' SYED MUHAMMAD KAZIM RAZA SHAMSI, J. --The appellant Muhammad lqbal alias Fauji son of Umar Din was tried in case F.I.R. No, 442, dated 06.02.2008 registered under Section 302, P.P.C. With Police Station Saddar Mianchannu, District Khanewal for the charge of Qatl-i-Amd of one Mst. Mobina Perveen. The learned Court, after conclusion of the trial, vide judgment dated 30.10.2008, convicted the appellant under Section 302(b), P.P.C. And sentenced to death.
2. Murder Reference No, 06/2009 has been sent by the learned Trial Court as required under Section 374, Cr.P.C. Seeking confirmation of death sentence awarded to Muhammad lqbal alias Fauji.
3. The appellant Muhammad lqbal alias Fauji being aggrieved of his conviction and sentence has sent his appeal (Crl, Appeal No, 192/2009) through the Jail authorities, which is being disposed of alongwith Murder Reference No, 06/2009, by this single judgment.
4. Fateh Muhammad complainant (PW.8) set the criminal machinery into motion through written complaint Ex.PA, on the basis of which F.I.R. (Ex.PA/A) was lodged. According to the complainant, on 06.02.2008 at about 1.30 p.m. He alongwith Muhammad Wakeel son of Mimmat Khan, Muhammad Pervez while standing outside his `Baithak' were chatting, the wife of the complainant Mst. Mobina Perveen was coming towards her house after purchasing eggs from the shop and when she was passing in front of the 'Baithak' of his neighbour lqbal Fauji, who was standing at the door of his 'Baithak', fired with his gun 12 bore at Mst. Mobina Parveen which hit on her left side of mouth due to which she fell down and succumbed to the injury within their view. After the occurrence accused Muhammad lqbal fled away while brandishing his gun 12-bore.
' The motive behind the occurrence was that due to previous grudge that the deceased Mst.
Mobina Perveen used to restrain the accused from frequent habitual aerial firing near the house.
5. After registration of the F.I.R., Rana Muhammad Idrees, Sub-Inspector/Investigating Officer (PW.10) visited the place of occurrence, inspected the dead-body of Mst. Mobina Perveen, drafted application Ex.PE for post-mortem examination, prepared inquest report Ex.PD, took blood-stained earth vide recovery memo. Ex.PG, prepared rough site plan Ex.PH, escorted the dead-body of the deceased for post-mortem examination and recorded the statements of the PWs under Section 161, Cr.P.C. The Investigating Officer on 07.02.2008 got prepared scaled site plan (in triplicate) Ex.PJ, Ex.PJ/A and Ex.PJ/B from Raja Muhammad lqbal, Draftsman and on 14.02.2008 he arrested the accused Muhammad lqbal and on his pointation recovered 12-bore gun (Ex.PF/1) from his house on 21.02.2008, which was taken into possession vide recovery memo. Ex.PE. After completion of the investigations the report under Section 173, Cr.P.C. Was submitted in the Court for trial of the accused where he was charge-sheeted. The accused professed innocence and claimed trial.
6. To bring home the guilt of the accused the prosecution has examined as many as ten witnesses.
The ocular account mainly consists upon the statements of PW.8 Fateh Muhammad (complainant) and PW.9 Muhammad Pervez (eye-witness) as well as statements of PW.10 Rana Muhammad Idrees, Sub-Inspector/Investigating Officer. The medical evidence is based upon the statement of Lady Dr. Rizwana Tabassum, WMO, THQ Hospital, Mianchannu, (PW.5), who conducted post- mortem examination of the dead-body of deceased Mst. Mobina Perveen and found the following injuries:--- "(1) A fire-arm lacerated entry wound measuring 3.5 x 1 cm with inverted margin on the right cheek about 3 cm below the right eye.
(2) A fire-arm lacerated exit wound measuring 7 to 9 cm involving half of the nose from the left side of upper and lower lips. Left eyebrow left eye, whole of left cheek, left ear is not involve, brain matter coming out through the wound. Margins are everted.
' Frontal and Parital wound in the brain matter damage on the left side of the head. Blood present in the cranial cavity."
' In her opinion the death was resulted due to damage to the vital organs i,e, brain by injury No, 1 caused with fire-arm weapon. All the injuries were ante-mortem and were sufficient to cause death in ordinary course of nature. The probable time between injuries and death was immediate and between death and post-mortem was about 08-10 hours.
7. The prosecution closed its evidence by giving up Muhammad Wakeel as well as Muhammad Abid PWs being unnecessary and by tendering report of Chemical Examiner Ex.PK and report of Serologist Ex.PL.
