' ABDUL SAMI KHAN, J.---Appellant Nawab Din alias Kalu has assailed the judgment dated 21-6- 2007 passed by the learned Additional Sessions Judge, Karor, District Layyah in case F.I.R. No, 78/06 dated 14-5-2006 registered under section 302, P.P.C. At Police Station Karor through Criminal Appeal No, 275 of 2007 whereby he has been convicted and sentenced as under:--
(1) Under section 302(b), P.P.C. To death as Tazir with compensation to the tune of Rs,2,00,000 to be paid to the legal heirs of Imam Bakhsh deceased under section 544-A, Cr.P.C. And in default thereof to further undergo S.I. For 6 months.
' The learned trial Court has also submitted Murder Reference No, 376 of 2007 for confirmation or otherwise of the death sentence of the appellant. We propose to decide both these matters through this single judgment.
2. Precisely, the prosecution story set forth in the F.I.R. Is that the complainant Faiz Muhammad is agriculturist by profession and on 14-5-2006 he was irrigating the sunflower crops along with his sons when Nawab Din alias Kalu armed with gun .12 bore came out from the sunflower crop from southern side and from a distance of 7/8 karams raised lalkara to Imam Bakhsh alias Billa to give him a taste for imposing allegation of theft on him. Upon which Imam Bakhsh alias Billa turned around and look at Nawab Din alias Kalu, he fired from his gun which landed on front of the chest of Imam Bakhsh, son of the complainant who fell down on the earth. Upon hue and cry of the complainant Muhammad Saleem and Muhammad Bakhsh sons of the complainant attracted to the spot who chased the accused but he succeeded to flee away from the scene of the crime by taking shelter of his gun. Imam Bakhsh alias Kalu son of the complainant succumbed to his injuries and died at the spot. The occurrence was witnessed by the complainant and the other above mentioned eye-witnesses. The motive set up in the F.I.R. Is that on the preceding night of the occurrence the accused Nawab Din alias Kalu accused had stolen wheat of the complainant party upon which the deceased reprimanded him for which he was done to death.
3. After setting the law into motion by the complainant the investigation of this case was assigned to Irshad Ahmad, S.-I. (P.W.12) who after recording the statement of the complainant inspected the spot, recorded the statements of the witnesses under section 161, Cr.P.C. Collected the crime-empty which was made into sealed parcel Exh.P-J, prepared rough site-plan Exh.PK, arrested the appellant on 21-5-2006, recovered double barrel gun .12 bore at his instance and took the same into custody vide recovery memo Exh.PG and found the appellant guilty in this case submitted challan to the learned trial Court.
4. In order to prove case against the appellant, the prosecution produced as many as 12 witnesses.
Faiz Muhammad (P.W.10) and Muhammad Saleem (P.W.11) furnished the ocular account and they also deposed about the motive. Irshad Ahmad, S.-I. (P.W.12) conducted investigations in this case.
Saeed Ahmad (P.W.9) stated about recovery effected from the appellant during the investigation of this case. The medical evidence was provided by Dr. Muhammad Jalal (P.W.7) who examined the deadbody of Imam Bakhsh alias Billa and found the follOwing injuries on the dead body:-- "Multiple pellets marks were present on the front chest more on left side, on neck and chin.
Corresponding marks were also present on Qameez more on left side.
INTERNAL EXAMINATION. Neck veins and left carotid artery were ruptured. Left chest cavity was full of blood and left lung was badly injured. Right ventricle and right atrium were ruptured. Small amount of blood was also present in right chest cavity. Left anterior chest was perforated by pellets. Left ploura was injured on multiple sites. Lyranx and trachea were normal Right lung was midlely injured. Left Lung was badly injured and collapsed. Pericardium, right atrium and right ventricle were perforated. LOrftr sited carocited artere and neck vain were perforated."
' In his opinion injuries to left carated left lung and heart were sufficient for the cause of death and probable time between injury and death was about 15 minutes and between death and post- mortem was about four hours.
