' MAZHAR IQBAL SIDHU, J.-- Muhammad Shaban appellant along with his co-accused Muhammad Khalid was tried by learned Additional Sessions Judge, Depalpur, District Okara in case F.I.R. No,580 of 2005 dated 16-10-2005 for the offence under sections 302/148/149, P.P.C. Registered at Police Station Hujra Shah Muqeem. The learned trial court vide judgment dated 3-11-2006 convicted and sentenced the appellant which reads as under:-- Under sec- tion 302(b)Death and to pay Rs.300,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default whereof to undergo six months' S.I.
2. Feeling aggrieved by the impugned judgment, the appellant filed appeal i,e, Criminal Appeal No,1698 of 2006, whereas the trial court sent reference i,e, Murder Reference. No,838 of 2006 seeking confirmation of death sentence awarded to the appellant. Both these matters shall be decided through this single judgment.
3. The brief facts of the prosecution case as set down in the F.I.R. (Exh.PA/1) are that on 17-10-2002 at about 4:00 p.m., Nazar Muhammad complainant along with his son Abdul Ghaffar, Muhammad Ashraf, Muhammad Mansha went to attend defasting party at the house of Muhammad Munir at Mauza Dahar. After attending Iftar party at about 7-00 p.m., they boarded on a Rickshaw. The complainant, his son Abdul Ghaffar and Muhammad Mansha were sitting on rear seat whereas Muhammad Ashraf was sitting on front seat of Rickshaw. When the rickshaw reached near the commission-shop (arhart) of Muhammad Shaban appellant/accused electric bulbs were emitting light in the bazar. There Muhammad Shaban, Muhammad Ashiq both armed with rifles, Muhammad Khalid armed with .12 bore gun along with unknown persons armed with fire arms were present. As soon as Muhammad Shaban saw them, he raised a lalkara and asked his co- accused that they should be killed, upon which Rickshaw driver out of fear accelerated its speed.
Muhammad Shaban accused made a fire shot with his rifle straight at them from the backside of the Rickshaw which hit on left front side of chest of Abdul Ghaffar who was sitting beside complainant. Muhammad Ashiq, Muhammad Khalid and two unknown persons also made fire shots on them with their respective weapons but they, were luckily saved. Abdul Ghaffar in wounded condition `was being taken by them to hospital Hujra Shah Muqeem but in the way he succumbed to the injuries. The motive behind the occurrence statedly was that there was a strife between Muhammad Shaban etc. And Munir Ahmed and Shaban appellant had suspected that the complainant party was supporting Munir Ahmed.
4. Dr.Rai Niaz Ahmed (P.W.i0) conducted the postmortem examination on the dead body of Abdul Ghaffar on 16-10-2005 and observed the following injury:--
(1) A lacerated fire arm wound 3/4 cm x 3/4 cm into going deep, margins inverted, at the front and upper part of left chest, 5 1/2 cm away from the left nipple at 12 0' clock position that is entry wound.
' According to the opinion of the doctor, the deceased got fire arm injury which caused severe haemorrhage, so, the cause of death in this case was haemorrhage shock which was sufficient in ordinary course of nature for a normal person; the injury was, ante mortem and caused by fire arm weapon and that the time between injury and death was immediate and between death and postmortem was about between 16 to 18 hours.
5. Initial investigation of this case was conducted by Abdul Rehman S.-I. (P.W.12). On 16-10-2005 in the evening he was on patrolling when Nazar Muhammad complainant appeared before him and got recorded his statement Exh.PA which was reduced into writing, read over to him and he thumb marked the same in token of its correctness and the same was sent to the police station for the registration of formal F.I.R. Thereafter he visited the spot, inspected the dead body, prepared injury statement Exh. PK, inquest report Exh. PL and sent it to the mortuary for postmortem examination under the escort of Abdul Majeed 602/C (P.W.8). After the postmortem examination last worn clothes of the deceased imbued with blood were taken into possession by him vide recovery memo. Exh.PD. He also recorded the statements of the P. Ws. Under section 161, Cr.P.C. And on 24-10- 2005 the investigation of this case was transferred.