8. The prosecution evidence so recorded was confronted to Muhammad lqbal alias Fauji accused/appellant, who made his statement under Section 342, Cr.P.C. And while replying question No, 14 "Why the PWs deposed against you and why this case against you? " has deposed as under:- ' "This is a false case against me. The fire was made by some unknown person from the southern side with rifle. The same fact has been verified by the post-mortem report and other medical evidence. When the actual culprit was not traced, I was falsely involved in this case due to exchange of hot words a few days prior to this occurrence between me, the complainant and the victim. I am a retired army personnel. I am a responsible person of the society. I am not the perpetrator of this murder. PWs are interested witnesses. PWs Fateh Muhammad is the husband of the deceased whereas PW.9 is a friend of PW.8, therefore, they have deposed against me. "
9. The appellant neither opted to make statement under Section 340(2), Cr.P.C. To disprove the allegations levelled against him in the prosecution evidence nor produced any evidence in defence.
10. Learned counsel for the appellent while assailing the legality of the impugned judgment has submitted that the learned Trial Court has not properly read the material placed before it through the prosecution evidence as such the finding regarding conviction of the appellant suffers from illegality. In this connection, learned counsel has diverted the attention of the Court to the postmortem examination report Ex.PC and submitted that the injuries mentioned in the same materially contradict the statement of the complainant (PW.8), which indicates that PW.8 and PW.9, claiming to be the eye-witnesses of the occurrence, were not present at the time of occurrence. He claimed the benefit of doubt on the basis of contradiction in the medical evidence vis-a-vis the ocular account. He has further argued that the witnesses, besides being related with the deceased and interested in the prosecution of the appellant, had reached at the spot after the occurrence and they had not seen the appellant firing at the deceased Mst. Mubina Perveen.
Similarly while criticizing the factum of recovery of crime weapon at the instance of the appellant, it is the argument of the learned counsel that the appellant did not make any fire upon the deceased, which fact is established from the non-recovery of the crime empty from the place of occurrence, the alleged weapon when recovered was empty and no live cartridge was taken into possession by the Police and the weapon was a licenced one, therefore, the prosecution could not prove on record that the weapon allegedly recovered on the pointation of the appellant was ever used in the happening of the incident. The next argument of the learned counsel is with regard to the motive part of the occurrence, which according to the learned counsel could not be established by the prosecution beyond any reasonable doubt, even no cogent and confidence inspiring evidence has been tendered in support of this fact. He pointed out that PW.9 had candidly stated that he did not know about the reason for the incident, so according to the submission of the learned counsel the case of the appellant in this circumstance was not one of awarding normal penalty of death, rather this could be treated as an extenuating circumstance for awarding lesser sentence.
11. The submissions made by the learned counsel for the appellant have been controverted by the learned Deputy Prosecutor General with the submission that the F.I.R. Was lodged in respect of the occurrence within a span of less than two hours in which specific allegation of firing had been levelled against the appellant, which resulted into the death of the deceased. According to the arguments about the promptitude in lodging the F.I.R., there is no possibility for false implication of the appellant after deliberation and consultation. He has further pointed out that the occurrence had taken place in the daylight thus the identity of the appellant, who is neighbour of the complainant, is not mistaken one. He further added that PW.9 is not either related to the complainant or to the deceased, rather is an independent person, who had seen the occurrence and deposed the same in the Court as PW.9, which extremely shows the bona fide of the complainant and the prosecution that the statement of an independent person has been relied upon, who otherwise had no grudge or against the appellant. Regarding the dichotomy in the statement of PW.8 vis-a-vis PW.5, the Medical Officer, regarding seat of injury, it is argued that this alleged contradiction in the evidence appears to be quite natural as the complainant instead of falsely providing the seat of injuries received by the deceased had straightaway mentioned that the fire hit on the mouth of the deceased without specifying that on which side it was inflicted thus this contradiction is not material and helpful to the defence giving any benefit. Learned counsel lastly submitted that the judgment rendered by the learned Trial Court is neither based upon extraneous material nor suffers from any misreading and non-reading of material piece of evidence, thus prayed for the dismissal of the appeal.
12. We have given emphatic consideration to the submission made by the learned counsel for the parties and have also reappraised the evidence available on the record. As is evident from Ex.PA/A, the F.I.R., the wife of the complainant Mst. Mubina Perveen was returning to her house at about 1.30 p.m. On the fateful day after purchasing eggs from the shop and when she passed in front of the 'Baithak' of the appellant, he fired with his gun 12 bore hitting on the left side of her face, who succumbed to the injuries at the spot whereas the appellant fled away .'ith weapon. The motive of the occurrence reportedly is that the appellant was in the habit of firing and the deceased had restrained her from doing so regarding which the appellant nourished grudge and ultimately killed the lady. These allegations have been proved by PW.8 Fateh Muhammad complainant and Muhammad Parvez (PW.9) by providing ocular account of the incident. It is note worthy that PW.9 Muhammad Parvez is not related to either of the parties, rather seems to be an independent person, who was present with the complainant and one another Wakeel (given up PW) at the door of the complainant, so in view of this position of PVV.9 his testimony cannot be discarded on the ground that he was interested person, rather he is the natural and independent person against whom no has been alleged by the defense in his cross-examination. PW.8 and PW.9 remained consistent with regard to the happening of the incident in their testimonies as well as the injuries received by the deceased. They have categorically denied the defense suggestion that it was blind murder and some other un-known person had killed the lady. They had also den', that at the time of occurrence they were not present at the pot. Learned Trial Court had duly appreciated the statements of both these PWs to conclude that the PWs were present at the spot and their testimonies are credible and confidence inspiring.
