MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Crl. Appeal No. 258898-J of 2018 filed by Sami Ullah appellant against his conviction and sentence and Murder Reference No. 390 of 2018 sent by the learned trial Court for confirmation or otherwise of the sentence of Death awarded to Sami Ullah (appellant) by the learned trial Court. We proceed to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 14.11.2018 passed by the learned Addl. Sessions Judge, Arifwala District Pakpattan.
2. Sami Ullah (appellant) was tried in case FIR. No. 140 dated 20.05.2017 registered at Police Station Rang Shah District Pakpattan in respect of offence under Section 302 of P.P.C. After conclusion of the trial, the learned trial Court vide its judgment dated 14.11.2018 has convicted and sentenced Sami Ullah appellant as under: - Under Section 302(b), P. P.C. to 'Death as tazir' for committing Qatl-i-Amd of Umar Hayat (deceased). He was also ordered to pay Rs.500,000/- (Rupees fine hundred thousand only) to the legal heirs of Umar Hayat deceased as compensation under Section 544-A of Cr.P.C. and in default thereof to undergo simple imprisonment for six months.
3. Brief facts of the case as given by the complainant Saif Ullah (PW-1) in his complaint (Exh.PA) on the basis of which formal FIR (Exh.PA/1) was chalked out, are that he (complainant) was resident of Chak No. 16/E.B and was a cultivator by profession. On 20.05.2017 at 06:00 a.m., his (complainant's) father, namely, Umar Hayat (deceased) came from the house on a cart to take chaff from Square No. 49 Killa No. 23, where the complainant along with Munir Ahmad (PW-2) and Tazammal Hussain (given up PW) were already present. In the meanwhile, Sami Ullah (appellant) while armed with rifle came there and raised a 'Ialkara' to teach a lesson for quarreling his (Umar Hayat deceased's) son, namely, Asad with him (appellant) and made a fire shot which hit at the right arm and armpit of Umar Hayat (deceased). Second fire shot made by the appellant landed at the left flank, whereas, the third fire shot made by the appellant landed on the back side of right thigh of Umar Hayat (deceased) who fell on the ground. The complainant party tried to rescue Umar Hayat (deceased) upon which Sami Ullah raised a 'lalkara' that if any body would come near then he shall face the same fate. On the hue and cry of the complainant party, people gathered at the spot, whereas, Sami Ullah (appellant) fled away from the spot while making aerial firing. Father of the complainant, namely, Umar Hayat (deceased) succumbed to the injuries at the spot.
4. The appellant Sami Ullah was arrested in this case on 28.05.2017 by Muhammad Iqbal Sub- Inspector/I.O. (PW-5). On 02.06.2017 Sami Ullah (appellant) made disclosure and got recovered rifle .222 bore (P-2) along with two live bullets (P-3/1-2) which was taken in to possession by the I.O. vide recovery memo. (Exh.PE). After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 27.01.2018 to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced nine witnesses during the trial and also produced documentary' evidence in the shape, of (Exh.PA to Exh.PO).
6. The statement of the appellant under Section 342 of Cr.P.C. was recorded. The appellant refuted the allegations levelled against him and professed his innocence. While answering to a question that "Why this case against you and why the PW's have deposed against you" the appellant Sami Ullah replied as under:-- "It is a false case. All the PWs are related inter se. Neither I was present at the place of occurrence nor made any fire upon the deceased. Deceased was a notorious person having illicit relations with different women. Size and diameter of injuries are different which clearly show that different kinds of weapons were used upon the deceased by unknown accused persons. It is an un- witnessed occurrence. Recovery of gun is fake and planted one and due to this reason, the crime empties secured from the place of occurrence by the crime scene unit did not match with the gun. In fact, civil litigation remained pending between me and the complainant party and due to this reason and grudge, I was falsely involved in this false case."
The appellant Sami Ullah neither opted to make his statement on oath as envisaged under Section 340(2), Cr.P.C., nor produced any evidence in his defence.
The learned trial Court vide its judgment dated 14.11.2018 found the appellant guilty, convicted and sentenced him as mentioned and detailed above.
7. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant being in league with the police; that in fact the occurrence was unseen and the prosecution eye-witnesses are chance witnesses and they could not establish their presence at the spot at the relevant time; that there is conflict between the ocular account and medical evidence of the prosecution because as per prosecution's ocular account -there were four injuries on the body of Umar Hayat deceased, whereas, as per postmortem report of the deceased there were five injuries on the body of the deceased; that the alleged recovery of rifle .222 bore (P-2) vide memo (Exh.PE) from the possession of the appellant is of no avail to the prosecution because the report of PFSA, Lahore (Exh.PN) in respect of the said weapon is in the negative; that the motive was also not proved in this case against the appellant beyond the shadow of doubt. It is therefore, prayed that the appeal filed by Sami Ullah (appellant) may be allowed and the appellant may be acquitted. of the charge by extending him the benefit of doubt.
8. On the other hand, it is contended by the learned Deputy Prosecutor General the State assisted by learned counsel for the complainant that the occurrence in this ease took place on 20.05.2017 at 06:00 a.m., and the matter was promptly reported to the police on the same day at 08:30 a.m., i.e. within a period .of 02 hours and 30 minutes from the occurrence hence, promptness of the FIR rules out the possibility or any deliberation or concoction on the part of the prosecution; that the occurrence took place in the fields of Umar Hayat (deceased) and Saif Ullah (PW-I ), whereas, Munir Ahmad (PW-2) is brother-in-law of the deceased therefore, their presence as the spot at the relevant time is quite natural and probable; that the occurrence took place in the broad day light therefore, there was no chance of any misidentification of the appellant by the prosecution's' eye- witnesses; that the prosecution eye-witnesses were the inmates of the village where the occurrence took place therefore, they cannot be termed as chance witnesses; that the prosecution's case against the appellant is supported by the medical evidence furnished by Dr. Arslan Karim (PW-9), postmortem examination report of the deceased (Exh.PL) and pictorial diagram (Exh.PL/1); that the prosecution case is further corroborated by the recovery of rifle .222 bore (P-2) vide recovery memo (Exh.PE), on the pointation of the appellant; that motive has also been proved in this case against the appellant through reliable and confidence inspiring evidence of the prosecution witnesses; that the prosecution has proved its case against the appellant beyond the shadow of any doubt therefore, his appeal may be dismissed, Murder Reference be answered in the affirmative and the sentence of death awarded to the appellant by the learned trial Court may be upheld and maintained.
9. Arguments heard. Record perused.
10. Prosecution story as set forth in the complaint (Exh.PA) on the basis of which formal FIR (Exh.PA/1) was chalked out, has already been reproduced in para No.3 of this judgment therefore, there is no need to repeat the same.
11. The occurrence in this case took place on 20.05.2017 at 06:00 a.m. The matter was reported to the police on the same day through complaint (Exh.PA) and the FIR (Exh.PA/1) was also lodged on the same day i.e. on 20.05.2017 at 08:30 a.m.. i.e., within a period of 02 hours and 30 minutes from the occurrence. The distance between the police station and the place of occurrence was 8-miles.
Even the postmortem on the dead body of Umar Hayat (deceased) was conducted on the same day i.e., on 20.05.2017 at 12:30 p.m. i.e. within a period of 06 hours and 30 minutes from the occurrence keeping in view the time of occurrence, the place of occurrence, its distance from the police station and the time of postmortem examination of Umar Hayat deceased, we are of the view that there was no deliberate or conscious delay in reporting the matter to the police or in conducting the postmortem examination on the dead body or Umar Hayat deceased.