' Then the matter was investigated by Muhammad Jamil, Inspector (P.W.11). On 30-11-2005, he arrested Shaban and Khalid accused. On 15-12-2005, Muhammad Shaban appellant led ro the recovery of rifle 8 MM P.4 lying in the Jisti box in the room of his residential house which was taken into possession vide recovery memo. Exh.PB. On the same day, Khalid accused also got recovered .12 bore gun P.5 which was taken into possession by him vide recovery memq. Exh.PC and made them in separate sealed parcels. During his investigation, Shaban and Khalid accused were found flagitious and challaned accordingly whereas accused Muhammad Ashiq was found dewy-eyed and his innocence was also verified by the DSP, Depalpur.
6. Finally the matter was placed before the learned trial' court and at trial the prosecution produced as many as twelve witnesses to prove the charge against the appellant and his co- accused.
7. The learned trial court also examined appellant under section 342, Cr.P.C. Who while answering to question "Have you anything else to say?", made the following reply:-- "I am innocent. The prosecution has fabricated a false version. There was a dispute of cleaning the street between women folk of my family on one side and the women folk of Munir Ahmed and Falik Sher on the other side, in the early hours of the day. At the night time, a Punchayat of residents of the village namely Muhammad Hussain, Abdul Shakoor, Shamoon, Mushtaq, Tufail, Saeed Ali, Ghulam Rasool, Nazar Hussain, Abdul Ghaffar, Muhammad Ali, Muhammad Hanif Muhammad Yaqoob, Abdul Haq, Zakir, Tufail, Shaukat Ali, Sarwar, Barkat Ali, Muhammad Hanif Ashraf, Zahoor Alam, Sail; Muhammad Ali, Suleman along with 25/30 other persons came to my Ahrat for settling the matter. I said to Punchayat that I do not want to any dispute with Munir Ahmed and Falik Sher and further said that I want to sell my Ahrat and house and I want to shift to any other village in order to settle the matter forever. In the meanwhile a rickshaw came and Abdul Ghafoor deceased along with Anait alias Anaiti, who was present in Rickshaw, started firing towards the Ahrat where I along with the members of Punchayat were sitting from one side and from opposite side Muhammad Munir and Falik Sher started firing towards my Ahrat and house. I and the members of Punchayat when in the courtyard of my house which was at the back of Ahrat and 1 bolted the main gate from inside. The assailants continued firing which the outer gate of Ahrat and house and four walls of my house. I in self-defence fired with .12 bore gun while standing in the courtyard of my house. Resultantly, the assailants fled away. It was darkness of the night. There was cross-firing between two sets of assailants Abdul Ghaffar and Anaiti from one side, Falik Sher and Munir from other side and in the darkness of the night Abdul Ghaffar received injury due to cross firing in between the two sets of assailants. Muhammad Ashiq and Muhammad Khalid were not present in the courtyard nor did they participate in any firing. I voluntarily appeared before the police and produced .12 bore gun to the police. During investigation conducted by Sardar Muhammad Jameel Inspector and Ch. Muhammad Azam Sindhu DSP, the members of the Punchayat who were eye-witnesses of the occurrence as well, they supported the plea taken by me and my plea was found to be correct by Sardar Jameel SHO and Ch. Muhammad Azam Sindhu DSP".
8. The appellant did not make statement under section 340(2), Cr.P.C. However, he produced Muhammad Mushtaq Ahmed as DW-1 in his defence. The learned trial court vide judgment dated 3-11-2006, convicted and sentenced the appellant as mentioned supra and acquitted co-accused, hence this appeal.
9. In support of the instant appeal, learned counsel for the appellant submits that the F.I.R. Has been lodged by the complainant by the delay of quarter to three hours and in the particular circumstances of the case is very much significant because during investigation it has transpired that the appellant had no motive against the deceased to commit his murder, in fact the deceased was murdered by some unknown persons during the night hours but the complainant party while acting upon the command of opponents has lodged, a false case registered against the appellant and his co-accused who have been acquitted by the learned trial court.
