' SH. MUHAMMAD ZUBAIR, J.--- Khalid Maqsood alias Tony appellant alongwith Waqar Rizvi alias Buba, Zahoor-ul-Hassan, Iqtedar Safdar and Asif Manzoor was tried under section 302/307/148/149, P.P.C. By the learned Additional Sessions Judge, Lahore. The learned trial Judge vide his judgment, dated 9-6-1991 acquitted Waqar Rizvi alias Buba, Zahoor-ulHassan, Iqtedar Safdar and Asif Manzoor of the charge but convicted Khalid Maqsood alias Tony under section 302, P.P.C. And sentenced him to death and a fine of Rs,15,000 or in default thereof one year's R.I. And half of the fine, if recovered was ordered to be paid to the heirs of the deceased as compensation. The convict has appealed. Reference under section 374, Cr.P.C. Is also before us. This judgment will dispose of both the matters.
2. The prosecution case as disclosed in the statement of Exh.P.D. Of Nadir Hussain P.W.4, which was recorded by Mansoor Ahmad, S.I. At Ganga Ram Emergency Ward on 25-9-1989 at 10-55 p.m. Is that the appellant ran a Carom Club at Nadim Shaheed Road and boys from the Mohallah used to play game there. Four days prior to the occurrence the deceased Aamer Javed exchanged hot words with the appellant but Mohalladars intervened. The appellant did not leave this matter. On the day of occurrence at 8-30 p.m. The complainant and his son Aamer Javed deceased went to Samanabad Market to make purchases. There he met Nadim Barkat a friend of Aamer Javed deceased. After making the purchases all the three, i,e, Nadir Hussain complainant, Aamer Javed deceased and his friend Nadim Barkat were returning to their house. When they reached in the middle of Doungi Ground at that time the appellant armed with pistol, Babar alias Buba and a friend of the appellant came there while raising Lalkara and said that they would not leave Aamer Javed alive. Babar alias Buba caught hold Aamer Javed in his clasp and the friend of the appellant and Zahoor held the deceased from his arms. The appellant fired a pistol shot which hit the deceased underneath his chin. Nadim Barkat tried to rescue the assailant but the appellant fired a pistol shot which hit him on the right arm. The complainant raised alarm whereupon Muhammad Salim and Shafqat Mahmood reached the spot. Seeing the witnesses the assailants decamped.
Aamer Javed was lying on the road. He was transported to Ganga Ram Hospital for treatment where he succumbed to the injuries. Nadim Barkat was admitted in the hospital.
3. Mansoor Ahmad, S.I. P.W.7 sent the statement of Exh.P.D. To Police Station Samanabad where formal F.I.R. Exgh.P.D./1 was recorded by Muhammad Akhtar, M.H.C., P.W.8, the same day at 11-20 p.m. Mansoor Ahmad, S.I. Prepared the injury statement Exh.P.F. And inquest report Exh.P.G. And sent the dead body to the mortuary for post-mortem examination. He recorded the statement of Nadim Barkat in the Hospital, then he alongwith Nadir Hussain, complainant went to the place of occurrence. He collected blood-stained earth vide memo. Exh.P.E. On 13-7-1989, Zahoor-ulHassan and Waqar alias Buba were arrested. On 2-8-1989 he obtained warrant of arrest of Iqtedar Safdar (acquitted accused). He arrested the appellant on 4-8-1989. On 18-8-1989, the appellant got recovered Mauzer P.1 alongwith two live cartridges P.2/1-2 from his house vide memo. Exh.P.E./1.
After the postmortem Arshad Mahmood, F.C. Handed over the last-worn clothes of the deceased to S.I. Which were taken into possession vide memo. Exh.P.J. He got prepared site plan Exh.PA. And its copy Exh.P.A./1 from Younis Ali, P.W.1 Draftsman. On 21-8-1989, the investigation was transferred to Tahir Alam, Inspector P.W.9. The said Inspector partly investigated this case, but again the investigation was transferred to D.S.P., Moghalpura, on 12-9-1989, thereafter the police after completing legal formalities submitted the challan in the Court.