6. The appellant in his statement under section 342, Cr.P.C. Denied all the allegations levelled against him and professed his innocence. While answering the question "why this case against you and why the P.Ws. Have deposed against you", he stated as under:-- "P.Ws. Are related inter se and inimical to me. In my childhood unfortunately I met an electric shock, as a result of which my right hand was burnt completely, fingers of right hand were also burnt and my right leg was also badly affected due to electric shock. Since then my right arm is handless and having only a stump, fingers of left hand are in twisted form and not in working condition. I cannot easily walk and run rather I walked in limping condition as being handicap and crippled person. I cannot fire or load a gun. All the prosecution story is absolutely false. This is an witnessed occurrence. I have been falsely roped in this case due to dispute of Rishta. Prior to suffering aforesaid electric shock in my child hood my father as he was alive at that time made my engagement with Mst. Rukhsana daughter of complainant and in exchange my sister Mst.
Sakina was engaged with Muhammad Salem P. W. 11 and marriage of spouses was deffered till their attaining age of puberty. When I met said electric shock and became crippled and handicapped complainant refused to give me hand of his daughter. Before attaining age of puberty my father died then complainant forced me to give hand of my sister Mst. Sakina to his son Muhammad Saleem P. W.11 but I replied that if he is not ready to give hand of his daughter then how he expect that I will give hand of my sister to his son. My this refusal caused annoyance to the complainant. There was also dispute of land between me, complainant and P. Ws. My false involvement in this case is cumulative effect of said disputes. Story of watering sunflower crop by the complainant is concoction, merely to justify or show presence of P.Ws. At the spot malafidely. I am innocent. All the prosecution story including recoveries is false, concocted and fabricated one.
Deceased was a known thief and a natorious person, so due to his nefarious activities people of locality was sick of him. He was murdered by unknown person. This F.I.R. Was chalked out after post-mortem examination and which deliberation and consultation to make it in line with the post-mortem examination report, time of recording of statement and F.I.R. Has been incorrectly mentioned in the order to show the same to be a prompt F.I.R. Malafidely. All the proceedings including complaint, recovery memoes etc. Were prepared while sitting at the Police Station. Right side of my neck was also seriously burnt by said electric shock."
' The appellant neither opted to appear as his own witness under section 340(2), Cr.P.C. Nor produced any defence evidence. After conclusion of the trial the appellant was convicted and sentenced as mentioned above.
7. Learned counsel for the appellant submits that the occurrence took place at 12-00 Noon on 14-5- 2006 whereas F.1.R. Was got recorded with a delay of one and a half hour and this time was consumed by the complainant to cooked up a false story against the appellant whereas the Police Station is few kilometers away from the place of occurrence. The occurrence has not been witnessed by anybody. Faiz Muhammad (P. W.10) and Muhammad Saleem (P.W. 11) were procured and thereafter made eye-witnesses of the occurrence which was established from the glaring contradictions found in their statements. According to the site-plan the accused fired from field of sunflower, the height of the crop is more than six feet and it was not possible that the accused could be seen by the eye-witnesses. The direction and distance from which the deceased was fired upon mentioned in the site-plan does not tally with the statements of P. W.10 and P.W.11. Had the eye-witnesses present at the spot their statements should be in line with the prosecution story.
Even otherwise the eye-witnesses of the occurrence are related inter se, inimical and interesting witnesses. The evidence produced by the eye-witnesses is also inter se contradictory. There is also contradiction between the medical evidence and ocular account. The appellant had some previous disputes over the issue of marriage and property with the complainant party. Some unknown persons might have killed the deceased because he was not a man of good character and there was history of criminal cases against the family of the deceased. The deceased had been done to death by some criminals. The recovery has been planted upon the appellant by the police in collusion with the complainant party because no private person from the locality has been associated with the recovery proceedings which also result in violation of section 103, Cr.P.C.
Saeed Ahmad (P.W.9) witness of recovery is a related and inimical witness. The motive was not raised by the prosecution at the time of registration of F.I.R. And till conclusion of the trial it could not be proved through impressive cogent, direct and relevant evidence. The prosecution failed to prove motive against the appellant. The F.I.R. Was got recorded after the postmortem examination because if the F.I.R. Had been recorded before the preparation of inquest report and post-mortem examination report the number of F.I.R. Should have been mentioned on the above mentioned documents. During cross-examination doctor failed to mention the weapon with which the deceased had been done to death. Even no pellet was recovered by the doctor during post- mortem examination in spite of the fact that the deceased has sustained injury of .12 bore gun. The right hand of the appellant is amputated for this reason he cannot use .12 bore gun. Admittedly the appellant is infirm from one leg and he could not walk properly how could it is possible that after the occurrence in the presence of witnesses he ran away from the spot. Even the eye-witnesses are not consistent on that point as one eye-witness deposed that the appellant was chased by the eye-witnesses whereas the other deposed that they did not chase the appellant to apprehend him and they indulged into providing aid to the deceased. The distance stated in the F.I.R. From where the fire was made is 6/7 karams and from this distance only skin-deep injury could be caused by a double barrel gun.
