SARDAR TARIQ MASOOD, J.---Aurangzeb alias Pappu appellant along with Hannan and Subah Sadiq (acquitted accused); was tried by the learned Additional Sessions Judge Depalpur District Okara, in Private Complaint titled Allah Ditta v. Aurangzeb etc. Under sections 302/148/149, P.P.C., arising out of case FIR No,28 dated 15-1-2007 registered under sections 302/148/149, P.P.C. At Police Station Hujra Shah Muqeem, District Okara. The learned trial Judge vide judgment dated 13-4-2010 convicted the appellant for the murder of Muhammad Latif deceased under section 302(b), P.P.C.
And sentenced him to death. He was further directed to pay Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased or in default thereof to further undergo 6 months' S.I. Co-accused Hannan and Subah Sadiq were acquitted of the charge.
Aurangzeb alias Pappu appellant has filed Criminal Appeal No,998, of 2010, against his conviction and sentence whereas the learned trial Court has sent a reference (Murder Reference No,245 of 2010) under section 374, Cr.P.C. For the confirmation of death sentence of the appellant or otherwise. Allah Ditta complainant has filed Criminal Revision No,545 of 2010 for enhancement of the compensation. We propose to dispose of all these matters by this single judgment.
2. Brief facts of the case as narrated in the private complaint (Exh.PB) of complainant Allah Ditta (P.W.1) are that his brother Muhammad Latif (deceased), who was Salesman at Al-Noor Petrol Pump Lalewala. On 15-1-2007 at 9-30 p.m., he along with Muhammad Latif (deceased), Munir Ahmad and Ali Sher (P.W.2) were present at the said Pertrol Pump, when a white colour car, driven by Muhammad Ismaeel (P.O.), came there. Muhammad Latif (deceased) went to fill the petrol in the said car. Aurangzeb appellant, armed with .30-bore pistol, Hannan and Subah Sadiq (acquitted accused) armed with rifles, came out of the said car. Hannan (acquitted accused) raised lalkara that Muhammad Latif be not spared as he has insulted and disgraced them, on which Aurangzeb appellant fired with his .30-bore pistol which hit on the right shoulder of Muhammad Latif (deceased), who fell down and succumbed to the injuries at the spot. The complainant and his companions made hue and cry and the accused while firing fled away.
The motive of the occurrence was that on the marriage ceremony of their cousin a quarrel took place between the parties.
3. After completion of the investigation, report under section 173, Cr.P.C. Was submitted against the accused/appellant in the Court for trial. Charge was framed to which the appellant pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many 7-P.Ws., whereas two C.Ws. Were also examined by the learned trial Court.
Allah Ditta complainant (P.W.1) and Ali Sher (P.W.2) are the witnesses of the ocular account.
C.W.2 Muhammad Aslam Pervaiz S.I., is the Investigating Officer of the FIR.
P.W.5 Dr. Abdul Aziz, conducted the post-mortem examination on the dead-body of Muhammad Latif (deceased) and found following injuries on his person:-
(1) Lacerated wound 2 cm x 1/2 cm x deep going, margins inverted at interior and lateral side of right shoulder, 7 cm from, top of shoulder (Entry wound) on dissection under lying Axillary vessels damaged, right second rib outer side fractured. Pleura damaged. Apex of right lung damaged, chest cavity full of blood. Right third rib at posterior end fractured. Track passing behind spine and metallic body recovered from scapular muscle of left side (at medial margins of left scapula).
In the opinion of the doctor the cause of death is haemorrhage shock which, is sufficient to cause death in ordinary course of nature of life. Probable time between injury and death was immediate and between death and postmortem was 12 hours.
Rest of the witnesses are formal in nature.
4. The statement of the appellant under section 342, Cr.P.C. Was recorded. He denied the allegations levelled against him and claimed his innocence. In answer to the question, "why this case against you and why the P.Ws. Had deposed against you, the appellant Aurangzeb alias Pappu stated a under:- "I am innocent. I have been falsely involved in this case, due to political fraction and ulterior motive. The P. Ws. Have deposed against me only due to relationship with the deceased. It was, unseen occurrence, after summoning the P. Ws. And concocting a false version. I have been falsely involved in this case. During investigation, prosecution case was found false and fabricated one. During investigation, prosecution case was cancelled by the local police as well as by the superior police officers and I was declared innocent. It was an unseen occurrence."
