' MUHAMMAD QASIM KHAN, J.---Nazir Ahmad accused/appellant along with Ghulam Abbas (since acquitted) was booked in case F.I.R. No,221 of 2004 under section 302/34, P.P.C. Registered with Police Station City Sadiqabad and ultimately vide judgment dated 9-4-2009 Ghulam Abbas co- accused was acquitted of the charges against him, whereas, Nazir Ahmad was convicted under section 302(b), P.P.C. For committing Qatl-e-Amd of Muhammad Afzal deceased and sentenced to death; further ordered to one lac rupees as compensation to the legal heirs of the deceased, failing which to further suffer simple imprisonment for six months. Murder Reference No,16 o 2009 has been sent by the , learned trial court under section 374, Cr.P.C, Criminal Appeal No,99 of 2009 has been filed by Nazir Ahmad convict challenging his above conviction and sentence, whereas, Criminal Appeal No,146 of 2009 has been filed by Rasool Bakhsh complainant against the acquitted of Ghulam Abbas, all these three matters are being decided by this single judgment.
2. Briefly the facts are that Rasool. Bakhsh complainant P.W.3 on 25-6-2004 reported the matter to the police, where upon formal F.I.R. Was chalked out with the narration that on the fateful morning the complainant along with Muhammad Iqbal, Zafar Iqbal, Muhammad Afzal, Muhammad Khan were coming back after attending hearing in Katchery Sadiqabad, when at about 7-30 a.m. They reached near Sadiq Market, Nazir Ahmad (accused/appellant) armed with 12-bore pistol and Ghulam Abbas armed with pistol .30-bore (since acquitted) came; Nazir Ahmad exhorted lalkara to teach them lesson for having abducted his sister Mst. Fateh Bibi. Muhammad Afzal tried to run, Ghulam Abbas made a straight .30-bore pistol fire which went missed. Nazir Ahmad fired from his .12-bore pistol which hit the back of Muhammad Afzai and second fire by Nazir Ahmad landed on the right hand and head of Muhammad Afzal and he fell down in injured condition. On hearing the fire shots so many people were attracted at the scene of occurrence, they tried to apprehend the accused but accused persons extended threats and decamped. Muhammad Afzal died of the injuries at the spot.
' Motive was alleged to be that sister of Nazir Ahmad accused namely Mst. Fateh Bibi had been abducted and a case F.I.R. No,25 of 2003 had been registered at Police Station Bhong for her abduction, wherein, Muhammad Afzal (deceased) and Zafar Iqbal had been challaned. It was further stated that Nazir Ahmad and Ghulam Abbas had committed the murder on the instigation of Ghulam Muhammad and Arz Muhammad.
3. After registration of the F.I.R., Umar Daraz Sub-Inspector P.W.9 initiated the investigation by visiting the spot, where he inspected the dead body, prepared injury statement Exh.PJ, inquest report Exh.PK and sent the dead body for post mortem examination. The I.O. Took into possession blood-stained earth Exh.PC, two empties Exh.PD, prepared site plan of place of occurrence Exh.PL and recorded statements of the witnesses. On the same day Nazir Ahmad accused was arrested and .12-bore pistol , P-2 was recovered from him with three live cartridges, site plan of place of recovery is Exh.PE/1. Since Nazir Ahmad accused failed to produce any licence for carrying the said weapon, a separate case was registered against him. On the same day co-accused Ghulam Abbas was arrested and pistol .30-bore P-4 with five live bullets P.5/1-5 were recovered, the site plan of place of recovery is Exh.PF/1. After recording statements of the witnesses the Investigation Officer proceeded to the hospital where last worn clothes of the deceased i,e, Shirt P-6, Chaddar P- 7, Patka P-8 (all blood-stained) and a pair of shoes P.9/1-2 were produced to him and taken into possession vide memo Exh.PG. After completion of investigation the accused namely Nazir Ahmad and Ghulam Abbas were sent to face trial, however, during investigation as co-accused namely Ghulam Muhammad and Arz Muhammad were found innocent, their names were placed in Column No,2 of the report.
4. The accused persons were charge-sheeted, as they pleaded not guilty the trial commenced, wherein the prosecution produced ten witnesses, which include the statement of the Investigation Officer P.W.9, complainant appeared as P.W.3 and produced Zafar Iqbal P.W.4 to depose about ocular account, whereas Dr. Hafiz Nisar Ahmad P.W.7 appeared to depose about the conduct of post mortem over the dead body of Muhammad Afzal deceased and found the following injuries:--
(1) A lacerated wound 1/4 x 1/4 inches on left temple between left eye brow and left ear. Bleeding and blackening
(2) A lacerated wound 1/4 x 1/4 inches on near left ear and bleeding and blackening.
(3) A lacerated wound 1/4 x 1/4 inches on middle of left lumber sacral lembosacral region, blackening and bleeding.
(4) A lacerated wound 1 x 1/4 inches on right middle finger and ring finger bleeding and blackening. Skin and muscles were injured.
' According to the doctor probable time elapsed between injuries and death was immediate and between dearth and post mortem was 12-hours. The cause of death was observed to be Injuries Nos.1, 2 and 3 collectively, caused with fire arm. On close of the prosecution evidence the accused were examined under section 342, Cr.P.C., wherein they refuted, the entire prosecution case.
Ultimately, Ghulam Abbas was acquitted of the charges against him, whereas, Nazir Ahmad accused/appellant was convicted and sentenced, as detailed above.