8. On the other hand learned Deputy Prosecutor-General assisted by the learned counsel for the complainant vehemently controvert the contentions of the learned counsel for the appellant and submits that it is a promptly lodged F.I.R. Which was registered with a span of one and a half hour. It is daylight occurrence the parties are known to each other and there was no chance of mistaken identity. The prosecution has been able to prove the ocular account through evidence of Faiz Muhammad (P.W.10) and Muhammad Saleem (P.W.11) who have given a consistent and confidence inspiring evidence before the learned trial Court and the eye-witnesses are consistent with each other on every material point. The recovery of weapon of offence was effected from the accused which has been proved by the trustworthy evidence of Saeed Ahmad (P.W.9). The firearm injury attributed to the appellant is also borne out from the post-mortem examination report of the deceased. From the very beginning the prosecution has alleged about motive against the appellant that on the previous night he has stolen wheat of the deceased, he was admonished by the deceased and due to this grudge he had committed the murder of the deceased. Not a single criminal case has been registered against the deceased whereas there are number of criminal cases registered against the appellant and his family and they are known robbers and dacoits of the area. The prosecution has proved its case beyond any reasonable doubt and the learned trial Court has rightly awarded capital sentence to the appellant which may be maintained.
9. We have heard the learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the 'record with their able assistance.
10. It has been observed by us that it is a case of promptly lodged F.I.R. Which was got recorded by the complainant within a span of one and a half hpur which fact rules out any possibility of concoction and false implication of the appellant in this case or any possibility of deliberations or consultations over the matter by the complainant. The non-mentioning of number of the F.I.R. In the inquest report and the post-mortem report is just a technical irregularity for which the complainant cannot be penalized and such technicality cannot be given weight. Thus, we are of the confident view that the F.I.R. In this case had been lodged with sufficient promptitude.
11. The ocular account in this case has been furnished by Faiz Muhammad (P.W .10) and Muhammad Saleem (P.W.11) and both the eye-witnesses remained consistent on each and every material point. They had provided confidence inspiring evidence with regard to time as well as place of occurrence, the manner and mode of happening of occurrence, the locale of injuries sustained by the deceased and the weapon used by the appellant during the occurrence. They were subjected to lengthy cross-examined by the defence but nothing adverse to the prosecution story was extract from their evidence. They were previously known to the appellant, therefore, the question of mistaken identity or substitution of the appellant with the real culprits does not exist in this case. Although both the eye-witnesses are related to each other and they were also related to the deceased yet it is a routine of villagers to work in the field together, therefore, their presence at the place of occurrence is usual and is not deemed us to be abnormal. Even otherwise the mere fact of relationship of the witnesses with the complainant or with Che deceased and their inimical behaviour towards the appellant alone is not sufficient to smash the evidence adduced by such witnesses. Such evidence can be believed without corroboration if intrinsic worth. Of the testimony inspires confidence of the court and the same leads to inference that the witnesses were present at the scene of the crime and they have seen the occurrence, Reliance is placed on the case of Muhammad Ahmad and another v. The State and others (1997 SCM R 89). More over the rule requiring independent corroboration of testimony of interested witnesses is a rule of prudence which is not to be applied rigidly in each case. There can be cases like the present one where implicit reliance can be placed on the testimony of an interested witness if it otherwise inspiring confidence of the Court.
12. The learned counsel for the appellant has laid great emphasis that the right hand of the appellant is amputated and he cannot make fire with the same. We, however, cannot appreciate this submission of the learned counsel for the appellant because a trigger of gun can be pressed from a finger of left hand with the support of right hand, thus, by taking such a weak plea the appellant cannot take advantage of his infirmity, if any. So far as the contention of the learned counsel that in presence of eye-witnesses how the appellant could run from the place of occurrence, suffice it to observe that the appellant was holding gun at the time of incident and the witnesses who were empty-handed could not dare to chase him due to fear of life. Thus in the backdrop of the discussion made above we are of the confident view that the prosecution has proved the ocular account.