The appellant did not opt to make statement under section 340(2), Cr.P.C. In disproof of the allegations levelled against him by the prosecution nor did he produce any defence evidence.
5. Learned counsel for the appellant contends that during the investigation the appellant along with his co-accused, was found innocent due to which the complainant filed private complaint after more than three months of the occurrence; that the FIR is silent regarding any source of light; that no employee of the petrol pump was produced as a witness in this case and only two brothers of the deceased were produced by the prosecution as eye-witnesses of the occurrence; that the presence of the witnesses at the place of occurrence is highly doubtful; that the alleged eye- witnesses are chance witnesses as their residence is at a distance of 20 acres from the place of occurrence; that the postmortem was delayed which indicates that the FIR was chalked out after consultation and deliberation; that nothing was recovered at the pointation of the appellant nor any empty was recovered from the spot; that the wording of lalkara was changed during the trial as in the FIR it is mentioned that the assailants raised lalkara for giving taste to the deceased for quarreling whereas during the trial it was claimed by the prosecution witnesses that the lalkara was raised that Muhammad Latif be not spared as he has insulted and disgraced the appellant and his co-accused.
6. On the other hand, learned DPG assisted by the learned, counsel for the complainant opposed this appeal by arguing that the appellant was specifically nominated in the FIR which was chalked out within two hours of the occurrence whereas the police station was at distance of six kilometers from the place of occurrence; that according to the prosecution Aurangzeb alias Pappu appellant fired shot with his pistol hitting on the right shoulder of Muhammad ,Latif (deceased) and according to the doctor the said injury was fatal and was sufficient to cause death in ordinary course of nature; that the police under the influence of local M.N.A. Declared the accused as innocent without any solid data due to which the complainant was forced to file private complaint; that the police under the influence of local M.N.A. Did not recover crime empties from the spot nor the police made any effort to recover the weapon of offence.
7. We have heard the arguments of learned counsel for the parties and have also gone through the record with their able assistance.
8. The occurrence took place at the petrol pump where Muhammad Latif (deceased) was working as a salesman. Both the witnesses of the ocular account were real brothers of the deceased and they were present there at the time of occurrence. Immediately after the occurrence Allah Ditta (P.W.1) left the place of occurrence and lodged the report directly at the police station. He reached at the police station after about two hours of the occurrence. The place of occurrence was at a distance of six kilometers from the police station. It was not a case where the matter was reported to the police outside the police station rather a direct FIR was lodged at the police station. Although it was argued that as the postmortem was delayed, hence the FIR was chalked out on the following day after consultation and deliberations but we observe that Talib Hussain ASI, who chalked out the FIR appeared as P.W.6. According to the FIR, the same was chalked out at 11-30 p.m. But the said P.W. Was not cross-examined by the defence during the trial and his assertion that he recorded the said FIR at the given time was admitted. So it cannot be presumed that the FIR was chalked out on the following day rather the same was straightaway lodged by the complainant after the occurrence at the police station.
Although the postmortem was conducted on the following day at 11-30 a.m. But it has come on record that the doctor was not available and due to non-availability of the doctor the postmortem was conducted at 11-30 a.m. Shaukat Ali (P.W.3), who identified the dead body, during cross- examination categorically stated that the postmortem was conducted on the next day due to non- availability of the doctor. He was not suggested by the defence that the-doctor was available and the postmortem was conducted with delay for the reason that the FIR was not chalked out till that time. Even otherwise when the FIR was chalked out within two hours of the occurrence, the delayed postmortem is not fatal to the prosecution.
9. Allah Ditta (P.W.1) and Ali Sher (P.W.2) are the real brothers of the deceased. Both witnesses claimed that they were present at the said petrol pump along with Muhammad Latif (deceased).
Their residence is at a distance of 15/20 acres from the place of occurrence and it had been brought on the record during cross-examination that on the day of occurrence, both the witnesses went to the petrol pump to provide meal to Muhammad Latif. Their presence at the petrol pump where the deceased was working as a salesman at that time, cannot be doubted and the reason of their presence was brought on the record by the defence during cross-examination. Both the witnesses although related to the deceased but have no animosity or motive to falsely involve the appellant in this case. Mere relationship of the said witnesses with the deceased is not sufficient to term them as interested witnesses. They remained consistent on each and every material point.
