dilber made two repeated fires on the complainant, which missed him. The occurrence was witnessed by the complainant, Tahir Iqbal and Zafar Iqbal. The accused persons fled away on their Motorcycle towards the West.
Muhammad Farooq was brought in an injured condition to Civil Hospital, Mianwali, where he died.
The motive was stated to be grudge nourished by Dilber because Farooq had stopped Dither from teasing Tahir Iqbal for immoral acts as the latter was related to the deceased.
3. The appellant and his co-accused Babar were sent up to face the trial. Babar was tried under the Juvenile Justice System Ordinance, 2000 and was acquitted. The appellant was charged under sections 302/324/34, P.P.C. He pleaded not guilty and claimed the trial.
4. The prosecution has produced 10 witnesses in support of its allegations. The medical evidence is adduced by Dr. Muhammad Khan (P.W.1), who conducted the autopsy of the dead body in DHQs Hospital, Mianwali, on 29-5-2005 at 8-30 p.m. He found following injury on his person:--
(1) A wound of entrance 1/2 x 1/2 cm on the supro lateral aspect of front of left chest,. 7 cm above the left nipple and 15 cm away from midline. There was no exit wound. There was no burning and blackening on the wound.
He opined that the death was result of injury No.1, which badly damaged the vital organ, left lung and its main blood vessel Pulmanary artery and vein and this injury was sufficient to cause death in the ordinary course of nature. The probable time between the injury and death was within 1/2 hour and between the death and postmortem was 3 to 5 hours. He proved the postmortem report (Exh.PA), pictorial diagrams (Exh.PA/1), injury statement (Exh.PB) and inquest report (Exh.PC).
According to him, one bullet was found from the dead body, which was sealed and the packet was given along with Police papers to the Constable.
5. The ocular account is furnished by Muhammad Ishaq and Tahir Iqbal. Muhammad Ishaq complainant appeared as P.W.8 and almost reiterated the contents of his statement (Exh. PG) and stated that the same bears his signatures. He added' that he did not know Babar so made supplementary statement in this regard. Tahir Iqbal (P.W.9) has stated that on 29-5-2005 at 3-45 p.m., he, Muhammad Ishaq and Zafar Iqbal P.Ws. Were standing outside his shop. Accused persons Dilber and Babar came there on Motorcycle. They stopped the Motorcycle near them. Dilber asked Muhammad Ishaq if Farooq was present at home, who replied in the affirmative. Both of them went to the house of Farooq. Dilber appellant knocked the door on which Farooq came out. Dilber accused was carrying Pistol .30 bore. He asked Muhammad Farooq as to why he had stopped him from having relations with Tahir Iqbal. Babar accused asked the appellant to kill Muhammad Farooq on which Dilber made a fire shot, which hit Muhammad Farooq on his chest. Thereafter Dilber made two shots towards the P.Ws. But the same did not hit them.
6. Both P.Ws.8 and 9 have also made statements regarding motive. The complainant has stated that 5/6 days prior to the occurrence, Tahir Iqbal P.W. Told Muhammad Farooq deceased that Dilber appellant used to tease him on which the deceased admonished the appellant. Tahir Iqbal (P.W.9) stated that Dilber accused used to visit his shop and tease him for evil purposes. He told the deceased, who asked the appellant to desist from his design.
7. Zafar Iqbal (P.W.7) has stated that he joined the investigation of the case on 13-6-2005. Dilber accused while in Police custody made a disclosure and led to the recovery of Pistol P-4 and on unloading the same, five bullets P5/1-5 were recovered from it. The Investigating Officer secured the same along with a Motorcycle P.6 and Registration Book P7 through memo (Exh.PF). Tahir Iqbal (P.W.9) has stated that the Investigating Officer secured blood-stained earth through memo (Exh.PH) attested by him and Zafar Iqbal P.W.
8. The investigation of this 'case was conducted. By Abdul Majeed, S.-I. (P.W.10), who stated that on 29-5-2005 he recorded F.I.R. On the statement of Muhammad Ishaq, which was read over to him and in token of its correctness, he put his signatures on the same. Thereafter he went to DHQs Hospital, Mianwali and prepared the injury statement (Exh.PB) and inquest report (Exh.PC).