' Learned counsel, as to the motive has raised arguments that the farces allegedly took place in between Muhammad Shaban appellant and Munir Ahmed and others; in the said incident Abdul Ghafar deceased had absolutely no nexus but the obsession was wrongly rankeled in the mind of the complainant party but the deceased has never been found party to the incident of motive. It has further been submitted that no independent evidence has been brought on the record to prove the same and even otherwise the same is non-befitted in the prosecution story. Learned counsel has further submitted that during investigation and even during the cross-examination of complainant and Muhammad Mansha PW.2 it has come on surface that the party faction did exist between the parties before the occurrence but Muhammad Shaban has not been taking any part in the village group-rigging. Learned counsel lastly submits that the appellant had no direct motive to kill the deceased and in fact the same has been stretched by the complainant party in conclusion with the opponents of the appellant. Learned counsel submits that nothing has been brought on the record of any sort that ever any quarrel had taken place. Between the deceased and Muhammad Shaban appellant, in this way, the prosecution has miserably failed to prove the motive part.
' So far as the ocular testimony in this case is concerned, it has been brought on the record that P.W.1 is the real father of the deceased whereas P.W.2 is also related to the complainant party and the presence of these two P.Ws. At the relevant time is highly doubtful. Learned counsel submits that the alleged occurrence took place when the deceased along with other passengers were going and the Rickshaw was in motion when the deceased received fire shot injury but none from the passengers so much the Rickshaw driver appeared before the court, who was the most relevant and natural witness, to support the prosecution version. Learned counsel has further submitted that it has been brought on the record that during the night hours firing exchanged between two rival groups but unfortunately a stray bullet hit the deceased but later on after due deliberation and consultation the complainant has involved the appellant and his co-accused.
Learned counsel has further submitted that it is the case of prosecution that two unacquainted persons along with named accused since been acquitted and the appellant participated in the commission of crime, these two unknown persons were never traced out in this case and on the evidence of the complainant and the P.Ws. Being disbelieved co-accused have been acquitted, therefore, it is unsafe to rely upon these two interested and related P. Ws.Learned counsel has submitted that the instant case is unique in its nature where the independent corroboration is required to be brought on the record to support the interested and related P.Ws. But the same lacks. Learned counsel submits that it is highly difficult for the P.Ws. To view the occurrence when they were not apprehending any untoward incident or were alert of being attacked by anybody.
Learned counsel has further submitted that the complainant party in connivance with the police has changed the place of occurrence, the Rickshaw upon which the deceased was travelling was also not taken into possession by the police and the other passengers have not been joined investigation, in these circumstances the prosecution remained failed to establish the presence of the ,P.Ws. At the spot.
' Respecting to the evidence of recovery of crime weapon, it has been argued that the same is inclusive as no crime empty was taken into possession from the spot, furthermore the alleged rifle planted upon the appellant was his licensed rifle P.4 and there is no positive report of the ballistic expert construing that the shot was fired from its barrel and the report about its functioning is inconsequential.
' Learned counsel submits that the appellant has explained all the circumstances under which the occurrence took place and in the right of self-defence he made the fire shot but unfortunately the same hit the deceased resulted in his death, furthermore, DW-1 Muhammad Mushtaq has supported the version of the appellant, in these circumstances it has been prayed that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, thus he may be acquitted.
10. On the other hand, learned D.P.-G. Has controverted the arguments of learned counsel for the appellant and orchestrated his arguments that the parties were known to each other; that the occurrence did not take place in such gloomy hours of the night where identity of the accused persons was not possible; that the motive has not only been proved by the prosecution but its ascription specifically goes to the appellant to cause the death of the deceased; that during the trial the appellant has not denied the happening of incident and his own presence from the spot; that the P.W.S are natural and their propinquity with the deceased by itself is no ground to discard their testimony. It has further been submitted that both the eye-witnesses were cross-examined by the defence in a searching way but the defence remained wash out to elicit anything favouring the appellant. It has further been submitted that although there is no positive report of the weapon used in the commission of crime but the fact remains that the evidence of recovery is always taken as collateral not the primary evidence but at the same time, learned D.P.-G. Submits that the doctor has categorically made statement -that the. Death of the deceased occurred because of the fire shot, in these circumstances no ground exists to accept the appeal.
