SHAMEEM HUSSAIN KADRI, ACTG. C. J.-Yaqoob, aged 35 years, was tried by the learned Additional Sessions Judge, Sahiwal, for the murder of Bashir. The learned Additional Sessions Judge convicted him under section 302, P. P. C., sentenced him to death and to pay a fine Rs. 2,000 or in default to suffer six months' rigorous imprisonment. The learned trial Court allowed half of the fine, if recovered, to be paid as compensa--tion under section 54-A, Cr. P. C. To the heirs of the deceased by its judgment dated 8th January, 1979. The appellant has challenged his conviction and sentence through the present appeal. The case is also before us under section 374, Cr. P. C. For confirmation of the sentence of death. This judgment disposes of the Criminal Appeal and the Murder Reference.
2. The occurrence is said to have taken place on the night between the 2nd and 3rd of July, in 1977, in Chak No. 34/2-R. A. At a distance of three miles from Police Station Saddar, Okara. According to the statement of Nazar Muhammad (P. W. 9) brother of the deceased, he took the injured to the hospital where his statement (Exh. P. K.) was recorded by S. H. O. Ahmad Saeed (P. W. 12) at 8-40 a.m. Who was informed by the Medical Officer of the critical condition of Bashir having been admitted in the hospital vide ruqqa (Exh. P. C.) sent at 6 a.m. In his statement Nazar Muhammad P.
W. Gave the story that about two and a half years earlier his brother's wife Mst. Bashiran (P. W. 10) eloped with the appellant and was got returned by the Punchayat. Thereafter the accused used to come at the Bhaini of the deceased off and on during night. On the night of occurrence the deceased and Mst. Bashiran were sleeping outside their house in an open Courtyard. On the barking of dogs his brother and sister-in-law woke up and raised alarm which attracted him and Gandu (P. W. 11) at the spot. They saw the accused grappling with his brother Bashir deceased. On throwing a challenge the accused left his brother. He and his companions tried to capture the accused who fired his 12 bore pistol at the deceased which hit him on. The forehead and shoulder.
On the basis of the statement (Exh. P. K.) made by Nazar Muhammad (P. W. 9) formal F. I. R. (Exh. P.
K/ 1) was recorded at 8-50 a.m. On 3rd July, 1977 by Nazir Ahmad Muharrir A. S.-I. (P. W. 3).
3. The pistol in this case has riot been recovered. Only empty (Exh. P. 4) was taken into possession' from the spot vide Memo: Exh. P. J. On 3rd July, 1977 by Ahmad Saeed (P. W. 12) the Investigating Officer in this case. He also took into possession blood-stained earth from the spot vide memo. Exh.
P. H. The same day. The other recoveries of the blood-stained clothes of the deceased are irrelevant. Even the recovery of the empty is of no consequence. '
4. Bashir died on 6th July, 1977 in the hospital and Dr. Shabbir Suleman (P. W. 1) Medical Officer, Civil Hospital, Hujra, who was posted at Okara Civil Hospital at the relevant time, performed the autopsy on the dead body of Bashir deceased. He found two firearm injuries-one on the forehead and the other on the right upper arm of the deceased. According to him, injury No. 1, i.e. The head injury, was sufficient to cause death in the ordinary course of nature.
5. The prosecution story hinges on the ocular testimony of Nazar Muhammad (P. W. 9) who is the brother of Bashir deceased, Mst. Bashiran (P. W. 10) widow of the deceased and Gandu (P. W. 11) father-in-law of the deceased.
6. Learned counsel for the appellant argued that this being a night occurrence has not been seen by the eye-witnesses who are close relations of the deceased. The argument is fallacious for the simple reason that although the witnesses are related to each other, yet they are natural witnesses living near the place of occurrence. The presence A of the accused cannot be considered to be improbable for the reason of his earlier abduction of the wife of the deceased and further clandestine visits to the house of the deceased in order to persuade the woman to fall in his trap.
7. The defence in this case is complete denial. In. Answer to question No. I1 as to why this case against him, the appellant stated that he has been falsely implicated and pleaded alibi that he was present in Mauza Dharma alongwith his brother on the night of the occurrence. This village is at a distance of 22 miles from the place of occurrence. B None has been produced in support of his plea of alibi although one of the Investigating Officers has given this concession that he had examined certain persons of the village. In our view there is no force in the plea of alibi and the Investigating Officer has stated in order to help the accused.
8. The last submission of the learned counsel was that the appellant's case falls within Exception 4 to section 300, P. P. C., for he was running away from the spot in order to avoid his arrest and he fired without any intention. In support of his submission he cited Kaisar v. State (PLD 1980 Kar. 199) and Abdul Rashid v. The State (1981 P Cr. L J 1107). Both the cases are distinguishable. The statements of the eye-witnesses, though vary in giving the distance from where the accused had shot to the spot in terms of karams, could be c hardly relevant for the plea which the learned counsel has taken. The appellant was arrested about a fortnight after the occurrence and the prosecution has not explained it. We would have allowed the benefit if the defence had tried to substantiate the plea of alibi. In the instant case the late arrest of the appellant is obviously of no consequence and it is perhaps the intention of the police to help the accused.
9. After going through the evidence we are of the view that the prosecution has proved the case beyond reasonable doubt and the learned counsel for the appellant 'was unable to demolish the case. In fact he argued straightaway that the case of the appellant falls within the Exception. We are afraid we cannot agree with the submission made. However, we would not like to confirm the death sentence in this case for the reason that earlier the lady had eloped with the appellant and she remained for some time with him and was restored through the aid of the Punchayat. There is some discrepancy about this in Mst. Bashiran's statement as well. We, therefore, while maintaining the conviction of the appellant under section 302, P. P. C. Alter his sentence to that of life imprisonment. The sentence of fine is also maintained. The entire amount of fine shall be paid as compensation to the heirs of the deceased under section 544-A, Cr. P. C. The sentence of death is not confirmed.
M.Y.H. Death sentence not confirmed,