' SYED AFSAR SHAH, J.---This Criminal Appeal (No,97 of 2010) is directed against the judgment dated 30-4-2010 passed by learned Additional Sessions Judge-III, Haripur, whereby the appellant Khalid Mehmood was convicted under section 302(b), P.P.C. And sentenced to death with payment of compensation of Rs,3,00,000 to the L.Rs, of the deceased within the meaning of section 544-A, Cr.P.C. Or in default thereof to undergo six months' S.I. Further. The learned trial Court has also forwarded Murder Reference within the meaning of section 374, Cr.P.C.
2. Facts relevant for disposal of the present appeal in brief are given as under:-- On 26-6-2005 at about 0845 hours Khurram Shahzad (P.W.5) resident of Mohallah Sessions House Haripur made a report to S.-I. Muhammad Shaukat of Police Station City (P.W.1) in the Emergency Ward of DHQ Hospital, Haripur, to the effect that on the day of occurrence he alongwith his father was present in their shop situated in Mochi Bazar Haripur when told by his father to go to Khalid resident of Ashraf Colony for the return of loan. They also took their uncle Waseem Shahzad (P.W.6), who was also having a shop in the same vicinity and accordingly, all the three went to there where his father knocked at the door of the house of the appellant and on which he came out from his house; that his father made a demand of money (return of loan) from the appellant Khalid Mehmood and on which he went inside his house and after a short while came out from his house having a pistol in his hand; that he started firing at his father, due to which he was hit but in order to save his life he ran towards them but fell down near the house of Arshad. He was taken to the hospital but on the way he succumbed to the injuries. The occurrence, in addition to the complainant, is stated to have been witnessed by his uncle Waseem Shahzad and so many other persons present at the place of Wardaat.
3. The above is the narration of Khurram Shahzad in the shape of murasila Exh.PA/1, which was recorded by Muhammad Shaukat S.-I. In the Emergency Ward, whereafter, he prepared his injury sheet along with the inquest report and sent the body of the deceased for postmortem examination.
4. After arrest of the appellant and completion of investigation, he was sent for trial to the Court of Additional Sessions Judge-III, Haripur, who on conclusion of the trial found him guilty of the charge and sentenced him vide impugned judgment, as mentioned above.
5. Learned defence counsel appearing on behalf of the appellant contended that the narration given by the P.Ws. Khurram Shahzad and Waseem Shahzad is not in consonance with the medical evidence. He added that the account furnished by both the eye-witnesses do not fit in with the entries made in the site plan notwithstanding it was admittedly prepared at their instance. Learned defence counsel also pointed out contradictions in the statements of eye-witnesses and submitted that it being a case of no evidence, the conviction and sentence of the appellant could not be sustained on such like weak and doubtful type of evidence and, therefore, he added that the appellant is entitled to be acquitted. During his arguments, learned defence counsel also tried to make the version of the complainant in respect of the motive as doubtful and in this respect he made a reference to the ocular account furnished by the two eyewitnesses.
6. Learned counsel in the alternative urged for conversion of death sentence into imprisonment for life by submitting that when the ocular account furnished by the son and brother of the deceased being interested witnesses, it cannot be said with certainty that the occurrence has taken place in the manner as narrated by them in their statements or given in the F.I.R. And, thus, this fact is still shrouded in mystery. He added that in the circumstances of the case the sentence of death shall be too harsh.
7. As against that learned counsel for the complainant assisted by the State counsel maintained that a single accused is charged and no reason whatsoever can be extended for false implication.
They went on to say that it is a daylight occurrence and the report in this, case has been lodged without any loss of time a the occurrence took place at 8-30 hours whereas the report has been made at 8-45 hours in the Emergency Ward of DHQ Hospital, Haripur with a specific role attributed to the appellant. Regarding this version of the defence that both the eye-witnesses are close relatives of the deceased, Mr. Saeed Akhtar Khan learned counsel for the complainant urged that generally in this society ocular account is always furnished by close relatives of the deceased and because of lack of responsibility independent witnesses never come forward despite their moral, legal and religious duty. Developing their arguments, they added before us that the ocular account is supported by medical evidence, recovery of empties from the spot of occurrence, report of Chemical Examiner and abscondence of the appellant. Reliance was placed on 1978 SCM R 136, 2003 SCM R 5222001 SCMR 90. With respect to the motive learned counsel for the complainant made a reference to the cross-examination of P.W. Khurram Shahzad where a suggestion has been put to him by the defence regarding the payment of cash amount to the appellant in connection of the vehicle bargain.
8. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
9. A perusal of the statements of Khurram Shahzad and Waseem Shahzad would reveal that they have furnished the natural and straightforward account in respect of the occurrence by recounting the facts Mentioned in the first information report. Both the eye-witnesses have clearly and distinctly stated the events and places where from the deceased was fired at by the appellant.
They were subjected to lengthy searching cross-examinations but nothing could be extracted from their mouths which could diminish the probative worth of their testimony. There is absolutely no conflict between the account narrated by them and the entries made in the site plan when seen with open eyes and attentive mind. Not only this, there is no inconsistency between the ocular account and themedical evidence rather the same supplement each other. Similarly, the account furnished by the official witnesses also appears to be natural and straightforward, without any significant discrepancy in their statements. Minor omission, if any, on the part of the investigating agency in the matter is not of much importance when entire evidence on record appears to be unshaken.
10. In this background, we have no hesitation to hold that the charge against the appellant has been proved beyond any reasonable doubt.
11. The arguments urged in the alternative is, however, not without substance. Admittedly, both the eyewitnesses are close relatives of the deceased and again it is in the evidence of P.W. Waseem Shahzad that when the deceased knocked at the door of the appellant, he 'came out and faced the demand/return of loan from the deceased and on which some altercation took place, whereafter, the appellant went inside his house and again came out along with the pistol and started firing at the deceased with which he was hit. What we want to say is that due to the demand of loan by the deceased from the appellant some altercation, as stated by P.W. Waseem Shahzad, took place and the circumstances do reveal that tampers might have flared up at the spot and there was no time for the appellant to ponder or for that matter to think upon the fall out of his act, therefore, we convert the sentence of death into imprisonment for life whereas the amount of compensation awarded by the learned trial court is left intact. However, the appellant shall be entitled to the benefit of section 382-B, Cr.P.C.
12. The appeal is, thus, disposed of with the above modification and similarly murder reference is answered in the negative.
13. Above are the reasons of our short order of even date.