12. The ocular account of the prosecution has been furnished by Saif Ullah complainant (PW-1) and Munir Ahmad (PW-2). The occurrence in this case took place in he fields of Umar Hayat (deceased) situated in Chak No. 16/EB within the jurisdiction of Police Station Rang Shah District Pakpattan. Sail Ullah complainant (PW-1) is the son of Umar Hayat (deceased), whereas, Munir Ahmad (PW-2) is brother-in-law of Umar Hayat (deceased) and this fact was brought on the record during the cross-examination of Saif Ullah complainant (PW-1) who stated that Munir Ahmad PW was his maternal uncle. Both the abovementioned eye-witnesses are residents of the same village i.e., Chak No. 16/E.B where the occurrence took place. Saif Ullah complainant (PW-1) further stated during his cross-examination that the place of occurrence was situated at a distance of about two squares from his house. As mentioned earlier, the occurrence took place in the fields owned by Umar Hayat (deceased), as mentioned in the site plant (Exh.PK) therefore, presence of Saif Ullah complainant (PW-1) in his own fields situated in his village is quite natural and probable. Likewise presence of Munir Ahmad (PW-2) at the spot at the relevant time being resident of the same village and closely related to Umar Hayat (deceased) is also quite natural and probable. The occurrence in this case took place in the broad day light. The appellant is single accused in this case. Saif Ullah complainant (PW-1) is real son, whereas, Munir Ahmad (PW-2) is brother-in-law of Umar Havat (deceased). Keeping in view the relationship of the abovementioned eye-witnesses with Umar Hayat deceased of this case, we are of the view that substitution in such like cases is a rare phenomenon because it is not expected by the near kith and kin of the deceased person to falsely implicate innocent person in the murder case of their near relative and to let off the real culprit. Both the abovementioned eye-witnesses were cross-examined at length but their evidence could not be shaken. They corroborated each other on all material aspects of the case. Their evidence is confidence inspiring and trustworthy. As the occurrence took place in the broad day light therefore, there was no chance of any mis-identification of the appellant in this case.
13. The ocular account furnished by Saif Ullah complainant (PW-1) and Munir Ahmad (PW-2) has fully been supported by the medical evidence produced through Dr. Arslan Karim (PW-9) who conducted the postmortem examination on the dead body of Umar Hayat (deceased) on 20.05.2017 at 12:30 p.m., i.e., period of 06 hours and 30 minutes from the occurrence. He noted the following five (05) firearm injuries on the body of the deceased.
INJURIES:--
1. A fire arm lacerated grazing wound of 6 cm x 4.5 cm on the front of the right arm middle part.
2. A firearm lacerated entrance wound of 3 cm x 2.5 cm into going deep on the lateral side of right chest just below the right armpit.
3. A firearm lacerated wound of 1.5 cm x 1.5 cm into going deep. The lateral side of the right chest 4 cm lateral to injury No.2.
4. A firearm lacerated entrance wound of 3.5 cm x 2 cm on the lateral side of right iliac crest.
5. A firearm lacerated entrance wound of 3.5 cm x 3 cm on the back of right thigh.
Although it is argued by learned counsel for the appellant that there is conflict between the ocular account and medical evidence of the prosecution because as per ocular account of the prosecution, Umar Hayat (deceased) received four (04) firearm injuries, whereas, according to the medical evidence and postmortem report (Exh.PL), there were five (05) injuries on the body of the deceased but it is noteworthy that one (01) out of the abovementioned five (05) injuries mentioned by the Medical Officer i.e., injury No.1 was a grazing wound on the right 'arm of Umar Hayat deceased, whereas, injury No.2 was on the right armpit of the deceased. So it is evident that injuries Nos. I and 2 are result of the same fire shot. Even the prosecution witnesses stated that first fire shot made by the appellant after hitting right arm of Umar Hayat (deceased) landed at his right armpit.
Moreover, it is by now well settled that an eye-witness is not expected to give photo picture of each and every injury sustained by the deceased, with exactitude in the state of panic and sensation created at the time of occurrence due to the firing of accused. Reliance in this respect may be placed on the case of 'Abdur Rauf v. The State and another' (2003 SCMR 522), wherein at page No. 526, the Hon'ble Supreme Court of Pakistan has held as under:-- We may observe that the minor discrepancies in the medical evidence relating to the seat of injuries would also not negate the direct evidence as the witnesses are not supposed to give photo picture of each detail of injuries in such situation, therefore, the conflict of nature of ocular account with medical as pointed out being not material would have no adverse effect on the prosecution case,"
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of 'Ellahi Bakhsh v.
Rab Nawaz and another' (2002 SCMR 1842). Under the circumstances, there is no material conflict between the ocular account and the medical evidence of the prosecution and in our humble view, the ocular account of the prosecution has fully been supported by the medical evidence.
