' MUHAMMAD TARIQ ABBASI, J.---Through this judgment, the above captioned Criminal Appeal and Murder Reference shall be disposed of, as both are outcome of single judgment dated 05.08.2009, passed by the learned Sessions Judge, Sahiwal, whereby in case FIR No, 55, dated 03.02.2008, registered under Section 302, P.P.C. At Police Station Noor Shah, District Sahiwal, Muhammad Iqbal alias Bali (hereinafter referred to as "the appellant"). Has been convicted and sentenced to death.
2. The facts are that Naseer Ahmad complainant (PW-8) made a statement/Fard Biyan (Ex.PE), with the contention that on 03.02.2008, at about 10.00 a.m. He for personal work was available at Chak No,53/GD; his nephew (Bhanja) Murtaza alias Murti (deceased) along with Jaffer Ali (PW-6) and Muhammad Iqbal (given up PW) arrived there on a motor cycle; when they reached at the thoroughfare, opposite to the house of Zahoor, due to rain, there was mud in the street; the appellant, armed with .30 bore pistol, attracted and raised a `Lalkara' that the deceased would be taught a taste of helping his opponents; the appellant made a fire shot, which landed at right cheek of the deceased and passed through and through, whereupon he fell down; the appellant while making aerial firing, fled away; Murtaza alias Murti succumbed to the injuries at the spot; .The motive was that the appellant had grudge against the deceased for helping Haq Nawaz etc., the opponents of the appellant. On the basis of the above said Fard Biyan, the case was registered through FIR (Ex.PH/1). The investigation was carried on and the appellant was challaned. The learned Trial Court charge sheeted him. He pleaded not guilty and claimed the trial, hence the prosecution witnesses were summoned and recorded. The prosecution had got examined as many as 09 witnesses. Gist of evidence led by the Material witnesses was as under:-- i) PW-1 Dr. Mabashar Hussain Sherazi conducted postmortem examination of dead body of Murtaza alias Murti on 3.2.2008 through report (Ex. PA) and pictorial diagrams (Ex. PA/1 and Ex.
PA/2). At that time the following injuries at the dead body were observed:-- 1) A firearm entry wound 1 cm x 1 cm deep going on the right cheek near right border of lips.
2) A firearm exit wound 1 cm x 1 cm deep going on the left side of neck just below left ear.
3) Abrasion 6 cm x 1/2 cm on front mid of right leg.
' As per the doctor, the injury. No, 1, which was caused by firearm and anti-mortem in nature, was result of death, which was immediate. Ii) PW-4 Nasarullah Constable transmitted' the parcels containing blood stained earth and empty, from the Police Station to the office of Chemical Examiner, Lahore. He also witnessed the proceedings, during which the appellant got recorded .30 bore pistol (P-6) from his residential house and taken into possession by the Investigating Officer, through Memo (Ex.PD). The parcel of pistol was also deposited by him in the office of Forensic Science Laboratory, Lahore. iii) PW-8 Naseer Ahmad Complainant as well as an eye-witness of the alleged occurrence narrated almost the same facts as were stated by him in the complaint .(Ex. PH). iv) PW-6 Jaffer Ali, another eyewitness of the occurrence supported and corroborated the version of the above named complainant (PW-8). He also attested the memos (Ex.PC, Ex. PE, Ex.PF & Ex.PG), through which the last worn clothes of the deceased, crime empty got recovered from the spot, motor cycle and blood stained earth were respectively taken into possession by the investigating officer.
' PW-9 Muhammad Ashraf, S.I. Investigated the Case. He recorded statement (Ex.PH) of the complainant; inspected the dead body and prepared the injury statement (Ex. PJ) and inquest report (Ex. PK); collected the blood stained earth from the spot and took it into possession through Memo (Ex.PG); collected an empty (P-7) of .30 bore pistol from the spot and secured it through Memo (Ex. PE); took into possession the motor cycle through Memo (Ex.PF); drafted the rough site plan (Ex.PL) of the spot; secured the last worn clothes (P-1 to P-5) of the deceased through Memo (Ex.PC); got prepared the scaled site plan (Ex.PB and Ex.PB/1) from the draftsman; arrested the appellant and obtained his physical remand; secured the pistol (P-6) through Memo (Ex. PD), which was got recovered by the appellant; recorded statements under Section 161, Cr. P. C. Of the relevant witnesses at relevant stages.
