Ch. Mushtaq Ahmad, J.--Appellant Muhammad Sarwar has challenged his conviction and sentence through the above cited criminal appeal. He was tried alongwith eight others by learned Additional Sessions Judge. Sahiwal in private complaint (Exh.PB) filed by Mst. Naziran Bibi, complainant (PW-1) under Sections 302, 324, 148, 149, 201, PPC arising out of State case FIR No, 70 dated 11.3.2007 registered under Sections 302, 324, 148, 149, PPC at Police Station Chichawatni, District Sahiwal. State has sought confirmation of death sentence awarded to Muhammad Sarwar, appellant through Murder Reference No,. 86 of 2010 whereas Mst. Naziran Bibi, complainant has filed Criminal Revision No, 138 of 2010 for enhancement of compensation against Respondents No, 1.
We propose to dispose of all these matters through this consolidated judgment. .
2. Learned Additional Sessions Judge, Sahiwal vide judgment dated 16.2.2010 convicted the appellant under Section 302(b), PPC and sentenced to Death. He was also held liable to pay Rs, 4,00,000/- 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, Zulfiqar, Muhammad Afzal, Muhammad Mamba, Noor Ahmed, Muhammad Zafar, Muhammad Ashraf, Muhammad Nawaz and Iftikhar alias Bhutta have been acquitted.
3. Brief facts as disclosed in complaint (Exh.PB) are that Md. Naziran Bibi (complainant) along with her father Muhammad Ali, brother Saleh Muhammad and husband Munir Ahmed (deceased) on 11.3.2007 at 6.00 a.m. (morning) was going to irrigate their land situated in Chak No, 108/12-L; that when they reached on the road situated in between Squares No, 49 & 50, they were way laid by accused Muhammad Sarwar (present appellant) duly armed with .12 bore gun. Zulfiqar armed with .12 bore gun, Afzal, Zafar, Muhammad Ashraf Nawaz, Muhammad Mansha and Noor Muhammad all armed with Pistols; Sarwar accused raised Lalkara that he would teach them a lesson for sowing wheat crop and irrigating the land; that complainant's husband Munir Ahmed tried to run away but accused Zulfiqar and Iftikhar caught him by arms while Muhammad Afzal and Nawaz accused hold him from his legs, then, Muhammad Sarwar accused fired at with .12 bore gun which hit Munir Ahmed below his right armpit who got injured and fell on the ground; that accused persons then made straight firing at PWs but they saved their lives hiding in a nearby water-course, on seeing the people accused persons while raising Lalkaras fled away from the place of occurrence alongwith their weapons. Accused persons left their motorcycle bearing Registration No, MNQ-7569 at the spot.
Motive for the occurrence was that 7/8 years prior to the incident complainant's father Muhammad Ali had purchased one and a half acre of agricultural land from Muhammad Sarwar, his mother and others from a joint Khata; that again Muhammad Sarwar sold two kanals and 14 marlas land to complainant's father through agreement to sell to which deceased husband of the complainant was an attesting witness; that at the time of execution of agreement to sell accused Muhammad Sarwar received, Rs, 1,00,000/- as earnest money from her father Muhammad Ali (given up PW).
Later on, he resiled from the agreement as a result of which complainant's father filed civil suit against Muhammad Sarwar who off and on used to pressurize deceased Munir Ahmed to desist from giving evidence and when he refused to do so, appellant committed his murder.
4. On the above information, I.O./CW-5 investigated the case and submitted report under Section 173, Cr.P.C. Prosecution in order to prove charge produced as many as eight witnesses. PW-1.Mst.
Naziran Bibi, complainant and PW-2 Saleh Muhammad furnished ocular account. CW-5 Muhammad Zafar, S. I. And CW-6 Shahid Farooq, S. I. Were the Investigating Officers of this case.
PW-3 Dr. Abdul Aziz conducted autopsy on dead body of Munir Ahmed and observed one fire-arm punctured wound measuring 4cm x 4cm going deep on back and mid of outer most part of right chest measuring 14cm from vertebral column. It was entry wound. Corresponding laceration was present on shirt and Jersy of the deceased. He opined that death in this case was caused due to shock and haemorrhage under Injury No, 1 which was sufficient to cause death in ordinary course of nature. Probable time that elapsed between injury and death was immediate and between death and post-mortem was 4 to 6 hours. CW-1 Muhammad Aslam Patwari prepared scaled site- plan Exh.CW1/A. The remaining witnesses more or less of formal nature need not be mentioned.
5. On 18.1.2010 after tendering in evidence reports of Chemical Examiner and Serologist (Exh.PH & Exh PJ) prosecution closed its evidence. Thereafter statement of accused under Section 342, Cr.P.C.
Was recorded in which present appellant 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 witnesses were not present at the place of occurrence; that ocular account was not corroborated by medical evidence nor motive was proved against the appellant on record and that co-accused were acquitted on the same set of evidence, therefore, charge was not proved beyond reasonable doubt against the present appellant; that in fact complainant party already wanted to take forcible possession of agricultural land which was in possession of appellant who had gone to irrigate his land on motorcycle whereas the complainant party assaulted him to take forcible possession of the land; that in fact deceased wanted to inflict a sota blow on head of appellant but PW Saleh Muhammad who had a gun at the relevant time made fire shot upon him which unfortunately hit the deceased on his back near armpit who was very close to the said PW and that learned trial Court has not correctly appreciated the evidence brought on record.