14. Insofar as the motive part of the prosecution case is concerned, we have D noted that according to the prosecution witnesses, the appellant committed the occurrence due to his quarrel with the son of Umar Hayat (deceased), namely, Asad but we have noted that no detail of the said quarrel like date, time and place has been mentioned by any prosecution witness. It is also noteworthy that no reason of the aforementioned alleged quarrel between the parties has been given by any of the prosecution's witnesses. A vague and general statement has been made by the prosecution witnesses regarding the motive part of the occurrence. We are therefore, of the view that motive alleged by the prosecution has not been proved in this case.
15. Insofar as the recovery of rifle .222 bore (P-2) from the possession of Sami Ullah (appellant) is concerned, we have noted that the Investigating Officer has taken into possession six empties from the spot on the day of occurrence vide recovery memo (Exh.PC), whereas, rifle .222 bore (P-2) was allegedly recovered from the possession of Sami Ullah (appellant) vide recovery memo (Exh,PE) however, report of PHA, Lahore (Exh. PN) in respect of the abovementioned recovery is in the negative and the empties recovered from the spot could not be found to be fired from the rifle .222 bore (P-2), recovered on the pointation of Sami Ullah appellant. In the light of above, alleged recovery of .222 bore rifle (P-2) on the pointation of the appellant is inconsequential and no benefit could be extended to the prosecution on account of abovementioned recovery.
16. We have disbelieved the prosecution evidence qua motive and recovery of rifle .222 bore (P-2) on the pointation of Sami Ullah (appellant) due to the reasons mentioned in paras Nos. 14 and 15 above, however, if the prosecution evidence qua motive and the recovery rifle .222 bare (P-2) is excluded from consideration, even then sufficient incriminating evidence is available on record to prove the prosecution ease against the appellant. As discussed earlier, the prosecution case has been proved against the appellant through the reliable and confidence inspiring evidence of eye- witnesses, namely, Saif Ullah complainant (PW-1) and Munir Ahmad (PW-2). They stood the test of lengthy cross-examination but their evidence could not be shaken regarding the role played by the appellant during the occurrence and causing fatal firearm injuries to the deceased. The ocular account of the prosecution as given by Saif Ullah complainant (PW-1) and Munir Ahmad (PW-2) about the abovementioned role of the appellant regarding the commission of the murder of Umar Hayat (deceased) is fully supported by the medical evidence furnished by Dr. ArsIan Karim (PW-9), postmortem report of Umar Hayat deceased (Exh.PL) and pictorial diagram (Exh.PL/1). The time of occurrence, the kind of weapon used, the nature and scat of injuries inflicted by the appellant to the deceased, all these facts as stated by the abovementioned eye-witnesses were fully supported by the aforementioned medical evidence therefore, we hold that the prosecution has proved its case against the appellant beyond the shadow of any doubt.
17. Now coming to the quantum of sentence, we have noted some mitigating circumstances in favour of the appellant. Firstly prosecution has set a motive against Sami Ullah appellant but has failed to prove the same due to the reason mentioned in para No. 14 of this judgment. Secondly, recovery of rifle .222 bore (P-2) on the pointation, of the appellant has been disbelieved by us due to the reasons mentioned in paragraph No. 15 of this judgment. Under the circumstances, the death sentence awarded to the appellant is quite harsh and the sentence of imprisonment for life shall meet the ends of justice.
18. While treating it a case of mitigation, the conviction of Sami Ullah appellant under Section 302(b), P.P.C. awarded by the learned trial Court is maintained but his sentence is altered from death to imprisonment for life. The compensation awarded by the learned trial Court against the appellant and sentence in default thereof are maintained and upheld. The benefit of Section 382-B of Cr.P.C. is also extended in favour of the appellant.
19. Consequently, with the above said modification in the conviction and sentence of Sami appellant, Criminal Appeal No. 258898-J of 2018 filed by the appellant is hereby dismissed. Murder Reference (M.R. No. 390 of 2018) is answered in the negative and death sentence of Sami Ullah appellant is not confirmed.