11. Hearkened and record scanned.
12. The occurrence took place on 16-10-2005 at 7-00 p.m. And on the night falling at 9-45 p.m., the matter was reported to the police and it has been brought on record that Abdul Ghaffar deceased did not succumb to the injuries at the spot and he was being taken to the hospital in an injured condition but unfortunately on the way he lost his breath. In this way the time consumed by the complainant party would not make any contrary effect to the prosecution case because it is always taken foremost task of the complainant party to save the life of an injured person and the same had happened in this case but the deceased unluckily could not survive. Therefore, we are of the view that no inordinate delay has been caused by the complainant party to the lodgment of the F.I.R.
13. As far as the motive of this case is concerned, we have observed after going through the entire material available before us that the deceased had never directly/indirectly made any farces with the appellant. Even otherwise, no such incident of motive has been proved on the record and the motive has not been supported by any independent evidence. The record is mute about the time of alleged incident of motive as to whether the complainant or anybody else from the side of the complainant party was present there P.W.1 complainant has categorically stated in his cross- examination that there was no enmity in between him, the deceased and the P. Ws. With the appellant or with any other villager. P.W.2 Muhammad Mansha has also admitted this fact that the deceased had not any sort of enmity with the appellant before the instant incident. The motive as alleged seems to be not fitted in the prosecution story and the same has not been proved by the prosecution.
14. The ocular testimony is not only inter se consistent but has been corroborated by the medical evidence. During the cross-examination no major flaw has been found in the prosecution version and mere in suggestive form some material has been brought on the record which by itself has no leg to stand. The evidence of two witnesses cannot be thrown out of the consideration just on the ground that they are related to the deceased and mere relationship by itself is no ground not to believe their evidence. It has been observed in so many cases in the past times, that the independent persons normally refrain to take part for either of the parties in such like grave incidents just to invite enmity with either of the parties. Of course in some cases independent corroboration is required but the same being not a rule of law can be importuned for the same but taking the same as rule of prudence it is required to be brought on record to strengthen the inimical evidence but this principle is not remarkable. Therefore, in these circumstances, we believe the testimony of these two eye-witnesses being natural, unison, lacking any major deliberate and dishonest improvement.
15. It is open and shut that the recovery of crime weapon in the murder case is regarded as corroborative to the direct evidence. No crime empty was taken into possession from the spot, the alleged 8 mm rifle recovered is a licensed one of the appellant as the memo of recovery shows it and naturally it would have to be in working order and the same result has been produced by the Forensic Science Laboratory, the report is mute as to when lastly a fire shot was made from its barrel. In these circumstances the recovery of alleged crime weapon being inconsequential is thrown out of consideration.
16. The medical evidence, however, is in line with the ocular account and deformed metallic piece was extracted from the corpus at the time of autopsy. Thus the same corroborates the ocular testimony and the same is believed.
17. In these circumstances we have drawn ,a conclusion that the prosecution has been able to prove its case against the appellant beyond any shadow of doubt. However, at the same time we have observed certain factors which have persuaded us not to uphold the capital sentence of the appellant. These are as follows:--
(a) No previous deep-rooted enmity has been found between the parties;
(b) The motive has not been proved by the prosecution;
(c) It is a case of single fire shot;
(d) The recovery of crime weapon lacks legal value being not supported by positive ballistic report, in this way the same cannot be used against the appellant.
18. On the basis of grounds discussed hereinabove, we are of the view that mitigating circumstances exist in the quantum of sentence of the appellant. In these circumstances the appeal filed by the appellant (Criminal Appeal No,1698 of 2006) is dismissed, however, his death sentence is converted into imprisonment for life. Benefit of section 382-B, Cr.P.C. Is also extended to him. However, the amount of compensation levied by the learned trial court shall remain the same.
19. Resultantly the death sentence awarded to the appellant IS NOT CONFIRMED and Murder Reference No, 838 of 2006 is answered under section 376, Cr.P.C. In the NEGATIVE.
Sentence reduced.