8. Conversely, learned law officer assisted by learned counsel for the complainant submitted that local police gave undue favour to co-accused declaring them innocent so the complainant was forced to file private complaint; that learned trial Judge after due appreciation of evidence produced by the prosecution convicted the accused which finding is not open to any exception; that the eye-witnesses have fully implicated the accused who had no animosity or enmity with the appellant; that the 'appellant after committing the offence deliberately and intentionally dis- appeared to face trial; that ocular account is duly supported by medical evidence and that positive reports of Chemical Examine and that of Serologist further corroborate the version of prosecution.
9. Arguments heard. Record perused.
10. It is a case where date, time and venue of the occurrence is not disputed. Incident took place in broad day light. Both the parties residents of same locality so the issue of mis-identification is not involved in this case. The role attributed to the present appellant was that he made fire shot with .12 gun (P7) hitting on back near armpit of Munir Ahmed, deceased. The aforesaid version was duly supported by PW-1 Mst. Nazeeran Bibi complainant/widow of deceased and PW-2 Saleh Muhammad, brother-in-law while appearing before the trial Court. Both the eye-witnesses were cross-examined at length by putting different questions regarding receipt and locale of injury by the deceased, mode of occurrence and their presence at the spot. Both the PWs remained consistent while furnishing ocular account of the occurrence. During cross-examination defence failed to shatter their testimony on material features of the case. PW-3 Dr. Abdul Aziz who provided medical evidence observed one fire-arm punctured entry wound measuring 4cm x 4cm going deep on back and mide of outer most pan of right chest measuring 14cm of deceased Munir Ahmed. It was specifically, attributed to the present appellant, which was sufficient to cause instantaneous death of the deceased. So, medical evidence fully corroborates the ocular account.
During trial appellant took the stance that it was a case of accidental fire shot but the trial Court did not believe the same. In this regard defence put different questions to the eye-witnesses but nothing could be brought on record to favour the appellant. The ocular account was further corroborated by CW-5 Muhammad Zafar, S. I./Investigating Officer who prepared injury statement Exh.PG. During cross-examination he stated that injury on the deceased was located on the back, side slightly near the right armpit. So, we are of the considered opinion that prosecution in this case has proved the charge of Qatl-i-Amd against Muhammad Sarwar, appellant.
11. The bone of contention in this case was possession of agricultural land measuring 2 kanals and 14 marlas against which present appellant firstly entered into agreement to sell with complainant's father Muhammad All (given up PW) after receiving Rs, 1,00,000/- as earnest money and later on, he resiled qua execution of any agreement to sell. As a result thereof a civil suit was filed by complainant's father Muhammad Ali in civil Court for its execution in which deceased was one of the marginal witnesses. It has come in evidence that appellant often used to pressurize the deceased not to appear in the said suit as witness and on his refusal to do so appellant committed his murder. During cross-examination defence put motive to the witnesses but they remained consistent on their point of view. So, finding of trial Court qua motive is upheld.
12. Record shows that after occurrence appellant remained fugitive from law from 11.3.2007 to 23.8.2007. Although abscondence by itself has no value in absence of any other evidence, but it can be used as corroborative piece of evidence in the presence of substantive piece of evidence.
Appellant also left his motorcycle (P8) at the place of occurrence which was taken into possession by CW-5/LO. Vide recovery memo. Exh.PD. Moreover the plea taken by the appellant during trial in his statement under Section 342, Cr.P.C. Was not established. Bald suggestions put to the prosecution witnesses regarding defence version were not supported by any cogent evidence.
13. According to eye-witnesses appellant Muhammad Sarwar was armed with .12 bore gun at the time of occurrence. During investigation he got recovered .12 bore gun (P7) which was not sent to Forensic Science Laboratory as the crime empties collected from the place of occurrence were allegedly destroyed by the I.O./CW-5 who was also arrayed as one of the accused in complaint (Exh.PB) but learned trial Court did not summon him. Anyhow in the presence of direct and confidence inspiring ocular account besides positive reports of Chemical Examiner and Serologist the non-matching of recovered weapon does not adversely affect the prosecution version.
14. So far as quantum of sentence is concerned it is to be noticed that before the said occurrence only civil litigation was pending between the parties. Moreover, single fire shot was attributed to present appellant. He did not repeat the same. In our opinion extreme penalty of death is not justified in the given facts and circumstances of the case to the appellant. Consequently, while maintaining the conviction of appellant Muhammad Sarwar under Section 302(b), PPC as Tazir we convert the sentence of death into Imprisonment for life. Subject to above modification this appeal is dismissed.
15. Resultantly, death sentence awarded to appellant Muhammad Sarwar is not confirmed. Murder Reference No 86 of 2.010 is answered in Negative.
16. No ground for enhancement of compensation is made out. Consequently Criminal Revision No, 138 a 201.0 is dismissed.