3. After examination of the prosecution witnesses, the reports of the chemical examiner and Forensic Science Laboratory, Lahore were tendered in evidence as Ex.PM and Ex.PN respectively and case for the prosecution was closed. Thereafter, the appellant was examined under Section 342, Cr.P.C., during which, the questions arising out of the prosecution evidence were put to him and he denied almost all such questions. The question "why this case against you and why the PWs have deposed against you? Was replied by him in the following words:- "It is a false ease. The PWs have deposed falsely due to their relationship inter-se and with the deceased and. Being inimical towards me. I was also earlier involved in a false case and was acquitted and after my release from jail, Nazim of the area Mazhar Shah Khagga has again got me involved in this false case. It was an unwitnessed occurrence. The assailant was not known. I was not present at the spot at the time of occurrence. The case was registered after due deliberations and preliminary inquiry due to the influence of Mazhar Shah Khagga who is an influential person of the area. The deceased was a hardened criminal and was proclaimed offender in several criminal cases and had many enemies. Many persons were made to join the investigation as suspects who were let of by the police for monitory considerations.
' I am absolutely innocent."
' He opted to lead evidence in his defence, but refused to make statement under section 340(2), Cr.P.C. In defence, he only tendered previous record of the deceased as Ex.DB and closed the defence.
4. After completing all the required proceedings, the learned Trial Court had decided the case, through the impugned judgment, whereby convicted and sentenced the appellant in the above mentioned terms. Consequently, Criminal Appeal and Murder Reference in hand.
5. The learned counsel for the appellant have argued that it was an unseen occurrence, but false witnesses were introduced with mala fide, who falsely deposed against the appellant; the statements of the witnesses being full of material contradictions, are not believable; the witnesses failed to establish their presence and availability at the spot; the recovery of the pistol could not be established; the charge against the appellant was not proved, hence he was entitled for acquittal, therefore the impugned judgment is not sustainable under the law.
6. Conversely, the learned Deputy Prosecutor General has vehemently opposed the appeal, with the contention that sufficient material in shape of oral as well as documentary evidence to connect the appellant with the occurrence was brought on the record, hence as the charge against him was successfully proved, therefore, the learned Trial Court had rightly passed the impugned judgment, which being well-reasoned and call of the day warrants no interference.
7. Arguments of both the sides have been heard and thee record has been perused.
8. Naseer Ahmad complainant (PW-8) and Jaffer Ali (PW-6), categorically deposed that in their presence and within their view, the appellant while armed with .30 bore pistol attracted at the spot, raised a `Ialkara' and then made a fire shot, which landed at right side cheek of the deceased and passed through and through, consequently the deceased died then and there. The above mentioned version of the witnesses could not be contradicted, as during the cross-examination, they remained consistent and corroborative. Neither during the arguments nor perusal of the record, any material contradiction in the statements of the witnesses could be pointed out or observed.. Therefore, the arguments of the learned counsel for the appellant that the statements of the witnesses are full of material contradictions are nothing, but bald assertion. Although the complainant is a close relative of the deceased, but his no grudge or enmity with the appellant could be brought on the record. Hence no reason, cause or justification to discard his statement, which otherwise is confidence inspiring, ,, only on the basis of his relationship with the deceased.
Both the above named witnesses have successfully established and justified their presence and availability at the spot. Therefore, the objection of the defence towards non-availability of the witnesses at the spot is discarded. The above mentioned version of the witnesses has been supported by the medical evidence led by Dr. Mubashar Hussain Sherazi (PW-1) and the report (Ex.PA, Ex.PA/1 and Ex.PA/2), as the injuries described by them were confirmed on the dead body.
9. It is available on the record that the empty recovered from the spot on 3.2.2008 was deposited in the office of Forensic Science Laboratory on 6.2.2008. Thereafter, the pistol (P-6) was recovered from the appellant on 4.3.2008, which for comparison with the above mentioned empty was also sent to the laboratory. Due proceedings in the laboratory were carried on and the report (Ex.PN) was prepared, according to which the empty was fired from the above mentioned pistol. The said fact has also confirmed that it was the appellant, who fired at the deceased with the above mentioned pistol.
10. In the complaint/Ford Biyan (Ex.PH) and the FIR (Ex.PH/1), the alleged motive was described as grudge of the appellant against the deceased that he was helping the opponents of the appellant.
But when the complainant appeared in the witness box as PW-8, failed to narrate the above mentioned alleged motive. He rather contended that there was no previous enmity. In this way, the motive alleged in the complaint was not proved or established. This fact was also highlighted by the learned Trial Court under Para No, 13 of the impugned judgment. Consequently either the motive was not known to the complainant or deliberately concealed from everyone, including the learned Trial Court. Till now, the motive is shrouded in mystery.