Thereafter he inspected the spot and prepared the site plan (Exh.PJ). He secured the blood-stained earth through (Exh.PH) and last worn clothes of the deceased through memo (Exh.PD). The Draftsman presented site plan (Exh.PE and Exh.PE/1) to him on 1-6-2005 and he appended notes in red ink on the same. On 7-6-2005 he arrested Dilber accused, who made a disclosure on 13-6- 2005 during interrogation and led them to his house, from where he got recovered Pistol P-3 along with bullets P5/1-5, and he secured the same through memo (Exh.PF). He has proved the site plan of the place of recovery (Exh.PK). The prosecution has also produced the report of the Chemical Examiner (Exh.PI..) and the report of the Serologist (Exh. PM).
9. The appellant in his statement under section 342, Cr.P.C. Has denied the correctness of the allegations levelled by the prosecution and truthfulness of the witnesses produced by it. It is stated that the P Ws were not present at the spot and they have fabricated a false story with the help of Abdul Rashid, Advocate. It is stated that he was also not present at the time of occurrence nor he committed murder of the deceased. He contended that the deceased was a person of ill repute and bad character. 6/7 days prior to the occurrence and also on the fateful day, he intercepted his brother for commission of sodomy and dragged him in the lane of Mian Muhammad Akbar, where many persons had gathered, who tried to save Babar from his clutches so he received an injury with single pellet during grappling. He did not opt to appear as witness on oath under section 340(2), Cr.P.C. However, he produced his co-accused as D.W.1. Babar (D.W.1) stated that on the day of occurrence, he was going to his class fellow Aahad Miana and when arrived in front of his house, Muhammad Farooq caught hold of his arm and started talking indecently. He offered him money.
He raised hue and cry, which attracted a large number of people. They asked him as to why he was talking him on which the deceased slapped him. A grappling and scuffle started between the deceased and the other persons. They rescued him and asked him to go home. The scuffle continued and he heard the report of a fire shot. He went home. The appellant was not with him. It is further stated that one week prior to the occurrence also, while he was coming from the house of Aahad Miana, the deceased had stopped him but he started walking fastly and then informed Liaqat, Councillor, about this fact. Liaqat subsequently told him that he had talked to the deceased, who would not tease him in future. Again, two days prior to the occurrence, the deceased started speaking with him in filthy language and compelled him to accompany him to his Baithak' for illicit purpose and one Gogga rescued him.
10. We have heard the arguments advanced by Hafiz Khalil Ahmad and Haji Muhammad Anwar, Advocates, learned counsel for the complainant, Mr. Shahid Bashir Chaudhry, DPG, for the State and Dr. Abdul Basit, Advocate, learned counsel for the complainant and have perused the record with their able assistance.
11. Learned counsel for the appellant have vehemently contended that the memo (Exh.PD) shows that the last worn clothes of the deceased along with the sealed parcel, containing pellet were secured through it and Ameer Muhammad (P.W.5) has also stated that this contained pellet so the prosecution version that the appellant had made fire with Pistol .30 bore stands falsified and a serious doubt arises as to the correctness of the prosecution allegation; that in the F.I.R. It was stated that the complainant and P.Ws. Were standing in front of the shop of Zafar Iqbal whereas Tahir Iqbal (P.W.9) has stated that they were standing in front of his shop so the presence of the P.Ws. At the place of occurrence is improbable; that the recovery of the weapon of offence is highly doubtful because no independent person was associated during the recovery proceedings and the same has also no significance because no empty was recovered and no report of FSL is available; that D.W.1 has proved the appellant's contention regarding loose character of the deceased, who had tried to take the boy with an intention to subject him to unnatural lust and lost his life during scuffle with the persons, who tried to save him; that the presence of P.Ws., who are otherwise related to the deceased and inter se is improbable so they cannot be believed and that the motive as set up in the F.I.R. Was not proved and for this reason, the capital punishment could have not been awarded.
12. Controverting these arguments, the learned counsel for the complainant and learned DPG have urged that it was a broad-daylight occurrence, which was promptly reported, so there was no chance of any substitution, which otherwise is a very rare phenomenon; that no empty was recovered from place of occurrence so the non-availability of the FSL report is not fatal to the prosecution case; that the P.Ws. Have proved it beyond any doubt that the appellant was the person, who caused Qatl-e-amd of the deceased; that the weakness or even absence of motive is no ground to disbelieve the strong ocular account and that it was a cold-blooded murder and the appellant was rightly awarded the sentence, he deserved so no ground for interference in the judgment of the trial Court is available.
