' KHALIL-UR-REHMAN RAMDAY, J.-- - Liaqat, Aslam and Sher Muhammad had been tried by a learned Additional Sessions Judge of Bhalwal for the muder of one Ashfaq Hussain. Through its judgment dated 17-11-1990, the said learned Court acquitted Aslam and Sher Muhammad accused but finding Liaqat guilty of the charge, convicted him under section 302, P.P.C. And punished him with death and a fine of Rs,50,000 or sufferance of five years' R.I. In default of payment of the said fine. Out of the said fine, a sum of Rs,40,000 was directed to be paid to the heirs of the deceased as compensation.
2. Murder Reference No,232 of 1990 seeks confirmation of the said sentence of death while Liaqat has filed Criminal Appeal No,824 of 1990 to impugn the above-noticed conviction and sentences recorded against him. Both these matters are being disposed of together through this single judgment.
3. The occurrence in question had taken place on 13-2-1988 at about 12 noon on the Canal Service Road near Bangla Jholpur about ten miles from Police Station Kot Momin of District Sargodha. It was Syed Alam Shah P.W. Who had reported the said occurrence at the said police station the same day at about 1-00 p.m.
4. He had informed the police that one Ashfaq Hussain was his nephew who was suffering from fever and as the father of the said Ashfaq was away to Lahore, he took the said Ashfaq Hussain to the Canal Dispensary situate in Bangla Jholpur, on a bicycle for treatment. He had added that the doctor was not available there and after waiting for the doctor for some time, the complainant and said Ashfaq Hussain started back for their house. The complainant was driving the bicycle while Ashfaq Hussain was sitting behind on the carrier of the same. The complainant had claimed that just as they had gone past the house' of one Mian Amjad, Liaqat armed with a .12 bore gun, Aslam armed with a .12 bore carbine and Sher Muhammad who was empty-handed stood up from the Khatans adjacent to the Canal Service Road and on a La'Tara raised by Sher Muhammad accused that they had come to avenge the murder of his brother, Liaqat and Aslam fired shots hitting Ashfaq Hussain who tell down and died. The assailants allegedly ran away from the place of occurrence.
5. Alam Shah complainant had further disclosed that about 25/30 years prior to the present occurrence, one Ahmad who was a brother of Sher Muhammad accused had alongwith three others entered the house of ohe Chaudhry Ghulam Rasool of their village for the purpose of theft when the inmates of the house woke up and on the alarm raised by them, the residents of the village, including the elders of Ashfaq Hussain deceased, reached the spot and tried to apprehend the abovementioined thieves which led to a fight between the said thieves and the villagers which finally resulted in the death of the abovementioned Ahmad, a brother of Sher Muhammad accused. The complainant had further alleged that the father of Ashfaq deceased of the present case, namely, Sarwar Shah had pursued the said matter and had not permitted the registration of a case regarding the death of the said Ahmad and had in fact ensured that the abovementioned companions of the said Ahmad were punished. He had further claimed that it was on account of this grievance that Liaqat, Aslam and Sher Muhammad had murdered Ashfaq Hussain deceased.
6. During the spot inspection, an empty cartridge P.5 was found at the alleged place of occurrence and was seized vide memo. Exh.P.E. It was kept in safe custody by Abdul Rauf A.S.I. (P.W.7) till 20-2- 1988 when it was handed over to Muhammad Ayyub F.C. (P.W.2) who delivered the same at the Forensic Science Laboratory where it had been received on 21-2-1988. Liaqat appellant had been arrested on 30-3-1988 and on the same day he had allegedly led to the recovery of a licensed gun P.6 which was seized vide memo. Exh.P.I. This gun had been despatched to the Forensic Science Laboratory on 4-4-1988 as per Muhammad Ayyub F.C. (P.W.2). According to the report of the Fire- Arms Expert (Exh.P.L.), the said crime empty had been found to have been fired from the said gun P.6.
7. When confronted with the prosecution case, Liaqat appellant denied his participation in the occurrence in question and also denied the recovery of the empty cartridge from the spot and the recovery of gun P.6 from him. He attributed his false implication to enmity. He elected not to make a statement on oath as envisaged by section 340(2) of the Cr.P.C.
8. Canvassing acquittal for him, his learned counsel argued that the two eye-witnesses were inimical and interested; that they had only been planted as eye-witnesses and had in fact not witnessed the occurrence in question; that the prosecution had failed to prove the motive alleged by it; that the alleged recoveries of the crime-empty and the gun had been fabricated and finally that the prosecution had failed to prove its case against the appellant.
9. The grandfather of Ashfaq deceased was an uncle of Syed Alam Shah complainant. A Khala of the deceased was married to a brother of the complainant while a sister of Ashfaq deceased was married to the son of another brother of Alam Shah complainant. He is thus rather closely related to the deceased. The complainant admitted that he was an injured witness of the occurrence of motive which had taken place about 25/30 years ago and had pursued the matter against the party of Ahmad deceased of the said case who was a brother of Sher Muhammad accused of the present case. He further admitted that Ashfaq deceased had four brothers, one of whom, namely, Ijaz was about 20/22 years of age and was a cultivator in the village. He also admitted that Muhammad Shafi was the uncle of Ashfaq deceased who resided in the same village and even owned a scooter and further that the deceased had at least eight cousins living in the said village.