5. In support of instant appeal, learned counsel for the accused/appellant has argued that presence of the P.Ws. At the place of occurrence is unnatural as neither they abode nor had any business including cultivation at or around the place of occurrence and the occurrence has taken place on a thoroughfare but no independent person has been produced by the prosecution to prove its case. Learned counsel further argued that because of previous criminal litigation between the parties before Sessions Court at Rahim Yar Khan the appellant has been falsely involved in this case. The learned counsel emphasized with vehemence that post mortem has been conducted with inordinate delay, which reflects that neither the P.Ws. Nor the complainant were present at the place of occurrence and they learnt about the incidegtt and came at the spot after concocting the story in collusion with police a false case has been foisted against the appellant. Further argued that evidence produced by the prosecution has not been believed by the learned trial court qua remaining co-accused. Lastly, it has been argued that report of Forensic Science Laboratory showing positive report of the crime weapon is inconsequential on the ground that empties as well as crime weapon i,e, pistol; all were sent together, therefore, it may not be relied upon. The learned counsel further argued that if the court does not agree or has not been persuaded by the arguments raised, then it is not a case of capital sentence on the ground that family honour has been involved in this case as prior to the occurrence deceased abducted Mst. Fateh Bibi and the trial of the Said case was going-on, on so many dates prior to the happening of the occurrence both the parties have been going and coming together after the court proceedings, but none of the parties ever attempted to cause harm to the other side. If this background of the case is taken up, then according to the learned counsel it is mysterious on the part of the prosecution as to what happened on the day of occurrence instantly before the occurrence, therefore, the quantum of sentence of the appellant is obliged to be extenuated and same may be reduced.
6. The learned Deputy Prosecutor-General assisted by learned counsel for the complainant opposed the above arguments on the ground that occurrence took place in shine day parties were known to each other prior to the occurrence, both the parties have been entangled in criminal litigation and as per prosecution case on the day of happening of the misfortune incident, both the parties were coming back to their house and in a planned manner by repetitive fire shots the appellant secluded the deceased. The learned counsel for the complainant further argued that it is promptly lodged P.I.R., motive is very strong which has not been denied and recovery of crime weapon corroborates the prosecution evidence by way of positive report of Forensic Science Laboratory and no element of mitigating the quantum of sentence exist in this case, thus the appeal may be dismissed. The learned counsel for the appellant while pressing his appeal against the acquittal of Ghulam Abbas has argued that his acquittal is result of misreading of prosecution evidence, otherwise, sufficient material was available on the file to justify conviction of said Ghulam Abbas.
7. We have explored the file with magnifying glasses and have also keenly heard the learned counsel for the parties, for the just decision of this case.
8. The instant occurrence took place in this case on 25-6-2004 at 7-30 a.m. In the area of Sadiq Market situated at a distance of 1-1/2 furlong from police station City Sadiqabad and the matter was reported to the police on the basis of application of complainant Rasool Bakhsh on the same day at 8-15 a.m. Implying that F.I.R. Was lodged with promptness leaving no room for consultation or deliberations. Courts have always regarded a promptly lodged F.I.R. To be unquestionable document to some extent. Therefore, we believe that the F.I.R. Has been lodged with promptitude and have failed to search any loophole in the same, to favour the appellant.
9. The motive though serious one, but it otherwise implicates family honour and somewhat constant shame. According to the prosecution case deceased along with other guys abducted Mst. Fateh Bibi sister of the appellant, about which a case was lodged and after accomplishment of investigation by preparing report under section 173, Cr.P.C. Recommending prosecution of deceased and the co-accused, the learned trial court had initiated proceedings and on the day of 'occurrence allegedly the case was fixed for hearing and after being free from the court proceedings the parties were coming back to their homes and in the way this incident took place. It has been brought on record categorically by cross-examination of complainant P.W.3 that before happening of the incident both the parties have been attending the court for the last 10/12 dates jointly while going and coming but no untoward incident had taken place during said span of time, but what happened all of a sudden on the day of occurrence, which culminated in the assassination of Muhammad Afzal deceased, this aspect of the case is gloomy and fogy. It may not be tried to say that it remained mystery as to what happened immediately before the occurrence in between he parties. We believe the presence of the P.Ws. At the scene of occurrence at the relevant time and we have been unable to locate any material diversity in the statements of the eye-witnesses. The occurrence has taken place in the light of the day, but at this stage one aspect needs consideration i,e, the appellant did not make any fire shot at the deceased firstly rather the fire shot was made by Ghulam Abbas co-accused (since acquitted), but the same had gone missed, thereafter, allegedly the appellant made two successive fire shots hitting on different parts of body of the deceased resulting in falling on the ground dead. Spent crime empties as well as crime weapons allegedly recovered on the pointing out of the appellant were sent together, this fact also creates doubt in the veracity of the report of Forensic Science Laboratory Exh.PP. As we have already observed hereinbefore the element of family honour in this case cannot be over- looked, even otherwise, case of the prosecution when is seen in its totality then it can safely be inferred that deceased himself had invited the misfortune and jumped in the boiling water by way of abducting sister of the appellant. But at the same time during prosecution of the said abduction case prior to the occurrence no untoward incident happened between the parties and on the day of occurrence all of a sudden, conspicuously the occurrence took place and the immediate cause of murder remains a mystery. Therefore, we are not inclined, in the circumstances of this case, to uphold the quantum of capital sentence imposed upon the appellant, therefore, by dismissing the appeal of the appellant the same is commuted to imprisonment for life with benefit of provision of section 382-B, Cr.P.C. Jail authorities are directed to' count the period of incarceration so far undergone by the appellant towards substantive quantum of his sentence, the amount of compensation shall remain the same and case property shall be disposed of as ordered by the learned trial court. Office is directed to remit the record of the learned trial Court immediately.
10. For the same reasons, we find no substance in criminal appeal challenging the acquittal of Ghulam Abbas co-accused, as such, the same is dismissed accordingly.
MURDER REFERENCE IS ANSWERED IN NEGATIVE. SENTENCE OF DEATH IS NOT CONFIRMED.