11. For what has been discussed above, we have come to the conclusion that the impugned judgment, towards conviction of the appellant, being based on correct appreciation and evaluation of the material available on the record is quite justified. As stated above, the motive alleged in the complaint could not be proved and the cause of occurrence is still shrouded in mystery and the appellant made only one fire shot without any repetitiofi, hence according to our opinion, due consideration is required towards quantum of sentence awarded to him by the learned Trial Court. Our above mentioned view has been fortified by the dictum laid down in case "Hasil Khan v. The State and others" (2012 SCM R 1936), whereby the august Supreme Court of Pakistan held as under:-- .....Moreover, as rightly observed by the learned Trial Court the immediate motive remained shrouded in mystery and the Trial Court rightly did not award the maximum sentence of death provided under section 302(b), P.P.C. To the appellant. The enhancement of sentence by the learned High Court, we observe with respect, is not in accord with the law laid down by this court in Muhammad Ashraf Khan Tareen v. The State (1996 SCMR 1747) wherein at page 1755, the Court dismissed complainant's appeal and did not enhance the sentence by holding as follows:- ' In respect of sentence, learned counsel for the complainant/State wanted conversion of the life imprisonment into death sentence. Learned counsel cited case of Iftikhar Ahmad v. The State (PLD 1990 Supreme Court 820) where criminal petition by the complainant challenging reduction of sentence by the High Court, was dismissed by this Court on the ground that the principle of origin of offence remained shrouded in mystery. This authority does not further prayer of the complainant for awarding death penalty to the appellant. In the present case prosecution did not allege any specific motive for commission of the offence. In the circumstances, the appellant could not have been awarded the death penalty.'
10. Similarly, in Jehanzeb v. The State (2003 SCMR 98), the Court altered the sentence of death of the convict to life imprisonment by observing that where motive alleged by the prosecution has not been satisfactorily proved, this may be considered as a mitigating circumstance qua the quantum of sentence."
12. Resultantly, while maintaining the conviction of the appellant, awarded by the ' learned Trial Court, through the impugned judgment, his sentence is modified from death to imprisonment for life.
13. It has been noticed with great concern that the learned Trial Court on one hand, held the appellant guilty for qaitl-iamd of the above named deceased, hence convicted and sentenced him, but on the other hand refused to impose compensation against him, as provided under section 544-A, Cr.P.C., on the ground that the deceased was a record holder and involved in 32 cases, hence his legal heirs were not entitled for any compensation. Section 544-A, Cr.P.C. Reads as under:-- [544-A. Compensation to the heirs of the person killed, etc. [(1) Whenever a person is convicted of an offence in the commission whereof the death of or hurt, injury, or mental anguish or psychological damage to, any person is caused or damage to or loss or destruction of any property is caused, the Court shall when convicting such person, unless for reasons to be recorded in writing it otherwise directs, order the person convicted to pay to the heirs of the person whose death has been caused, or to the person hurt or injured, or to the person to whom mental anguish or psychological damage has been caused, or to the owner of the property damaged, lost or destroyed, as the case may be, such compensation as the Court may determine having regard to the circumstances of the case ",] and
(4) ................... .
(5) An order under this section may also be made by an appellate Court or by a Court when exercising its powers of revision.
' From bare reading of the above mentioned provision, it is crystal clear that it is mandatory in nature and compensation under it could not be withheld, unless there are strong reasons for refusal, which must be specifically highlighted. Nothing is available on the record if the deceased was convicted, in any criminal case. Mere registration of criminal cases had not given any licence to anyone to take law into his own hands and commit his murder. When it was proved on the record that death of the deceased was at the hands of the appellant and he was convicted and sentenced, then imposition of the compensation under Section 544-A Cr.P.C. Was obligatory. In this regard, reliance may be placed to the cases "The State v. Rab Nawaz and another" (PLD 1974 Supreme Court 87) and "Khalid and others v. The State" (1975 SCM R 500). If the learned Trial Court has not awarded the compensation as required under section 544-A, Cr.P.C, even then this Court is fully empowered to award the same. We are fortified by the dictum laid down in case "Saeed Shah and others v. The State and others" (2005 M LD 389). Resultantly, the compensation of Rs,5,00,000/- under section 544-A, Cr.P.C. Is also imposed against the appellant, which if realized, shall be paid to the legal heirs of the deceased as per their legal , entitlement, otherwise the appellant shall 'undergo simple imprisonments for six months. The benefit of Section 382-B, Cr.P.C., is also provided to him.
14. Consequently, with the above mentioned modification in the sentence of the appellant, Criminal Appeal No, 663/ 2009 is dismissed. The Murder Reference No, 149/2009 is answered in negative and death sentence awarded to Muhammad Iqbal alias Bali (appellant) is not confirmed.