' MIAN BURHANUDDIN KHAN, J.-The appellant was tried by the learned Sessions Judge, Sialkot, under section 302 and 307 two counts for committing the murder of Jallandar Khan, and attempting on the lives of Haq Nawaz and Zahid Khan, P. Ws. By firing at them with his service rifle Exh. P./3. He was convicted and sentenced to death under section 302, P. P. C. And a fine of Rs, 1,000 in default, to undergo R. I. For three months and to pay compensation of Rs, 1,000 under section 544-A, Cr. P. C.
To the heirs of the deceased or in default to undergo 3 months' R. I. He was further awarded 2 years'
R. I. Under section 307, P. P. C. On each count.
2. The appellant filed an appeal in the Lahore High Court against his conviction and sentences, while Murder Reference was also placed before the learned Judges for confirmation of death sentences -passed on him, under section 374, Cr. P. C. The appeal was dismissed in its entirety and death sentence confirmed as well as conviction and sentences awarded by the trial Court were maintained vide the impugned judgment dated 3-9-1979. Thereafter, petition for leave to appeal was filed in this Court and leave was granted per order dated 16-12-1980, to re-examine the evidence on the points raised by the learned counsel for the petitioner.
According to the prosecution case the appellant was Guard Commander in the Rangers as Incharge of Jhummian Post whereas the deceased Jallandar Khan and P. Ws. Zahid Khan and Haq Nawaz were also posted there. On 20-2-1977 it is stated that at about 6-30 p.m. Deceased Jallandar Khan took over the duty at the Observer Post ihummian from Mian Gul as he (Mian GuI) was going to offer his evening prayers. Jallandar Khan deceased hardly stood near the Observer Post when the accused ,Mirza Khan fired at him with his service rifle from behind, hitting him on his back and be fell down. L./Naik Haq Nawaz and Zahid Khan, in order to apprehend the accused/appellant, went ahead but the accused fired at Haq Nawaz ineffectively and hit the door of the room of Zahid Khan. The accused then fired the third shot at Zahid Khan who ran and entered his room and the bullet hit the eastern wall of the room of Zahid Khan and thereafter accused/appellant made good his escape.
4. Report of the incident was lodged by Zahid Khan, who met Muhammad Ashraf S.-I. On his way to Police Post Charar. Muhammad Ashraf, S.-I. Recorded the said report, Exh. P. E. And set the same to the Police Station where F. I. R., Exit. P. E /1 was formally registered. Muhammad Ashraf, S.-I, then proceeded to the spot where he prepared the injury statement, Exh. P. J and inquest report, Exn. P. K.
And sent the dead body of Jallandar Khan deceased to the mortuary for the post-mortem examination. He also took blood-stains from the spot ex-Memo. P. F. ; took into possession two crime empties Exh. P. 5 and Exh. P. 6 and sealed them into a parcel. Haq Nawaz P. W. Produced betore him the duty roster Exh. P. H., which he took into possession vide Memo. Exh. P. H./I. He arrested the accused/appellant on 2t-2-1977. Capt. Muhammad Aslam Dogar, Adjutant of the Rangers produced before him rifle Exh. P. 3 and 7 bullets Exh. P. 4/1-7 which were taken into possession vide Memo. Exh. P. C. The site plans, Exh. P. B. And Exh. P. B./1 were prepared by draftsman and the same Investigating Officer made certain entries in red ink on the said plans.
5. Dr. Muhammad Aslam Bhatti P. W. 8 performed the post-mortem examination on the dead body of L/Nk. Jallandar khan R-4677 on 21-2-1977 and found a gunshot wound r x e" on the back right side of chest at lower part. Tatooing present around the wound of entrance. An exit wound on the lower part of sternum extending on either side of the chest wall. Torn heart protruding from the wound and liver stomach were punctured and so were right lung, lower lobe. In the doctor's opinion the injury was dangerous to life and death was due to shock and haemorrhage resulting from injury No. 1 which was sufficient to cause death in the ordinary course of nature.
