' Ch. Mushtaq Ahmed, J.--Appellant Muhammad Akram has challenged his conviction and sentence through the above cited criminal appeal. He was tried alongwith two others by learned Additional Sessions Judge. Sahiwal in case FIR No, 410 dated 3.10.2009 registered under Sections 302, 109, 34, PPC at Police Station Dera Rahim, District Sahiwal. State has sought confirmation of death sentence awarded to Muhammad Akram, appellant through Murder Reference No, 189 of 2010. We propose to dispose of both these matters through this single judgment.
2. Learned Additional Sessions Judge, Sahiwal vide his judgment dated 28.9.2010 convicted the appellant under Section 302(b), PPC to Death. He was also held liable to pay Rs 50,000/- as compensation to the legal heirs of deceased in terms of Section 544-A, Cr.P.C. And in case of default to further undergo simple imprisonment for six months. His co-accused, namely, Allah Wadhaya and Mst.Sardaran Bibi have been acquitted.
3. Brief facts as disclosed in complaint (Exh.PA) are that on 3.10.2009 at 6.30 p.m. He along with Zahoor Ahmed and Muhammad Ameen, his brother was going towards Chak No, 112/9-L Budhg Dhakku on Motorcycle Bearing Registration No, 3659-SLO whereas Muhammad Aslam and Muhammad Sharif were coming behind them on foot; when they reached near land of Malik Muhammad Asghar Dhakku in the area of Chak No, 112/9-L accused Muhammad Akram armed with .30 bore pistol, Muhammad Abbas (P.O.). Armed with .30 bore Pistol, Allah Wadhaya empty handed being boarded in Tractor-Trolley came there infront of them; Allah Wadhaya raised lalkara to Muhammad Akram and Abbas to fire at Muhammad Ameen; in response to that Muhammad Akram (present appellant) made fire shot with his .30 bore pistol which hit on chest of Muhammad Ameen who after receiving fire shot fell on the ground; on hearing firing Muhammad Aslam and Zahoor Ahmad reached at the spot; they tried to catch hold accused persons but they ran away on tractor-trolley after making ariel firing; complainant attended his injured brother Muhammad Ameen and shifted him to hospital where he succumbed to the injuries.
' Motive behind the occurrence was that father of complainant, namely, Allah Wadhaya divorced mother of complainant and wanted to transfer his land in the name of his nephew Muhammad Akram, accused; complainant party forbade Allah Wadhaya from transferring his landed property in the name of Muhammad Akram who took it ill and in order to take revenge upon abatement and instigation of Mst.Sardaran Bibi (since acquitted) committed murder of Muhammad Ameen, deceased.
4. On the above information, I.O. Investigated the case and submitted report under Section 173, Cr.P.C. Prosecution in order to prove charge produced as many as eleven witnesses. Out of them, PW1 Muhammad Yasin, complainant and PW-3 Zahoor Ahmed furnished the ocular account. PW-11 Fayyaz Hussain, Inspector conducted the investigation. PW-9 Dr. Hafeez-ur-Rehman provided medical evidence. PW-10 Muhammad Saeed Akhtar, Draftsman prepared the scaled site-plan. The remaining witnesses are more or less of formal nature need not be mentioned.
5. After giving up Allah Ditta, Muhammad Aslam and Mumtaz Ahmed, Constable being unnecessary and tendering in evidence reports of Serologist (Exh.PS), F.S.L (Exh.PT) and Chemical Examiner (Exh.PU) besides certified copy of bail applications as Exh.PV and Exh.PV/1 closed the prosecution evidence on 14.9.2010. 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 prosecution his failed to prove the charge beyond reasonable doubt; that complainant cannot take advantage of version of accused recorded under Section 842, Cr.P.C. Which is never treated to be a substantial piece of evidence; that allegedly complainant party was on motorcycle at the time of occurrence but said motorcycle was never taken into possession by the I.0.; that the statements of eye-witnesses are full of contradictions, they could not establish their presence at the spot; that PW-3 Zahoor Ahmed was resident of faraway place from the place of occurrence, hence, at the relevant time his presence is not established on record; that PW-2 was inimical towards the accused as during cross- examination he admitted that before this occurrence accused Allah Wadhaya and Mst. Sardaran Bibi had involved him in a theft case; that the prosecution could not prove motive part of the occurrence beyond reasonable doubt; that fake recovery of 30 bore pistol was planted upon the appellant and that the impugned judgment is liable to be set aside and the appellant entitled to acquittal.