13. The site plan (Exh.PE) shows that the shop of Zafar Iqbal father of Tahir Iqbal (P.W.9) is at a distance of about 80 feet from the place of occurrence. The argument of the learned counsel for the appellant that in the F.I.R., it was mentioned that this shop belongs to Zafar Iqbal whereas P.W.9 has stated it is owned by him so the witnesses cannot be believed is without any force because a son may say that the shop of his father belongs to him. The statement of P.W.5 and contents of Exh.PD showing that the sealed parcel contained pellet does not disprove the prosecution version in any manner because the Doctor, who conducted the postmortem has categorically stated that he recovered a bullet from the dead body, converted it into a sealed parcel and handed over it to the Constable. The mentioning of pellet in Exh.PD appears to be result of some clerical mistake or ignorance on part of the Investigating Officer and in no manner casts any doubt about the veracity of the P.Ws. Both P.Ws.8 and 9 have no previous grudge, animosity or ill will against the appellant.
They have categorically stated that the appellant is the person, who had made fire on the deceased, which finally took his life. They have narrated the occurrence in a straightforward manner and cannot be disbelieved only due to their relationship inter se and with the deceased. It is true that the report of the Fn. Is not available as contended by learned counsel for the appellant but no empty was recovered from the place of occurrence and as such the prosecution case is not weakened on this score. The defence version that someone else had made the fire and a pellet hit the deceased is incorrect as bullet was recovered from the dead body and moreover the complainant is real brother of the deceased and there was no reason for him to implicate the appellant instead of someone else, had the appellant been not involved in commission of offence because the substitution is a rare phenomenon. It is, thus, proved through cogent and reliable evidence that the appellant is the person, who has caused Qatl-e-amd of the deceased. However, the motive stated in the F.I.R. Was grudge nourished over forbidding Tahir Iqbal by the deceased from roaming with the appellant. Both P.Ws.8 and 9 have not stated it as the motive in their statements. It was not proved that the deceased had ever teased Tahir Iqbal with evil designs as was stated by them. A new motive was also set up by these P.Ws. To the effect that the deceased used to visit the shop of Tahir Iqbal with evil designs, who informed Muhammad Farooq and he asked the appellant to desist from these designs. The events, which took place 5/6 days back are not mentioned in the F.I.R. And no cogent evidence in this regard has been produced. In these circumstances, we are of considered view that the prosecution has badly failed to prove the motive set up in the F.I.R. It is true that the weakness or the absence of the motive does not cast doubt about the prosecution case and it should not fail on this ground but once the motive is set up and the same is not proved then the prosecution must suffer for it and it is a strong mitigating circumstance as is held in Noor Muhammad v. The State and another (2010 SCM R 97). Moreover the appellant was statedly 19 years old at the time of his statement under section 342, Cr.P.C., which was recorded on 21-11-2005. The occurrence took place about 5/6 months prior to the said date so the appellant would be only few months above 18 years.
His raw youth, coupled with the fact that the motive as set up in the F.I.R. Was not proved makes out a strong ground for awarding sentence other than capital punishment. In view of this aspect of the matter, we are convinced that the sentence awarded to the appellant is on higher side.
14. For the reasons supra, we accept the appeal to the extent of sentence only and while maintaining the conviction under section 302(b), P.P.C. Reduce the sentence from death penalty to the imprisonment for life. Benefit under section 382-B, Cr.P.C. Is extended to the appellant. As the fine is not a prescribed sentence under section 302(b), P.P.C., so the learned trial Court erred in imposing the same with capital punishment. Under section 544A, Cr.P.C., in cases whenever a person is convicted of an offence in the commission whereof the death, etc. Is caused, the Court shall pass an order for payment of compensation, unless orders otherwise for reasons to be recorded. The judgment of the learned trial Court regarding payment of fine of Rs.1,00,000 is not warranted under the law so the appellant would pay a sum of Rs.1,00,000 as compensation to the heirs of the deceased under section 544-A, Cr.P.C. The judgment of the learned trial Court regarding payment of half of fine to the heirs of the deceased is also not sustainable. The complainant has filed Criminal Revision No.1020 of 2005 seeking enhancement of the compensation. As an amount of Rs. 1,00,000 would be reasonable so the order of the Court regarding payment of 50% of fine i.e. Rs. 50,000 is modified and the total amount of compensation would be paid into the heirs of the deceased. This amount would be recoverable as arrears of land revenue, if not paid and in case of non-payment and non-recovery thereof, the appellant would undergo S.I. For six months. Murder Reference No.19 of 2006 is answered in the negative. Criminal Revision No.1020 of 2005 is accordingly allowed in above terms. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.