13. Regarding the objection of learned defense counsel in respect of contradiction in the medical evidence and ocular account as to the seat of injuries received by the deceased, it is sufficient to say that PW.8 in his statement had deposed that the deceased had received inquiry at her face, which fact is established by Ex.PC where the Medical Officer has pointed out the exact place at the face where the injury has been caused with the fire-arm. Even otherwise it cannot be expected from a complainant, who was also facing agony of the incident to detail out graphically the places where the fires were received by a deceased person. It would be suffice if the parts of the body are mentioned where the injuries were received by a person instead of minutely providing the details of the places wherefrom the bullet had entered and exited. If such details are provided in the first information report that they may make the story as un-natural as in the panic it is not possible for an ordinary person to watch in detail the infliction of the injuries. Another objection of the learned counsel that according to the statement of PW.5 the deceased had received bullet injury instead of injury from gun 12 bore has no legs to stand as the dimension of the injury provided by the Medical Officer is indicative of the fact that it was not caused with bullet. Further, it cannot be expected from a Medical Officer to describe the nature of weapon used in the commission of the offence because a Medical Officer, is not a ballistic expert and cannot give the nature of the weapon used by a culprit.
14. So far as the case of the prosecution in respect of recovery of the crime weapon at the instance of the appellant is concerned, it is evident from the record that the same was not sent to the Forensic Science Laboratory for matching the weapon with the crime empty, rather in the instant case as per evidence no crime empty was collected by the Investigating Officer while inspecting the place of occurrence. Even otherwise the weapon allegedly used was not an illegal fire-arm rather it was a licensed weapon of the appellant.
15. The record when examined is indicative of the fact that PW.8 and deceased used to restrain the appellant from making aerial firing and in this respect four days prior to the occurrence a scuffle had taken place between two parties, who are immediate neighbourers of each other. In this respect PW.8 had made statement. This piece of evidence does not appear to be sufficient to find out the exact reason for the murder of the lady. Admittedly the parties have no animosity previously except an uncorroborated incident, which had allegedly taken place four days prior to the occurrence, thus the genesis of the occurrence is not vivid through the prosecution evidence.
So it can easily be concluded that the case of the prosecution on the aspects of recovery of crime weapon and motive of the occurrence is not clear, which factors could be considered as mitigating circumstances for converting sentence of death into imprisonment for life.
16. The perusal of the impugned judgment indicates that learned Trial Court while convicting the appellant had not awarded compensation to the legal heirs of the deceased Mst. Mubina Perveen as required by Section 544-A, Cr.P.C. The law has provided that whenever a person is convicted for an offence for in the commission whereof death of the person is caused then the Court is bound to order award of compensation to the legal heirs of the deceased person, which compensation is to be recovered as an arrears of land revenue in case of default and may suffer imprisonment for six months. If the Court while convicting the person does not order the award of the compensation then it is required to record reasons in writing for not doing so. In the instant case the Court neither has recorded any reason for not awarding the compensation nor has awarded the same thus the Court has ignored the provision of law in this respect. After considering all attending circumstances, we are inclined to award compensation of Rs, 100,000/- (Rupees One Lac only) to the legal heirs of the deceased and in case of default in the payment of the compensation to direct the appellant to suffer six months' imprisonment.
17. For what has been discussed above, the appeal in hand is dismissed with the modification of commuting death sentence awarded to the appellant Muhammad lqbal alias Fauji into imprisonment for life with benefit of Section 382-B, Cr.P.C. The appellant is directed to pay compensation of Rs, 100,000/- to the legal heirs of the deceased Mst. Mubina Perveen and in default whereof to further undergo six months' imprisonment. Consequently, Murder Reference No, 06/2009 sent by the learned Trial Court seeking confirmation of death sentence awarded to appellant Muhammad lqbal alias Fauji is answered in NEGATIVE and death is not confirmed.
18. The Addl. Registrar of this Bench shall transmit the copy of this judgment to Mr. Muhammad Bukhsh Masood Hashmi, Addl. Sessions Judge, the author of the impugned judgment, for his information and perusal. Sentence reduced.