13. The prosecution had attributed only one fatal fire-shot of double barrel gun .12 bore to the appellant and the same was found on the same places where the eyewitnesses had alleged before the learned trial Court in their statements. Dr. Muhammad Jalal (P.W.7) appeared before the learned trial Court and had sufficiently .Explained the injury sustained by the deceased and he also stated about the locale of injury .Which is exactly in line with the accusation made by the eye- witnesses and written in the F.I.R. The doctor in his evidence had declared the same injury to be the cause of death. He has also explained the duration between the injury and the death as well as between the death and the post-mortem examination which too are in line with the prosecution's case. We are, therefore, of the view that the medical evidence amply corroborates the ocular account furnished in this case.
14. So far as the recovery of weapon of offence 'is concerned we have observed that during the investigation of this case a double barrel gun .12 bore (P-3) was recovered at the instance of the appellant on 31-5-2006 but such recovery is of no consequence because admittedly empty and gun were sent to the Forensic Science Laboratory together, therefore, the evidentiary value of the recovery is nothing but Zero.
15. The motive set up by the prosecution in the F.I.R. Is that on the preceding night of the occurrence the appellant had stolen wheat of the complainant party and upon such an act the deceased had reprimanded the appellant who nourished grudge in his mind and committed the murder of the deceased. We have, however, given our anxious consideration over this aspect of the matter and observed that no report regarding theft of wheat has been brought by the prosecution on the record of this case to substantiate motive. Moreever no person of prudent mind can dare to take life of anybody upon such a petty matter. Thus, we are not giving any importance to the motive narrated in the F.I.R. But even motive and recovery are not accepted in this case even then rest of the evidence is sufficient to prove the guilt of the appellant G in this case. The ocular account and the medical evidence amply bring the guilt of the appellant home. We are, thus, convinced that the learned trial Court has rightly convicted the appellant under sections 302(b), P.P.C.
16. However, after taking into consideration all the surrounding circumstances of this case we are of the view that capital sentence in this case would be harsh and there are certain extenuating circumstances in favour of the appellant for lesser sentence such as:--
(a) The motive set up by the prosecution has not been believed by us.
(b) Recovery of weapon of offence sent to the Forensic Science Laboratory with the empty collected from the spot on the fateful day, thus, the same is of no consequence.
(c) The real cause of occurrence has not been brought by any party before this Court because we have already disbelieved the motive set up by the prosecution in the F.I.R. And at the same time we are also not ready to believe the stance taken by the appellant in his statement under section 342, Cr. P. C . That the appellant had previous enmity over issue of marriage and property and that is why the complainant party had falsely involved him in this case.
' So keeping in view the above said reasons for the safer course of justice we find that the capital punishment of death to the appellant would not serve the interests of justice well because of some extinguish circumstances existed in this case. Even otherwise it is well-recognized principle by now that accused is entitled for the benefit of lesser punishment as an extenuating circumstance while deciding his question of sentence. Reliance is placed upon Mir Muhanzinad alias Miro v. The State (2009 SCM R 1188). In another judgment reported as Ansar Ahmad Khan Barki v. The State and another (1993 SCM R 1660), the Hon'ble Supreme Court of Pakistan has held that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to an accused for award of normal penalty of death. We have also fortified our view qua the quantum of sentence by the case reported as Sharafat Ali. Khan v. The State (2010 SCM R 1205), wherein the Hon'ble Supreme Court has observed as under:-- "In Muhammad Riaz and another v. The State (2007 SCMR 1413), while considering the penalty for an act of commission of qatl-e-and it was observed "No doubt, normal penalty for an act of commission of qatl-e-amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case. Reference in the context may also be made to Iftikhar Ahmad Khan v. Asghar Khan and another (2009 SCMR 502)."
19. In view of all above while maintaining the conviction of the appellant under sections 302(b), P.P.C. We convert his death sentence into imprisonment for life under section 302(b), P.P.C. The sentence passed regarding compensation amounting to Rs, 2,00,000 or in default of payment further sentence of simple imprisonment for six months is, however, upheld and maintained. The benefit under section 382-B, Cr.P.C. Is also extended in favour of the appellant. Criminal Appeal No, 275 of 2007 is, therefore, dismissed with the above modification made in the sentence of the appellant.
20. Murder Reference No, 376 of 2007 is answered in the negative and the death sentence of the appellant is not confirmed.
Sentence reduced.