8. Conversely, learned law officer assisted by learned counsel for the complainant submitted that appellant was nominated with specific role in a promptly lodged FIR; that ocular account was supported by medical evidence and motive; that learned trial Court correctly appreciated the evidence and rightly convicted the appellant; that finding recorded by trial Court was not open to any exception and that the eye-witnesses fully implicated the appellant who had no occasion to falsely implicate him.
9. Arguments heard. Record perused.
10. The incident took place at 6.30 p.m. On 3.10.2009 which was reported by Mul,..Arnmad Yasin (PW- 1), brother of the deceased Muhammad Ameen at 8.35 p.m. On the same day in which present appellant was nominated with specific role of making fire shot with his .30 bore pistol. At the time of occurrence deceased was in the company of Muhammad Yasin, his brother and PW-3 Zahoor Ahmed. The present appellant Muhammad Akram was in the company of Allah Wadhaya co- accused who is father of complainant Muhammad Yasin and deceased Muhammad Ameen. As per version of complainant their father Allah Wadhaya had divorced their mother and thereafter he intended to transfer his land to Muhammad Akram, appellant who is nephew to which deceased took exception which resulted into incident of his death at the hands of present appellant. Accused and the eyewitnesses are closely related inter se. Fatal fire-arm injury was attributed to the present appellant. Case was also got registered with promptitude excluding chance of deliberation and consultation. Both the eye-witnesses have explained their presence at the place of occurrence alongwith the deceased. Allah Wadhaya co-accused (since acquitted) was real maternal uncle of the present appellant and father of deceased Muhammad Ameen and complainant Muhammad Yasin. Ocular account was also corroborated by medical evidence furnished by PW-9 Dr.Hafiz-ur- Rehman who conducted autopsy on dead body of Muhammad Ameen and noted lacerated wound with inverted margins on the right side of chest. The doctor had also recovered metallic bullet from back left side of abdomen of deceased which was handed over to PW-7 Muhammad Afzal, C-526. He deposited it in the office of FSL, Lahore on 16.11.2009. A .30 bore pistol got recovered by the present appellant was also deposited by PW-7 on 14.12.2009 in the office of FSL, Lahore which was found wedded with bullet recovered from dead body at the time of post-mortem examination through report of FSL (Exh.PT). Thus prosecution successfully proved charge against the present appellant.
11. PW-3 Zahoor Ahmed though is husband of Mst. Parveen Bibi sister of the deceased. He denied suggestion that he is permanent resident of Chak No, 48-D, Tehsil Depalpur, District Okara as suggested by the defence. Learned trial Court acquitted Allah Wadhaya and Mst. Sardaran Bibi as only Lalkara was attributed to Allah Wadhaya whereas Mst.Sardaran Bibi was charged for the offence of abetment. They were extended benefit of doubt keeping in view the principle of safe administration of justice. On re-appraisal of evidence we are convinced that prosecution in this case had successfully proved charge against present appellant beyond reasonable doubt.
12. However his quantum of sentence awarded to the appellant needs reconsideration. Admittedly there was a dispute between the parties as mother of the deceased was divorced by his father Allah Wadhaya who was residing with present appellant at the relevant time and intended to transfer his land in his favor to which deceased had raised objection. In this backdrop both the parties confronted with each other and during incident a single fire shot was made by the appellant which hit the deceased. On prosecutions own showing only one fire shot was made by the appellant which hit the deceased. Keeping in view peculiar facts and circumstances of the case and evidence in totality we are of the view that extreme penalty of death was not warranted in this case and alternate sentence of imprisonment for life was sufficient to meet the ends of justice.
13. While maintaining conviction of the appellant u/S. 302(b), PPC death penalty is converted into imprisonment for life as Tazir, with benefit of Section 382-B, Cr.P.C. However, the amount of compensation shall remain intact. With this modification instant appeal is dismissed.
14. As a sequel to the above Murder Reference No, 189 of 2010 is answered in Negative. Death sentence of Muhammad Akram, appellant is not confirmed.