' SH. NAJAM UL HASAN, J.--- Zulfiqar Ali, appellant along with Muhammad Arshad and Muhammad Aslam, co-accused was tried by the learned Addl. Sessions Judge, Chunian in case No.430 dated 18-12-2004 under section 302/34 P.P.C. Registered at Police Station Kanganpur, Tehsil Chunian District Kasur. At conclusion of trial the learned trial Court vide judgment dated 14-12-2006 while acquitting co-accused convicted the appellant under section 302(b), P.P.C. And sentenced him to death. He was also directed to pay fine of Rs.2,00,000 which was to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof to suffer six months' S.I.
2. Feeling aggrieved of the above conviction and sentence, Zulfiqar Ali, convict has filed Criminal Appeal No. 1943 of 2006 whereas the State has approached this Court by way of Murder Reference No.27 of 2007 seeking confirmation of death sentence awarded to the convict. Both these interconnected matters are being disposed of together through this single judgment.
3. The occurrence in this case took place on 18-12-2004 at 9-30 a.m. In which Muhammad Ishaq lost his life at the hands of Zulfiqar Ali, appellant with the connivance of Muhammad Arshad and Muhammad Aslam, co-accused and the matter was reported at the police station by Mst. Samina Bibi complainant and on her statement F.I.R. (Exh. PA) was recorded.
4. The prosecution story as narrated in the F.I.R. (Exh.PA) is that complainant's husband namely, Muhammad Ishaq (deceased of this case) was running a grocery shop in the village which was adjacent to the shop of Zulfiqar Ali, appellant. On the fateful day at 9-30 a.m. The mother-in-law of the complainant Mst. Sawran Bibi after cleaning the shop threw garbage in front of adjoining shop.
When the appellant came to open his shop he saw garbage and started abusing Muhammad Ishaq that his mother has thrown garbage in front of his shop, on which hot words were exchanged and the appellant went home. After some time he came along with Muhammad Arshad and Muhammad Aslam. The appellant was armed with double barrel .12-bore gun, Muhammad Arshad was armed with sota and Muhammad Aslam was empty handed. Muhammad Aslam raised lalkara to kill Muhammad Ishaq and on his instigation Zulfiqar Ali, appellant fired with his double barrel .12 bore gun which hit on right flank of Ishaq, who fell down and died at the spot. Besides many other persons the occurrence was, also witnessed by Kabeer, Muhammad Idrees, Sarwar and Ahmed Din.
5. Investigation of this case was conducted by Muhammad Siddique (P.W.9). After, recording the.
F.I.R. He reached at the spot and conducted formal investigation. He took into possession blood- stained earth vide recovery memo (Exh.PC.) and one empty vide recovery memo (Exh.PB). He recorded statements of the prosecution witnesses under section 161 Cr.P.C. He prepared inquest report (Exh.P.I) and injury statement (Exh.P.J) of ' the dead body and dispatched the same to the mortuary for post-mortem. On 28-12-2004, he arrested Zulfiqar Ali, appellant. On 31-12-2004 during interrogation the appellant made disclosure and got recovered .12 bore double barrel gun P/4 which was taken into possession vide recovery memo (Exh.PD). After completion of investigation, challan was prepared and sent to Court.
6. Dr. Arif Mehmood P.W.8 conducted post mortem of the deceased Muhammad Ishaq on 18-12- 2004 at 4-30 p.m. And found a lacerated wound of size of 2 c.m. Diameter. Margins were inverted and was of abdominal cavity deep on the right side of the abdomen at the illiac region area around the wound was blackened. Abdominal cavity was full of blood. Large intestine was ruptured. Illiac vessels and abdominal aorta were ruptured. One card board and six pellets were recovered from the abdominal cavity.
' According to opinion of the doctor, death in this case was result of shock and haemorrhage. Injury was ante mortem and sufficient to cause death in ordinary course of nature. Time between injury and death was few minutes and between post mortem and death was 6 to 9 hours.
7. At the commencement of trial charge was framed against the accused persons to which they pleaded not guilty and claimed trial.
