Ch. Mushtaq Ahmed, J.--Appellant Ahmed Ali has challenged his conviction and sentence through the above cited criminal appeal. He was tried by learned Additional Sessions Judge, Sahiwal in case FIR No, 91 dated 6.4.2009 registered under Sections 302, 34, PPC at PS Fateh Sher, District Sahiwal. State has sought confirmation of death sentence awarded to Ahmed Ali, appellant through Murder Reference No, 194 of 2010. We propose to dispose of both these matters through this single judgment.
2. Learned Additional Sessions Judge, Sahiwal vide his judgment dated 30.9.2010 convicted the appellant under Section 302(b), PPC to Death. He was also held liable to pay Rs, 1,00,000/- on as compensation to the legal heirs of deceased Shahid Ali in terms of Section 544-A, Cr.P.C. And in case of default to further undergo simple imprisonment for six months.
3. Brief facts as disclosed in complaint (Exh.PE) are that on 6.9.2010 he alongwith his son Shahid Ali, daughter Afshina Bibi and son in law Ghulam Farid was present in his house when at about 10.30 a.m. Ahmad Ali (present appellant) armed with .30 bore Pistol and his son Sikandar Ali armed with pistol came there on Honda Motorycle No, SL-6890; they stopped the motorcycle infront of the house of complainant and raised lalkara that Shahid be taught a lesson for contracting marriage with Safina Bibi alias Fauzia D/o Ahmad Ali accused; complainant and other inmates of the house came at the door when Ahmed Ali, present appellant within the sight of complainant as well as other PWs started firing on Shahid Ali; one fire shot hit Shahid Ali on left side of his arm pit, second fire shot hit on his chest and third fire he received on right side of his hip (iliac crest) and he fell down; thereafter accused persons fled away from the spot; complainant alongwith PWs attended Shahid Ali but he succumbed to the injuries.
' Motive behind the occurrence was that Shahid Ali, deceased contracted marriage with daughter of appellant Ahmed Ali and sister of Sikandar All accused about 3/4 months ago against their wishes and due to this grudge Ahmed Ali and his son Sikandar in furtherance of their common intention committed murder of the son of complainant.
4. On the above information, I.O. Investigated the case and submitted under Section 173, Cr.P.C.
Prosecution in order to prove charge produced as many as 10 witnesses. Out of them, PW-4 Ahmed Ali, complainant and PW-5 Mst. Afshina furnished the ocular account. PW-8 Allah Ditta, S.I. And PW- 10 Zahoor Ahmed, S.I. Are the Investigating Officers of this case. PW-1 Dr. Saeed Ahmed provided medical evidence. The remaining witnesses are official need not be mentioned.
5. After giving up Ghulam Farid being unnecessary and tendering in evidence reports of Serologist (Exh.PN), F.S.L (Exh.P0) and Chemical Examiner (Exh.PM) closed the prosecution evidence on 8.9.2010. Thereafter statement of appellant under Section 342, Cr.P.C. Was recorded in which he denied the charge' and professed his innocence.
6. Learned trial Court after hearing arguments, recorded conviction and awarded sentence to the appellant as mentioned in the opening paragraph of, this judgment.
7. Learned counsel for the appellant argued that the eyewitnesses are inter se related so their testimony is not truth worthy; that there is material contradictions between the statements of both eye-witnesses; that in the FIR three fire shots have been alleged against the appellant but according to MLR there were two fire-arm injuries on the person of deceased, this fact itself makes the prosecution highly doubtful; that the eye-witnesses could not establish their presence at the place of occurrence at the relevant time; that recovery of .30 bore pistol is planted upon the appellant and that it was a accidental death as one Ghulam Farid had pistol, he fired at Ahmed Ali accused which accidentally hit Shahid Ali, deceased.
8. Conversely, learned law officer assisted by learned counsel for the complainant submitted prosecution has proved its case by direct evidence furnished by PW-4 and PW-5 being inmates of the house; that it was promptly lodged FIR eliminating any chance of deliberation or consultation; that defense has failed to prove any animosity or ill will against the appellant to false implicate him; that substitution is a rare phenomena as there was no reason for complainant to spare the real culprit and implicate appellant for the murder of his real son; that learned trial Judge after due appreciation of evidence convicted the appellant which finding is in line with medical; that ocular account was also supported by medical evidence.
9. Arguments heard. Record perused.
10. Admittedly it was a day light occurrence which took place on 6.4.2009 at 11.00 a.m. Distance of the place of occurrence from Police Station was just three furlongs. Crime was reported at 11.15 a.m.
So' it was a promptly lodged FIR within short span of time having complete detail qua names of accused with their specific role, viewing the occurrence by the witnesses as well as mode of occurrence. Ocular account, was furnished by PW-4 Ahmed Ali, .(complainant) and his daughter PW-5 Mst. Afshina. Both the witnesses with one voice categorically and in a straight forward manner stated that on the day of occurrence Ahmed Ali, accused duly armed with .30 bore Pistol came to their house and fired at Shahid Ali, deceased within their sight due to which he died at the spot. Place of occurrence in this case was the main gate of house of complainant. So both the witnesses being inmates of the house were natural witnesses. Their testimony cannot be doubted on any stretch of imagination. Defence put so many questions regarding receipt and locale of injuries by the deceased, mode of occurrence and their presence at ,the spot but both the witnesses remained firm on their stand. Medical evidence, in this case was furnished by PW-1 Dr. Saeed Ahmed who conducted autopsy on dead body of Shahid Ali. He observed two entry wounds one at right side of chest and the other on right buttock of the deceased, which were sufficient to cause instantaneous death of the deceased. Same was the version of complainant in the First Information Report. Both these injuries were specifically attributed to the appellant. So, medical evidence fully corroborates the ocular account.
11. Appellant Ahmed Ali admitted in his statement u/S. 342, Cr.P.C. That he went to the house of complainant to meet his daughter Mst. Safina who married with the deceased against his wishes.
So motive for committing the occurrence is proved. The defence plea taken by the appellant in his statement u/S. 342, Cr.P.C. That it was accidental death is not established on record.
12. According to eye-witnesses appellant Ahmed Ali was armed with .30 bore pistol at the time of occurrence. During investigation he got recovered :30 bore Pistol (P1) which was sent to Forensic Science Laboratory on 4.5.2009 for comparison with two crime empties of .30 bore pistol collected from the place of occurrence by Investigating Officer' at the time of his first visit to the place of occurrence. According to the report of FSL (Exh.P0) the crime empties were found wedded with said .30 bore pistol. So, the positive report of FSL further corroborates the ocular account. So, we are of the considered opinion that prosecution in this case has proved the charge of Qatl-i-Amd against Ahmed Ali, appellant.
13. As far as quantum of sentence is concerned, appellant is first offender as there is nothing on record to show his previous involvement in such like offences. In his statement recorded under Section 342, Cr.P.C., appellant confessed his guilt. Moreover, it was deceased's own conduct which prompted the appellant to attack him as he contracted run away marriage with appellant's daughter. In this backdrop, in our view, death penalty was not warranted and alternate sentence imprisonment for life was sufficient to meet the ends of justice. Therefore, we convert death sentence of appellant Ahmad Ali into imprisonment for life with benefit of Section 382-B, Cr.P.C.
However, the amount of compensation shall remain intact. With above modification, Criminal Appeal No, 296 of 2011 is dismissed.
14. As a sequel to the above, Murder Reference No, 194 of 2010 for confirmation of death sentence of Ahmed Ali, convict is answered in Negative. His death sentence is not confirmed.