Even no contradiction or improvement was pointed out by learned counsel for the appellant in their statements.
The witnesses and the appellant are known to each other previously. It had come on the record that at the place of occurrence the tube-lights were on. Even otherwise, it is not possible that the petrol pump would be operative without any light. Even during load shedding the facility of generator is normally available at the petrol pumps. So the business of petrol pump cannot run without any light and availability of light was brought on record during cross-examination by the defence. Even in the site plan tube lights were shown. So there can be no mistaken identity in this case. So far non-production of any employee of the petrol pump is concerned; it has come on the record that at the time c of occurrence no other employee, except Muhammad Latif (deceased) was present at the petrol pump and the witnesses were sitting with their bother at the relevant time. So the relatives, who were present at the spot, were produced by the prosecution. It is well settled law that the relationship of the witnesses with the deceased would not be sufficient to discard the evidence adduced by the said witnesses. Such related P. Ws.. Can be believed if intrinsic worth of their testimony inspires confidence and the same leads to an inference that the witnesses have seen the occurrence. Both the witnesses remained consistent on each and every material point and gave minute detail of the occurrence so far time, place and mode of occurrence is concerned. So the ocular account furnished by the prosecution is trustworthy and believable.
10. According to the prosecution the fire shot of Aurangzeb alias Pappu appellant landed on the right shoulder of the deceased. The doctor observed an entry wound on the right shoulder and a metallic foreign body was recovered from the left scapular region. According to the prosecution after receiving the fire shot Muhammad Latif succumbed to the injuries at the spot and the doctor also gave the duration of the injury and death as immediate. The injury attributed to the appellant was sufficient to cause death in Ordinary course of nature. So the medical evidence fully supported the ocular account furnished by Allah Ditta (P.W.1) and Ali Sher (P.W.2).
11. So far non-recovery of empties and non-recovery of weapon of offence from the appellant is concerned, the same is always considered to be supporting evidence but in this to the complainant due to the influence of the sitting M.N.A. The police declared the appellant as innocent and the complainant was forced to file private complaint in which the appellant and his co- accused were summoned and tried by the court. Even in the absence of recovery, the prosecution remained successful in proving the case against the appellant though the ocular account which is supported by the medical evidence so far the role of the appellant is concerned. The witnesses of ocular account although are related to the deceased but they have no enmity with the appellant nor have any motive to falsely implicate him in this case. The matter was reported to the police immediately after the occurrence. The delay in the postmortem was explained in the statement of Shaukat Ali (P.W.3). The prosecution has proved its case against the appellant beyond any shadow of doubt and the trial court has rightly convicted the appellant under section 302(b), P.P.C.
12. We observe that in this case in the FIR it was simply stated that earlier a quarrel took place between the deceased and the accused persons. It was not claimed by the appellant that the said quarrel took place in his presence but subsequently while filing the private complaint after three months of the occurrence the complainant claimed that in his presence the said occurrence of quarrel took, place. He claimed that Muhammad Latif (deceased) gave slaps to Aurangzeb alias Pappu appellant. This improvement was made by the complainant after more than three months of the occurrence certainly in order to strengthen the motive which was almost absurd while lodging the FIR. Neither the complainant nor Ali Sher (P.W.2) claimed during investigation that they were present at the time of earlier quarrel but subsequently they made improvement to this effect.
No independent witness was produced to prove the motive in this case and the immediate motive of the occurrence shrouded into mystery. So the prosecution remained fail to prove the motive against the appellant. During the occurrence the appellant fired a solitary shot and even did not try to repeat the same. Due to above mentioned two reasons, the appellant is entitled. For the mitigation in his sentence.
13. Consequently, while maintaining the sentence of Aurangzeb alias Pappu appellant under section 302(b), P.P.C., his sentence is reduced from death to imprisonment for life, with benefit of section 382-B, Cr.P.C. The compensation awarded by the trial Court and the sentence in default thereof is maintained. With the above modification in the sentence of Aurangzeb alias Pappu appellant, Criminal A. No,998 of 2010 filed by him is dismissed.
14. Due to above mentioned reasons Criminal Revision No,550 of 2010 filed by complainant Allah Ditta, is also dismissed.
15. Death sentence of Aurangzeb alias Pappu appellant is not confirmed. Murder Reference No,245 of 2010 is answered in negative.