' MUHAMMAD HASHIM KHAN KAKAR, 1.---The Additional Sessions Judge, Dera Allah Yar, vide judgment dated .11th May, 2010 has convicted and sentenced appellant Zahoor Ahmed son of Sajawal under section 302(b) of the P.P.C. To death with direction to pay. Diyat amount to the legal heirs of deceased Haji Muhammad. He was further convicted and sentenced under section 337- F(iii) of the PPC as ta'zir to suffer three years' R.I. And to pay Daman of Rs,10,000 to victim Zahid Hussain. The appellant preferred Criminal Appeal No, (S) 42 of 2010 for his acquittal, while the Additional Sessions Judge has sent Murder Reference No,(S)09 of 2010 for confirmation of the sentence of death or otherwise. Since common question of law and facts is involved, therefore, both the matters are being disposed of by means of this common judgment.
2. Briefly stated the facts of the case are that on 11th November, 2009 at about, 3-30 p.m., a case vide Crime No,254 of 2009, under sections 302, 324 read with section 34 of the P.P.C. Was registered at Police Station Dera Allah Yar, District Jaffarabad, on the written report of complainant Inayatullah (P.W.1). It was alleged by the complainant that on above date, at about 2:50 p.m., he, along with his father Haji Muhammad and All Muhammad, after purchasing household articles from city Bazaar Dera Allah Yar, when reached pear Hussain Hotel, Quetta road, accused persons Dildar, Zahoor Ahmed (Appellant) and Sajawal, duly armed with TT pistol, came in front of them and told his father that thy will not leave him alive and all of them made firing upon him with TT pistols, due to which, his father, after sustaining bullet injuries, expired on the spot. It was further alleged by the complainant that one Zahid Hussain, who was standing nearby fruit-cart, also received injury due to firing of the above named accused persons. The motive behind the incident was disclosed matrimonial dispute between the parties. Consequently, aforesaid case was registered.
3. After registration of the F.I.R. Exh.P/7, investigation of the Case was entrusted to P.W.7 Rafique Ahmed, S.-I., who inspected the site, prepared site sketch ExH.P/7-B, secured blood from the crime scene, collected 7 empties of TT pistol vide memo, recorded statements of P.Ws., prepared inquest report Ex.P/7-A of deceased and injury report of injured. Appellant Zahoor Ahmed was, arrested by S.H.O., whose custody, along with a TT pistol and one live cartridge, recovered from his possession, was handed over to the Investigating Officer. He received MLCs of the deceased and injured from hospital, took into possession the blood-stained clothes of deceased and sent the same along with recovered crime weapon i,e,, pistol to experts for analysis. He also prepared disclosure memo of the accused and thereafter placed the papers before. S.H.O., who prepared incomplete challan Exh.P/7-C and on receiving reports of the FSL experts Exh.P/7-E and Exh.P/7-F respectively with regard to crime weapon 0-bore and blood-stained clothes, incomplete challans Exh. P/7-D and Exh.P/7-G were prepared and appellant was sent up to face the trial.
4. On the stated allegation, charge was framed and read over to the appellant, to which he pleaded not guilty and claimed trial. The prosecution, in order to substantiate the accusation, produced seven witnesses. P. W . 1 Inayatullah is complainant of the case, who produced his written report Exh.P/1-A. P.W.2 Zahid Hussain alleged to have received injuries by the hand of appellant.
P.W.3 Dr. Zulfiqar Ali Bugti, Medical Officer, examined the dead body of deceased, also examined the injured and issued Medico-legal certificates Exh.P/3 and Exh.P/3-A. P.W.4 Mehrab Khan and P.
W.6. Ali Muhammad alleged to have witnessed the occurrence. P.W.4 produced site inspection memo. Exh.P/4, recovery memo of blood secured from the place of occurrence as Exh.P/4-A and recovery memo. Of collection of 7 empties from the spot as Exh.P/4-B. P.W.5 Ali Sher, constable, allegedly, along with other police party, arrested the appellant and is witness to the .Recovery of TT pistol from his possession vide memo. Exh.P/5. He is also witness to the blood-stained clothes of deceased vide memo. Exh.P/5-A and P.W.7 Rafique Ahmed, S.-I. Is the Investigating Officer of the case. Then the prosecution closed its side.
5. In his examination under section 342 of the Cr.P.C., the appellant denied and controverted each and every allegation of fact levelled against him by the prosecution and professed his innocence.
However, he neither made any statement on oath under section 340(2) of the Cr.P.C., nor he produced any witness in his defence.
6. At the conclusion of the trial, the trial Court found the prosecution's case against the appellant to have been proved beyond and reasonable doubt and, thus, the appellant was convicted and sentenced, as mentioned and detailed above. Hence, the present appeal before this Court by the convict/appellant and murder reference by the Additional Sessions Judge.
7. We have heard learned counsel for the appellant as well as learned counsel for the State and have gone through the record with their valuable assistance. Mr. Nadir All Chalgari, learned counsel for the appellant, submitted that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. On the contrary, as against that M Abdullah Kurd, Advocate, representing the State, has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the instant appeal deserves dismissal.