It was argued firstly that the complainant was an inimical witness and secondly that in the presence of the other closer relatives of the deceased being available in the village, there was no occasion for Alam Shah complainant to take the deceased to the doctor for his medical treatment.
10. The existence of the other close relatives of the deceased in the village is not by itself sufficient to conclude that Alam Shah complainant had not and could not have ever taken Ashfaq deceased to the doctor for treatment. Ashfaq deceased had his father, his brothers, his uncle and his cousins living in the same village. If a witness had to be planted, then all these persons were available to the prosecution for such a plantation and their plantation would have even sounded more natural.
The prosecution, however, left all these close relatives out and picked on Alam Shah as the person who had carried the deceased to the doctor. Fabrication is always for a purpose. The prosecution had to gain nothing by leaving out the abovementioned closer relatives of the deceased and by putting up Alam Shah as a false witness unless it was factually correct.
11. Thus, the claim of Alam Shah complainant that it was in fact he who had taken Ashfaq deceased to the doctor on his bicycle and was bringing him back to the village when the occurrence in question had taken place, is a claim which inspires confidence. He is related to Ashfaq deceased.
He was involved in the incident of motive as having been injured in the said occurrence and being a witness thereof. The dictates of safe administration of justice would therefore, warrant that the testimony of this witness should not be acted upon, unless corroborated.
12. The present occurrence had taken place on 13-2-1988. A crime empty had been recovered from the place of occurrence on that very day which had been despatched to the Forensic Science Laboratory on 20-2-1988. Liaqat appellant had been arrested on 30-3-1988 i,e. More than five weeks after the said crime empty had ceased to be in the control of the Investigating Officer. It had never been claimed by Liaqat appellant that he had in fact been arrested before 20-2-1988 i,e. The date on which the crime empty had been sent to the Forensic Science Laboratory. It may also be mentioned here that the said gun was the licensed gun of Liaqat appellant.
13. In our opinion, therefore, the recovery of the crime empty from the place of occurrence and the report of the Fire-arms Expert of the said crime empty having been fired from the gun recovered at the instance of Liaqat appellant, offered the kind of corroboration which was sufficient for the verification of the complainant's oral testimony. Nothing could be urged to demonstrate that the medical evidence was in any manner destructive of the ocular testimony. The disbelief of the eye- witness account as against two of the acquitted accused persons is only a case of sifting the chaff from the grain for safe administration of justice. In any case, reliance on the oral testimony with respect to the other accused persons is permissible but is subject to sufficient corroboration being available for the purpose. Needless to say that we have found such corroboration available on record in support of the ocular testimony.
14. Muhammad Baldish (P.W.9) had no enmity with Liaqat appellant. He is not a relative of the complainant party but has a thrasher which he jointly owns with the father of Ashfaq deceased. Be that as it may, we have already found corroboration available in support of the ocular testimony.
15. It is true that Liaqat appellant was not one of the participants of the occurrence of motive. He might have been rather small at the time of the said occurrence or may not even have been born then. This is, however, no ground to hold that no such person could ever have any grouse in respect of the damage done to the elders of such a person. Needless to say that Ahmad deceased of the said occurrence was an uncle of Liaqat appellant. Admissions do exist on record on the part of the complainant that no untoward incident had ever taken place between the appellant and the members of the family of Ashfaq deceased but the possibility could not be ruled out that the target of the attack at the time of the present occurrence was not Ashfaq deceased but was in fact Alam Shah complainant and that it was only through a chance that Ashfaq deceased had received the fire-arm injury.
16. We, therefore, find that while no exception can be taken to the finding of guilt as recorded against Liaqat appellant by the learned trial Court, the prosecution had failed to prove any motive on the part of Liaqat appellant to kill Ashfaq deceased. As we have mentioned above, it is possible that it was Alam Shah complainant who was the target of the attack and the shots fired at him per chance landed on the person of Ashfaq deceased or else the motive for the attack on Ashfaq deceased was shrouded in mystery.
17. In the circumstances, we find no justification for imposition of sentence of death on Liaqat appellant. Consequently, the sentence of death awarded to him is NOT CONFIRMED. He shall instead suffer imprisonment for life under section 302, P.P.C. We also find that imposition of a fine of Rs,50,000 is rather harsh. Therefore, the amount of fine imposed on Liaqat appellant is reduced to a sum of Rs,25,000 or sufferance of two years' R.I. In default of payment of the said fine. It is however, directed that the entire amount of fine shall be paid to the heirs of Ashfaq deceased, as compensation. The appellant shall be allowed the benefit of the provisions of section 382-B of the Cr.P.C.
18. Murder Reference No,232 of 1990 and Criminal Appeal No,824 of 1990 are disposed of in the above terms.
Sentence reduced.