8. In order to prove its case, the prosecution has produced as many as nine witnesses. At the end of prosecution evidence, the appellant was examined under section 342, Cr.P.C. He denied and dismissed each piece of prosecution evidence. In reply to the question, "Why this case against you and why the P.Ws. Deposed against you?" he said: "I have been falsely and maliciously enrobed in this murder case. The actual story behind the occurrence was that the deceased Ishaqued committed theft of a license gun owned by one Sharif and the gun was lying in adjacent shop. Victim Ishaque after committing theft of the weapon was going away and he had encountered on the way with one Zulfiqar. Ali son of Muhammad Ali with whom the victim grappled and murder of deceased Ishaque took place because of firing of anyone of the two, by pushing/pulling the trigger of weapon. The actual culprit was said Zulfiqar Ali, who was initially arrested by the police but with ulterior motive he was let of. The P.Ws are inimical to me have deposed in favour of prosecution with ulterior motive. "
' The appellant did not opt to record his statement, under section 340(2), Cr.P.C. He, however, produced Muhammad Sharif (D.W.1) in his defence. At the close of trial, the appellant was convicted and sentenced as noted above.
9. Learned counsel for the appellant contends that according to the prosecution case, the occurrence started due to sudden provocation as mother of the deceased used to throw filth in front of the shop of the appellant and because of that some altercation took place which ended in this occurrence; that no independent witness has been r produced and two independent witnesses of the village were mentioned in the F.I.R. But they were given up being unnecessary and only the complainant, who is widow of the deceased and Sarwar, who is cousin of the deceased, have been produced; that crime empty of .12 bore gun was recovered from the place of occurrence which was sent to the Forensic Science Laboratory and later on, .12 bore gun was recovered from the appellant and the report of Fire-arm Expert is negative which clearly indicates that the recovery has got no legal value in this matter; that two co-accused of the appellant duly nominated in the F.I.R. With specific roles were found innocent during the investigation and ultimately were acquitted by the learned trial Court and no appeal has been filed against their acquittal; that the appellant was teen-ager at the time of occurrence and in such a situation when he was alone and was intercepted by five persons, so in the circumstances he is entitled to certain exception and is not liable for capital sentence. Learned counsel lastly contends that the gun with which the appellant was statedly armed was a double barrel ,gun and he only fired one shot; that even according to the prosecution the occurrence was the result of sudden affair and as such the appellant is not entitled to be convicted for Qatl-e-Amd of Muhammad Ishaq, rather at the most, he is liable to be convicted under section 302(c), P.P.C.
10. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant submits that after altercation the appellant went home and brought his gun and thereafter fired at the deceased and such a circumstance indicates that the accused came back with the intention to kill the deceased and later on fired with his gun, which has been recovered from his possession. It is further submitted that negative report of Forensic Science Laboratory at the most indicates that the appellant has not produced the gun which was used in the occurrence and in the presence of credible ocular account, such negative report of Fire Arm Expert has no value; that the prosecution has fully proved its case through the statement of reliable convincing and natural witnesses. It is contended that mother of the deceased was an old lady and she was not in a position to appear in the trial Court. Lastly contended that the appellant is of reasonable age and of normal understanding and as such his act does not provide any exception while awarding him sentence.
11. We have heard the arguments of learned counsel for the parties and have also gone through the record.
12. In this case the occurrence took place at 9-30 a.m. In the month of December in front of shop of the deceased which was adjacent to the shop of the appellant. As per prosecution case earlier there was no dispute between the parties and matter flared up when the mother of the deceased while cleaning the shop threw rubbish in front of shop of the appellant and when he protested the matter flared up and ultimately the appellant along with others came with fire arms and in that process the appellant fired a shot with his double barrel .12 bore gun at the deceased who died at the spot. No overt act was attributed to the other two co-accused who were declared innocent during investigation and were ultimately acquitted by the learned trial Court. No appeal against acquittal was filed by the complainant.
13. A crime empty of .12 bore gun was recovered from the place of occurrence which was sent to the Fire Arm Expert. After arrest of the appellant a gun was recovered from him and the same was also sent to the Fire Arm Expert for comparison. However, the report is negative which indicates that crime empty recovered from the spot was not fired with .12 bore gun which was recovered from the appellant.
14. Complainant (P.W.2) is widow of the deceased whereas Muhammad Sarwar (P.W.3) is cousin of the deceased. They appeared in Court and were cross-examined at length but the defence remained unable to bring on record any circumstance indicating that they were not the natural witnesses of the occurrence. Learned counsel for the appellant has strongly emphasized on the point that Mst. Sawran Bibi, mother of the deceased, threw rubbish in front of the shop of the appellant, she was the most natural witness but she was not produced by the prosecution. We have minutely considered the statements of the witnesses in which it is stated that the occurrence regarding throwing rubbish took place at early hour and altercation between the appellant and the deceased started when the appellant came to open his shop, so non-appearance of Mst. Sawran Bibi in Court does not affect the prosecution case.