6. The bullets and crime shells were examined in the Forensic Science Laboratory and report Exh. P.
N. Was submitted in evidence by the prosecution and report of the Fire-arm expert shows that '303 bore crime empties marked as Cl and C2 had been fired from the '303 bore rifle No, B.
13269.
7. Direct ocular evidence is found in the testimony of Zahid Khan P. W. 9, Nasiruddin P. W. 10 and Haq Nawaz P. W.
11. According to Zahid Khan on 20-2-1977 at about 6-30 p.m. He was standing outside his room in the door, of Jhummian Post alongwith Haq Nawaz, P. W. Nk. Mirza Khan accused/appellant was Guard Commander in the said Post. He was armed with a rifle and was standing in the courtyard of the Post. L/Nk. Mian Gul was on duty at the Observer Post. Who asked the deceased Jallandar Khan to take over his duty as he was going to offer his evening prayer. The deceased took over the rifle of Mian Gul and stepped up the Observation Tower. In the meantime the accused/appellant, after abusing the deceased, fired at him with his rifle who was facing towards the border line. Haq Nawaz, P. W. Tried to apprehend the accused but the accused/appellant fired at him and the bullet hit the frame of the door of Zanid Khan's room. The accused fired again at the witness (Zahidan) but the bullet hit the wall of his room and thereafter the accused. Ran away. Hay. Asghar Ali and Hay. Nasiruddin tried to apprehend the accused but he made good his escape. He then proceeded to the Police Station for lodging the report. He met the Sub-Inspector near Head Marala and he recorded his report Exh. P. E.
8. According to Zahid Khan, P. W. 9 the accused being Commander of the Post, had complained to him about the indisciplined habits and activities of the deceased, about for days prior to the occurrence. He passed on this complaint against the deceased to the Company Commander orally who directed him, to obtain a written complaint from the accused but the latter refused to give the complaint in writing. Nasiruddin P. W. 11 supported the prosecution case and so did Haq Nawaz P. W.
11.
9. The accused when examined, denied the charges. He however, admitted that he was arrested when he was in custody of Capt. Dogar and the rifle and bullets were taken into possession at the time of his arrest. When questioned as to why this case is against him, he stated that he had been falsely implicated due to suspicion, and added that what actually happened was that Sultan and Mian Gut were on Guard duty and Jallandar Khan was found dead outside the Post and Zahid Khan P. W. Was not present there but when he came he suspected him (accused/appellant) as murderer and tried to apprehend him and he, therefore, fired in the air in order to scare them away.
He then left the Post and went to the Adjutant and reported the matter to him. Learned counsel for the accused/appellant raised the following points :
(a) According to the original version of the incident the deceased was standing at the Post when he was allegedly fired at by the accused/ appellant but this story is belied by the circumstantial evidence :
(i) medical evidence.
(ii) absence of the blood from the spot where the deceased is alleged to have fallen.
(iii) absence of any injury on the deceased due to the fall from the Observation Post.
(iv) The direction of the wound.
(b) The deceased, who was supposed to be on duty, was net in uniform. This further belies the prosecution case.
(c) Roster of the duty Exh. P. W. Relied by the prosecution, does not support the prosecution case.
(d) The motive as alleged in the F. I. R. Has also not been established and the prosecution had been at pains to introduce a new motive during the tr.11.
(e) The recovery of crime empties and rifle is also doubtful as there is no explanation as to why the empties as well as the rifle were retained for a long time by the 1.
0. And the same were not sent to the Forensic Expert. In fact the possibility of crime empties have been tampered with, could not be excluded.
10. We have examined the afore-mentioned points one by one and we find that most of them have no force. The occurrence took place within the Jhummian Rangers Post where the witnesses were present. Zahid Khan, B Nasiruddin and Haq Nawaz P.Ws. Have no enmity whatsoever with the accused/ appellant nor the defence had been able to show any motive for these witnesses to implicate the accused/appellant falsely in such a serious criminal case.
11. Regarding the Rangers Post itself we find from the perusal of the Site plan, Exh. P. B./1 that over the top of the roofs of the rooms there is a parapit wall covered by another roof and this, in fact, is not a tower from where if a person fell, would receive injuries of the kind of contusions or abrasions.