4. Dr. Khalid Bin Kabir, P.W.3 medically examined Nadim Barkat and found a lacerated wound (wound of entry) size 1.25 c.m. x 1.00 c.m. Into midway between shoulder and elbow of right arm on outer aspect, there was no exit wound.
5. Dr. Haroon Hamid, P.W.10 conducted post-mortem examination on the dead body of the deceased on 25-9-1989 and found:--
(1) A fire-arm wound of entry 1 c.m. x 8 c.m. x 2.5 c.m. To the left of mid-line on the neck.
3.5 c.m. Below the left angle of mouth. On exploration the tissues under lying were bruished and lacerated. On tracing the path of the bullet, it passed obliquely, entering the spinal cord between C3 and C4 cervical vertebrae and existing through the body of 4th cervical vertebrae; transcending the cord at this level and was recovered from the Rt. Side of 4th cervical vertebrae. It was sealed, packed, signed and handed over to the police.
(2) A bruise 4 c.m. x 2 c.m. x 1.5 c.m. Below the outer angle of Rt. Eyebrow and 4.5 c.m. From the Rt.
Ear. The underline tissues were bruised.
(3) A bruise 3 c.m. x 1 c.m., 2.5 c.m. From the Rt. Angle of the mouth and 7.5 c.m. From the Rt. Ear. The underlying tissues were bruised.
(4) An abrasion on the drosal aspect of Rt. Middle finger 1 c.m. x .5 c.m.
(5) Abrasions four in number, in an area of 5 c.m. x 2 c.m. On the dorsal aspect of left middle finger.
' The doctor opined that injury No,1, which was caused by fire-arm, leading to injury to the spinal .Cord was sufficient to cause death in the ordinary course of nature. The remaining injuries were caused by blunt weapon.
6. The appellant when examined denied the prosecution allegations and pleaded that the recovery of pistol has been planted upon him. He further stated that it was a dark night occurrence. The witnesses could not identify the real assailant and on account of suspicion and enmity, he has been falsely involved. He also stated that the independent witness Nadim Barkat was not produced by the prosecution, as he was not prepared to support the prosecution story. He made the following statement explaining the case against him.
"I am innocent. Aziz-ur-Rehman P.W. Used to live in the house of Aamer Javed deceased. Zaheer Khan P.W. And Aziz-ur-Rehman are friends inter se. Zaheer Khan used to visit the house of Aziz-ur- Rehman P.W. And Aamer Javed deceased suspected that P.W. Aziz-ur-Rehman used to see the sister of Aamer Javed deceased in bad manner. Aamer deceased requested Aziz-ur-Rehman P.W.
To stop Zaheer Khan P.W. Visiting at his house upon this, hot words were exchanged between Aamer Javed deceased and P.W. Aziz-ur-Rehman. Two weeks prior to the occurrence, at about 10 a.m. The deceased Aamer Javed was playing Carom Board in my club. At that time P.W. Aziz-ur- Rehman and Zaheer Khan came there and Aziz-ur-Rehman P.W. Told the deceased that he was unable to stop Zaheer Khan visiting him. The deceased told Aziz-ur-Rehman P.W. That Zaheer Khan should be stopped visiting him because he looked at his sister in bad manner. On this altercation took place between Aziz-ur-Rehman P.W. And Aamer Javed. Aziz-ur-Rehman P.W. Gave slaps to the deceased. I intervened whereupon, Aziz-ur-Rehman P.W. Also abused me and threatened with dire consequences."
' He also made statement under section 340(2), Cr.P.C. And produced in defence Syed Jamal Masood D.W.1, Syed Akhtar Ali Shah D.W.2 and Agha Tahir D.W.3.