15. Presence of the complainant at the place of occurrence is natural. Even otherwise, F.I.R. Was registered after 1-1/2 hour of the occurrence. The F.I.R. Was registered at police station which was 8- K.M. Away, so in this case it can easily be said that F.I.R. Was registered promptly and in the. F.I.R.
Name of the appellant, role, weapon and injury caused by the appellant has duly been described.
16. Post-mortem report and statement of the doctor fully corroborates the ocular account. The appellant in his defence produced Muhammad Sharif (D.W.1). It has come on record that the said D.W. Was maternal grandfather of the appellant. He appeared in-Court after almost two years of the occurrence and remained unable to point out any circumstance indicating that earlier he made a statement in this respect. He introduced another story that one Zulfiqar son of Muhammad Ali who was his servant was in fact involved but later on the appellant i.e. Zulfiqar Ali son of Muhammad Aslam has been substituted. This statement of the D.W. Appears, to be far-fetched and is not worth reliance at all keeping in view that he is close relative of the appellant and naturally interested in his acquittal so his statement does not carry any weight.
17. So in this case F.I.R. Was registered promptly at police station and while considering statement of the complainant P.W.2, the widow of the deceased and statement of Sarwar (P.W.3), cousin of the deceased, who was resident of same area, we think that prosecution has proved its case beyond shadow of doubt. Both the appellant and the deceased were having their business in the shops adjacent to each other and thus identity of the appellant is not a matter in issue because both the parties and the witnesses knew each other. The occurrence took place in the broad- daylight at busy place which was surrounded by shops. No reason for false implication of the appellant and leaving actual culprit has been brought on record. Medical evidence, motive part of the story is fully, proved. We think that learned trial Court has rightly convicted the appellant under section 302(b), P.P.C. And there is no reason to differ with learned trial Court in this respect.
18. Now coming to the matter of sentence. It is observed that earlier there was no dispute between the parties and occurrence was the result of sudden flares up because of some petty reason. There was no premeditation or between the parties and such a circumstance 'can be considered as mitigation while awarding sentence. It has been held by the apex Court in Muhammad Arshad and 2 others v. The State (PLD 1906 SC 122) that in absence of background of previous enmity, or deep- rooted hostility between accused and the deceased and only minor altercation resulting into unfortunate occurrence and the act of single fire by the accused at the deceased are facts which cumulatively makes out a case for mitigation of sentence. The appellant was statedly armed with double barrel .12 bore gun and he fired a single shot and did not bother to repeat the same. The appellant was statedly twenty two years of age at the time of recording of statement under section 342, Cr.P.C. Which was recorded after two years of the occurrence. So at the relevant time he was only twenty years of age. It has been held by Hon'ble Supreme Court in case reported as Ghulam Sarwar and others v. Sajid Ullah and others (2005 SCM R 1054) as under:-- "Accused was a young lad of about . 19/20 years of age whose father, as per the prosecution itself, had been insulted by Amin Ullah, deceased.
It was because of his young age and because of the insult offered to his father the said convict had been found worthy of lesser penalty".
Section 302(b), P.P.C. Has provided two kinds of punishments i.e. Death or life imprisonment and it is always left to the discretion of Court to award lesser sentence of life imprisonment keeping in view circumstances of the case. Therefore, we think that in the given circumstances sentence of life imprisonment to the appellant will meet the ends of justice.
19. In view of what has been noticed and discussed above we 'do not find any force in Criminal Appeal No. 1943 of 2006 which is consequently dismissed and conviction of the appellant awarded by the learned trial Court under section 302(b), P.P.C. Is upheld. However, sentence of death awarded to the appellant uncle section 302(b)., P.P.C. Is converted into imprisonment for life. There is no provision of fine in section 302(b), P.P.C. So the appellant shall pay compensation of Rs.2,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default thereof he shall further undergo six months' S.I. Benefit of section 382-B, Cr.P.C. Is also granted to the appellant.
20. Since there are extenuating circumstances in this case, not calling for confirmation of death sentence, as such Murder Reference No. 27 of 2007 is answered in negative and death sentence is not confirmed.