8. As far as unnatural death of deceased Haji Muhammad and firearm injury to P.W. Zahid Hussain is concerned, the same has not been seriously disputed by the defence. Even otherwise, P.W.3 Dr. Zulfiqar Ali Bugti, who examined the dead body of deceased Haji Muhammad and injured Zahid Hussain, has proved unnatural death of deceased and firearm injury to Zahid Hussain by means of firearm injuries. However, the question arises, as to whether the appellant was the person, who committed the murder of deceased and causing injury to P.W. Zahid Hussain? It is the case of prosecution that on the fateful day at about 2-50 p.m., nearby Hussain Hotel, Dera Allah Yar, appellant along with his absconding companions viz Dildar and Sajawal, in furtherance of their common intention, made attack upon the complainant party, resultantly; Haji Muhammad and Zahid Hussain received firearm injuries, whereas Haji Muhammad passed away at the spot. The motive behind the occurrence was stated to be matrimonial dispute between the parties, which culminated in unfortunate death of deceased Haji Muhammad and firearm injury to P.W. Zahid Hussain.
In order to substantiate the accusation, the prosecution mainly relies on the statements of P.W.1 complainant Inayatullah, P.W.2 Zahid Hussain and P.W.6 Ali Muhammad P.W.1 complainant and P.W.6 Ali Muhammad are respectively the son and cousin of the deceased, who were accompanying, the deceased the time of incident, whereas P.W.2 Zahid Hussain is not only victim of the alleged occurrence, but is also an independent witness, having no grudge or with the appellant. The witnesses have fully supported the prosecution version, and stated that on the unfortunate day, the appellant and absconding accused persons made firing upon the deceased' and injured witness Zahid Hussain. They narrated a , straightforward and confidence inspiring story and despite lengthy cross-examination, remained firm to their depositions and nothing material was brought on record to doubt, their veracity, except a few minor contradictions, not affecting the intrinsic value of their statements. The presence of the witnesses at the relevant time could not be doubted. Admittedly, P.W.1 Inayatullah is son and P.W.6 Ali Muhammad is cousin of the deceased, but their statements could not be discarded only on the ground of their relationship with the deceased. Similarly, P.W.2 Zahid Hussain is not only injured witness, but is also an independent- witness. Admittedly, he had no or motive, nor any such thing was suggested to him during cross- examination, to falsely implicate the appellant in the commission of the offence. On the other hand, the defence has failed to lay down the foundation for substitution of appellant in place of real culprits. The fact, that the F.I.R. Was promptly lodged, wherein the appellant was nominated, shows that the complainant has narrated truthful account of the incident. The prompt registration of the F.I.R., coupled with the fact that the complainant had gone alone to the police station for the purpose, proves that prior to lodging of the F.I.R. No deliberation was made, nor there was any time for him to concoct the story. The occurrence has, admittedly, taken place in broad daylight and under such circumstances, no question of mistaken identification arise at all.
9. The ocular account, furnished by the prosecution witnesses is not suffering from any material contradiction, discrepancy or inherent infirmity and is consistent with the probabilities materially fitting in with the other evidence, more particularly the medical evidence and supported by the recovery of crime weapon i,e, pistol from the possession of appellant and the positive report, of Firearm Expert.
10.No doubt, the star prosecution witnesses i,e, P.W.1 Inayatullah and P.W.6 Ali Muhammad are respectively the son and cousin of the deceased, but only on account of their relationship with the deceased, they cannot be termed as interested witnesses for the reasons that they had no , direct animosity with the appellant Zahoor Ahmed, who has been attributed fatal injuries to the deceased Haji Muhammad and P.W. Zahid Hussain. The Hon'ble Supreme Court in a case reported in. 2000 SCM R 727, while dealing with the proposition of interested witness, observed as under:-- "Moreover, we find that none of the two eye-witnesses could be termed as interested witnesses because none had any previous ill-will or grudge against the petitioner. Merely because P.W.4 is father of the deceased and P.W.5 belongs to the "Baradari" of the deceased would not make them interested as they had no reasons to substitute the petitioner for the real killer."
11. The only question, which now remains to be answered, is the quantum of sentence, to which the appellant is liable for in the given facts and circumstances of the case. We have arrived at a confident conclusion that the prosecution had succeeded to prove the guilt of the appellant to the hilt, however, it has not been established beyond doubt that as to by whose firing, the deceased was caused to death, as the role of firing had been attributed to all the three accused persons, therefore, the imposition of death sentence to the present appellant, in the given circumstances, would not be' justified and uncalled for.
12. Regarding the quantum of sentence, the trial Court has over sighted to the fact that the prosecution has badly failed to prove the alleged motive. Prosecution, 'no doubt, is not required to disclose or set up a motive, but once it chooses to do so, then it becomes its obligation to prove the same by cogent evidence and failure in doing so would not only damage the credibility of the prosecution case beyond repair, but it would also be fatal for it. In this regard, we are fortified our view to a judgment reported in 1998 PCr.LJ 990, wherein it has been held as under:-- "9. The motive set forth in the F.I.R., is that complainant party, after extracting sugarcane juice from the sugarcane, threw the waste/bagasse in the field of the accused party but Rahim Gul (P.W.6) and Mehrab Gul (P.W.7) categorically admitted in the cross-examination that land of the appellants is situated at a distance of 700/800 yards from the 'Ghanai' in question. It is a fairly well settled rule that once the prosecution has set up a motive, it is required to be established by it. If it failed to establish, it will adversely affect the credibility of the eye-witnesses."
13. In view of the said backdrop, we conclude that the appellant has, become able to show that mitigating circumstances do exist for committing murder of the deceased. Consequently, the death sentence awarded to the appellant under section 302(b) of the P.P.C. Is converted into that of life imprisonment, with benefit of section 382-B of the Cr.P.C. The amount of compensation and conviction under section 337-F(iii) 6f the P.P.C. Shall remain intact in the terms of judgment handed down by the trial Court. Resultantly, the appeal filed by the appellant, with above mollification in the quantum of sentence, is dismissed, being meritless, and the murder reference is answered in negative.