Etc. It is also in evidence that the Investigating Officer found blood where the deceased had fallen after being bit and this spot has been shown in the site plan Exh. P. B./1. The blood-stained earth was sent to the Serologist and his report Exh. P. M. Had been found positive.
12. The next objection regarding the delay in sending the crime empties and rifle to the Arms Expert we find that Nazir Ahmad, P. W. 4 Moharrir Head Constable received two sealed parsels on 21-2- 1977 from Muhammad Ashraf, S.-1. And he kept the same in Malkhana for safe custody. On 27-2- 1977 he handed over the said parcels intact to Abdul Ghafoor, F. C. For onward transmission to the office of the Chemical Examiner, Lahore and Director, Forensic Science Laboratory, Lahore. On 22-2- 1977 he received the third parcel containing rifle for custody from Muhammad Ashraf S.-I. And he kept the same too in the Malkhana. On 15-3-1977 he handed over the said parcel intact to Khurshid Ahmad, F. C. For onward transmission to the office of the Director, Forensic Science Laboratory, Lahore. Khurshid Ahmad, F. C. P. W. 2 corroborated the statement of Nasir Ahmad Moharrir (P. W. 4).
He delivered the sealed parcel intact in the office of the Director, Forensic Science Laboratory at Lahore. Neither Nazir Ahmad Moharrir nor Khurshid Ahmad has been cross-examined aboat the delay or any tampering with the empties. Abdul Ghafoor P. W. 3 also appeared and supported the statement of Nazir Ahmad, Moharrir regarding the receipt and delivery of the parcel to the Forensic Science Laboratory, Lahore intact. He had also not been cross-examined.
13. Regarding the contention that the medical evidence is in conflict with the ocular testimony we have gone through the evidence and find that none of the witnesses had said that the accused fired from the courtyard of the Post at the deceased. They only heard the report of a shot and on looking in that direction, saw the accused/appellant with the rifle and the deceased falling to the ground. Thus, it is obvious that the deceased was fired at from close range by the accused, the bullet making a straight exit wound in line with the entry wound and also causing tattooing around the wound of entry. In this regard we refer to the statement of Zahid Khan, P. W. : "Jallandar Khan deceased took rifle from Mian Gul and went on the tower for duty in place of Mian Qui. The accused abused Jallandar Khan and fired on with rifle."
' Nasiruddin, Nursing Hawaldar Rangers (P. W. 10) stated that : "I and Hawaldar Asghar Ali P. W. Were present in front of the barrack of Jhummian Post. We heard the report of gunfire which hit Jallandar Khan deceased. The fire was shot by Mirza Khan accused."
13. The last contention is regarding motive for the crime. Undoubted at the first instance Zahid Khan had stated that the deceased had complained against the accused for indiscipline but at the trial he stated that the accused had indisciplined habits by which he meant to say that the deceased had illicit relations with a woman of the nearby village. In re-examination by the prosecution be stated : "Both the accused and the deceased had illicit intimacy with the wife of servant of one Rana of village Ikramabad situate near village Jhummian and both were rivals."
' On cross-examination he stated that he had not stated so in the report Exh. P. E. And that information was not given by him to the Police on any later stage. He further admitted that Rana's servant or his wife are not known to him nor had he ever seen them. This argument may prevail to the extent that the motive furnished by the prosecution has become doubtful ; that there could have been any other reason for the accused to fire at the deceased suddenly when the latter abused him. It is not always possible or necessary for the prosecution to prove the motive of the accused in committing a crime and in the absence of any proof of motive, it is not in C itself sufficient to justify the rejection of evidence which is otherwise reliable. But if the motive is falsified the accused in a case as in hand, would be entitled to lesser punishment.
Thus, we alter the sentence of death, awarded to the accused/appellant, to imprisonment for life under section 302, P. P. C. And maintain conviction and sentence on both counts under section 307, P.P.C. We would award corn pensation of rupees ten thousand under section 544-A, Cr. P. C. To the heirs of the deceased, and in default, six months' R. I. The sentence of substantive punishment to run concurrently. Benefit of section 382-B. Cr. P. C. Is also extended to the accused/appellant. As above.