7. The learned Trial Judge believing the prosecution evidence convicted and sentenced the appellant as indicated above.
8. The learned counsel for the appellant vehemently contended that the occurrence took place in the darkness of night and none of the eye-witnesses has actually seen the real culprit(s) committing the crime and that the appellant has been roped in this case falsely due to suspicion and enmity; the ocular version is against the medical evidence; numerous independent witnesses, though present, but none of them was examined; the injured Nadeem Barkat, whose presence cannot be disputed at the spot, was also not examined; hence it is a case of dishonest investigation and no reliance can be placed on the evidence so collected by the prosecution. The eye-witnesses are the near and dear of the deceased, Nadir Hussain P.W.4 is the father and Shafqat Mahmood P.W.5, has also got some relations with the deceased. Both the eye-witnesses are chance witnesses of the occurrence and they have failed to furnish any reasonable and plausible explanation for their presence at the spot. Nadir Hussain complainant was called from Faisalabad after considerable delay to become the complainant in this case in order to support a case, which was a case of no evidence. The F.I.R. Was lodged after preliminary investigation and that too after considerable delay and that the time given in the F.I.R. Is incorrect and thus it is not a promptly lodged F.I.R. The eyewitnesses have improved upon their statements in the Court in order to bring their evidence in line with the medical evidence; hence it would not be safe to record conviction on their uncorroborated and bare statements. The recovery of alleged weapon of crime at the instance of the appellant is not proved beyond reasonable doubt, as the recovery witness, apart from being a witness not from the locality, is the tenant of the complainant party. The motive, though alleged, yet not proved which adversely reflects upon the prosecution case, as a whole.
' In the end, learned counsel submitted that as the motive and immediate cause of murder is shrouded in mystery, hence it is not a fit case in which the sentence of death be confirmed.
9. The learned counsel for the State has supported the impugned judgment.
10. We have gone through the evidence with the able assistance of the learned counsel for the parties and have critically examined their respective contentions.
' Admittedly, the occurrence took place in Samanabad on the middle of road near Doungi Ground.
The assertion of the learned counsel for the appellant that it was a dark night occurrence, hence the eye-witnesses were not in a position to recognize the real culprit(s) is devoid of force, as the occurrence took place on the middle of road in Samanabad locality, where sufficient street light is always available thus the complainant was in a position to recognize the culprits, that is why the names of the appellant and his co-accused, since acquitted, were mentioned in Exh.P.D., i,e, the statement of the complainant. The complainant being the father of the deceased must be knowing the appellant fully well as his son used to play Carom in his club before the incident. The contention of the learned counsel that the complainant was summoned from Faisalabad to depose falsely in this case on account of his relationship is neither borne out by the record nor there is any positive evidence to that effect. The learned counsel has laid much stress on the statement of Nadir Hussain P.W.4, wherein he stated that in Mayo Hospital on 25-6-1989 (in fact it is 26-6-1989) his statement was recorded. This point is of insignificant nature. Probably, the police at the time of post-mortem examination of the deceased put certain questions to the complainant, who being an illiterate person must have thought that his statement was recorded by the police. If we read the statement of the complainant, as a whole, we find he clearly stated that his statement was recorded on the same day, within a few hours at Ganga Ram Hospital and, therefore, on the next day, post-mortem examination of the deceased was conducted and there he also made some statement. This fact, per se, does not lead to this inference that the police called the complainant from Faisalabad and thereafter made him the complainant. If for the sake of arguments, this theory of the learned counsel is accepted, then it remained mystery who disclosed the correct particulars of the complainant to the police on the basis of which he was summoned from his house. There is no background of between Nadir Hussain complainant and the appellant, neither any enmity was suggested nor it was proved, in these circumstances, the complainant has no earthly reason to involve the appellant falsely in this case.
