' CH. MUSHTAQ AHMAD, J.---Having received guilty verdict on the charge of homicide and causing firearm injury to PW-2 Master Abdul Qadoos, Muhammad Irfan, appellant has challenged his conviction and sentence through the above cited criminal appeal. He was tried by learned Additional Sessions Judge, Multan in case FIR No,143 dated 7.4.2009 under sections 302, 337-F(v), P.P.C. Registered at Police Station Qadirpur Raan, Multan. Besides this appeal learned trial court has sent Murder Reference No,74 of 2010 for confirmation of death sentence awarded to the appellant.
We propose to dispose of both these matters through this single judgment.
2. Learned Additional Sessions Judge, Multan vide judgment dated 21.1.2010 convicted the appellant under section 302(b), P.P.C. And sentenced to Death. He was held liable to pay Rs,1,00,000/- as compensation to the legal heirs of deceased Abdul Haq in terms of section 544-A, Cr.P.C. And in default thereof to undergo further simple imprisonment for six months. He was also convicted under section 337-F(v), P.P.C. To 5-Years R.I. And pay Daman of Rs,30,000/- for causing firearm injury to Master Abdul Qadoos, injured PW-2.
3. Complaint (Exh.PA) was lodged by Inamul Haq alias Nomi (PW-1) son of Abdul Haq (deceased).
He reported to Bashir Ahmed, S.I. (PW-12) stating therein that on 6.4.2009 at 11.00 p.m. (night) he along with his father came at their poultry farm situated near Pul Churianwali Qadirpur Raan, Multan from where he proceeded to purchase some commodities leaving his father Abdul Haq in the company of his uncle Master Abdul Qadoos, Khalid, Muhammad Waseem and Muhammad Ramzan; that all of a sudden he heard noise in the poultry farm, he came back and entered the room where he saw Muhammad Irfan (present appellant) duly armed with .30 bore Pistol quarrelling with his father and uncle Master Abdul Qadoos; that within his sight he fired at his father with pistol which hit on left flank of his father whereas second fire shot by him hit Master Abdul Qasood on his right elbow; that complainant's father succumbed to the injury at the spot whereas Master Abdul Qadoos was injured; that PWs tried to apprehend the accused but he ran away towards Mauza Bagh brandishing his weapon in the air. On above information instant case was registered at 12.20 a.m. (night).
4. Police investigated the case and submitted report under section 173, Cr.P.C. Prosecution in order to prove charge produced as many as twelve witnesses. PW-1 Inamul Haq alias Nomi, complainant and injured PW-2 Master Abdul Qadoos provided ocular account. PW-5 Muhammad Bilal, C-315 is the recovery witness of .30 bore Pistol (P4). PW-12 Bashir, S.1. Conducted the investigation of this case. PW-8 Dr. Mukhtar Ahmad conducted autopsy on dead body of Abdul Haq and observed one entry wound on back of left chest and on outer side 15cm on left of midline 35cm below left shoulder girdle level. In his opinion cause of death was injury No,1 resulting in excessive haemorrhage which led to shock which was sufficient to cause death in ordinary course of nature.
Probable time between injury and death was about 15 to 30 minutes whereas between death and post mortem report was 12 to 24 hours. PW-7 Dr. Shahid Mehmood medically examined Master Abdul Qadoos (PW-2).
5. After tendering in evidence reports of Chemical Examiner Exh.PN, Serologist Exh.PO and FSL Exh.PQ prosecution evidence was closed on 13.1.2010. Thereafter statement of accused under section 342, Cr.P.C. Was recorded in which he simply denied the charge and professed his innocence.
6. Learned trial court after hearing arguments, recorded conviction and awarded sentence to the appellant Muhammad Irfan as mentioned in the opening paragraph of this judgment.
7. Learned counsel for the appellant argued that it was an unwitnessed occurrence; that PWs could not identify the culprit in the dark night; that appellant was falsely implicated in this case and that prosecution in this case had failed to prove charge against the appellant beyond reasonable doubt, therefore, he was entitled to clean acquittal.
8. Conversely learned law officer assisted by learned counsel for the complainant has opposed this appeal contending that presence of eyewitnesses was well explained: that the incident was promptly reported to the police and it being a case of single accused there was no chance of false implication particularly when the injured PW Master Abdul Qadoos (PW-2) had received firearm injury at the hands of present appellant from a close range and he could easily identify the appellant during occurrence; that ocular account was fully corroborated by medical evidence as well as report of FSL and that appeal was liable to be dismissed.
9. Arguments heard. Record perused.
10. Incident took place on 6.4.2009 at about 11.00 p.m. Thereafter within an hour occurrence was reported to the police and statement (Exh.PA) of Inamul Haq alias Nomi, complainant was recorded at 12.05 a.m. On the same night. In police diary it is mentioned that Rapt No,29 was lodged at about 12.20 p.m. Meaning thereby that it was a promptly lodged FIR excluding possibility of false implication. It is a case in which single accused was nominated with specific role. The presence of PW-1 and PW-2 at the time of occurrence was well explained in the prosecution evidence. The role attributed to the appellant was that he made fire shot with his .30 bore pistol (P4) hitting on left flank of Abdul Haq, deceased due to which he died at the spot whereas the second fire shot hit PW- 2 Master Abdul Qadoos on his right elbow who got injured. The aforesaid version was duly reiterated by the eye-witnesses i.e, PW-1 Inarnul Haq alias Nomi, complainant and PW-2 Master Abdul Qadoos while appearing before the trial court. Both the witnesses were cross-examined regarding receipt of injury by the deceased, mode of occurrence and their presence at the spot but the 'witnesses remained consistent while furnishing ocular account of the occurrence. PW-8 Dr. Mukhtar Ahmad conducted autopsy and noted one entry wound on back of left chest which was specifically attributed to the appellant and according to opinion of PW-8 it was sufficient to cause death of the deceased. Likewise PW-7 Dr. Shahid Mehmood Bokhari examined injured Master Abdul Qadoos (PW-2) and observed two injuries on his right elbow which too was attributed to the present appellant. So, ocular account was corroborated by medical evidence.
11. According to eye-witnesses appellant Muhammad Irfan was armed with .30 bore pistol at the time of occurrence. During investigation he got recovered pistol (P4) which was sent to Forensic Science Laboratory for comparison with two empties collected from the place of occurrence by Investigating Officer at the time of his first visit of the place of occurrence. According to the report of FSL (Exh.PQ) the crime empties were found wedded with said pistol. Similarly the report of Serologist (Exh.PO) regarding blood stained earth was also found positive. In this way, ocular account was further corroborated by recovery of weapon. So, we are of the considered opinion that prosecution in this case has proved the charge of Qatl-i-amd against Muhammad Irfan, appellant.
12. So far as quantum of sentence is concerned it is on record that motive is not established on record. As per statement of PW-2 deceased forbade the appellant to visit his poultry farm and two days prior to the occurrence appellant came to the poultry farm and on gun point appellant warned his servant to remain mum, however, he told the deceased about C his visit to poultry farm but PW-1 in his statement right from the first day till the recording of his statement not uttered a single word about motive. So this part of the occurrence remained shrouded in mystery. In our view a case of mitigation is made out. Consequently, while maintaining the conviction recorded against appellant under sections 302(b) and 337-F(v), P.P.C. As Tazir we convert the sentence of Death into Imprisonment for life with benefit of section 382-B, Cr.P.C. Subject to above modification this appeal is dismissed.
13. Resultantly. Death sentence awarded to appellant Muhammad Irfan is not confirmed. Murder Reference No,74 of 2010 is answered in Negative.