' The contention of the learned counsel that Nadir Hussain P.W.4 has not furnished any plausible and reasonable explanation for his presence at the scene is devoid of force. The complainant has categorically stated that he had gone there to purchase cloth for his suit and he mentioned the length and approximate price of the cloth. Mere non-production of the purchased cloth by the complainant before the police, would not make him a false witness. The contention of the learned counsel that the conduct of the complainant was unnatural, because he did not try to intervene or catch hold the unarmed co-accused of the appellant, would not lead to this inference that he was not present at the spot, as fire-arm was used in the commission of this crime, the occurrence took place all of a sudden and it came to an end within few minutes, in these circumstances, no person would dare to go near the culprits in order to apprehend the assailant of the deceased. The accused party seems to be desperado, as Nadeem Barkat who tried to intervene, received an injury on his person, as is apparent from the statement of Dr. Khalid Bin Kabir (P.W.3), in spite of this, due to the fear of the appellant, Nadeem Barkat joined hands with the accused party and refused to give evidence before the Court against the appellant.
' The learned counsel has laid much stress on the so-called contradiction appearing in the statement of Nadir Hussain complainant (Exh.P.D.), such as he mentioned the exit wound as an entry wound or there were contradictions between the F.I.R. And his statement before the Court, as in the F.I.R. He stated that Nadeem Barkat met them (the complainant and the deceased) per chance at Samanabad, whereas before the Court at page 28 of the paper book, he deposed that he went for shopping alongwith Nadeem Barkat. These minor and insignificant contradictions do occur in the evidence of most straightforward witnesses due to lapse of time and also due to lack of perception. His evidence is straightforward and confidence inspiring, he narrated whatever he witnessed in the occurrence and in the absence of any enmity, as mentioned above, we find no legal justification to discard his statement.
11. The next eye-witness is Shafqat Mahmood P.W.5. He, as per his own statement, is a chance witness, because being permanent resident of Faisalabad, at the relevant time was residing on Wazir All Road, Upper Mall, Lahore, which is at a considerable distance from the place of occurrence. There is much force in the submission of the learned counsel for the appellant that the explanation offered by this witness for his presence at Samanabad in order to get appointment for one Ali Muhammad from Dr. Munir, an Eye-Specialist, who had his clinic in Samanabad, is neither reasonable nor plausible; hence it would not be safe to place reliance on his evidence. There are many glaring contradictions appearing in the statement of the witness, as he failed to establish that he was residing at the place mentioned above, as a tenant, because neither any rent deed was produced by him, nor the owner of the house was examined to show that he was his tenant, even his assertion that he had his relative by the name of Muhammad Rafique, who is milk-seller at Main Market is belied by the fact that neither Muhammad Rafique appeared nor the person for whom he wanted to get appointment from Dr. Monk appeared. In view of these infirmities, it would not be desirable to place implicit reliance on his statement, hence we exclude the evidence of Shafqat Mahmood P.W.5 from consideration.
We may observe here that conviction usually depends upon the quality and not the quantity of the evidence.
' As discussed above, the complainant Nadir Hussain is a truthful witness, conviction can be recorded on the basis of his evidence against the appellant, especially when it is getting full corroboration from the medical as c well as from circumstantial evidence, such as, prompt lodging of Exh.P.D. At Ganga Ram Hospital, Lahore.
' The recovery of Mauser, though assailed by the learned counsel for the appellant on the ground that Aziz-ur-Rehman P.W.6, the only public witness, was the tenant of the complainant, is devoid of force, as there is no evidence on the record to substantiate this contention. No doubt, the recovery of Mauser would not link the appellant to that extent, which would have linked him with the crime, had the crime empties found at the spot, would have matched with the Mauser. Anyhow, it gives corroboration to this extent that the appellant did have the Mauser which was recovered from his house at his instance.
12. In view of the above discussion, we find that the prosecution has proved its case against the appellant beyond reasonable doubt hence this appeal fails on merit.
13. We have given our anxious consideration to this aspect of the case what should be the appropriate sentence in the given circumstances, when neither the motive was proved through direct evidence nor the immediate cause of murder was brought on the record especially in view of the finding of the doctor that there was some scuffle between the deceased and the appellant before the occurrence, which is denied by the complainant. Even the immediate cause of murder remained shrouded in mystery, so while maintaining the conviction of the appellant under section 302, P.P.C. We alter his sentence from death to imprisonment for life. The sentence of fine imposed on the appellant with all consequences is maintained. The sentence of death is not confirmed and the reference is answered in negative.