' This appeal is directed against the judgment, dated 26-9-1991 passed by the learned Additional Sessions Judge, Bhalwal, District Sargodha whereby he convicted the appellant under section 304- A, P.P.C. And sentenced to imprisonment for 10 years' R.I. With a fine of Rs,25,000, in default of payment of fine to further undergo three years' R.I. The fine, if realized, Rs,20,000 was ordered to be paid to the legal heirs of the deceased as compensation and benefit of section 382-B, Cr. ?.C. Was also extended to him.
2. Briefly the facts of the prosecution case as narrated in the F.I.R. Are that on 9-3-1990 at about 1- 00 p.m. Ghulam Hussain, Nazir Ahmad, Muhammad Yar P.Ws. And Riaz Ahmad deceased were sitting at their Dera. Manzoor Hussain accused armed with rifle .7 mm came there on a motor- cycle. He raising Lalkara that Riaz Ahmad deceased would not go alive fired at his right cheek. On receiving the fire shot, the deceased fell down.
3. Motive for the commission of offence was that the appellant/convict suspected illicit intimacy of his mother with Riaz Ahmad deceased.
4. The investigation in this case was originally conducted by P.W.10 Saleem Ullah, S.-I. And the challan under section 302, P.P.C. Was submitted by him; after the submission of the challan, the case was re-investigated on the application of the appellant/accused by Sheikh Zia-ul-Haq, D.S.P., Bhalwal D.W.1, who disbelieved the motive set up for the F.I.R. And directed to submit supplementary challan under section 304, P.P.C. The supplementary challan under section 304, P.P.C. Was placed before the learned Magistrate Section 30, Bhalwal for trial; later on both the challan pertaining to the accused in hand were placed before the learned trial Judge for trial of the accused. The prosecution examined as many as 10 witnesses to prove its case. Doctor Malik Alam Khan P.W.10 conducted post-mortem on the dead body of Riaz deceased and found a fire-arm wound 2-1/2 c.m. x 1/2 c.m. Oval in shape inflamed with inverted margin on right side of cheek. In the opinion of the doctor, the injury was ante-mortem and was caused by fire-arm and it was sufficient to cause death in the ordinary course of nature. P.W.3 Ghulam Hussain complainant and P.W.4 Muhammad Yar appeared in support of ocular version of the prosecution. P.W.5 is a recovery witness to the rifle Exh.P.1 and Exh.P.2/1-4. P.W.10 Saleem Ullah Khan, S.-I conducted the investigation and challaned the accused under section 302, P.P.C. The other P.Ws. Are of formal nature. The prosecution gave up Nazir, Khyzar Hayat and Naib Sultan P.Ws. As unnecessary and tendered in evidence report of the Chemical Examiner Exh.P.J.
5. The appellant when examined under section 342, Cr.P.C. Denied the prosecution allegation and in answer to question "Why this case against you" stated as under:-- "An accidental fire has been twisted into intentional fire on account of greed on the part of the complainant to fetch money and I have also been falsely implicated with a twisted version under the influence of Naib Sultan P.W. With whose family we had political rivalry."
6. However, he refused to appear as his own witness under section 340(2), Cr.P.C. And produced D.W.1 Ch. Zia-ul-Haq, D.S.P. Who had re-investigated the case and had directed to prepare final report under section 304, P.P.C. And D.W.2 Karim Nawaz.
7. The learned trial Judge as it was a case of two versions, one version advanced by the prosecution and the other version given by the appellant/convict as defence plea, applying the solitary principle in such situation for the just decision of the case to be the case in juxtaposition, came to conclusion that the motive set up in the F.I.R. Had not been proved by the prosecution, relied on the defence version held that the deceased was hit by an accidental fire and the defence version put forward by the accused was reasonably possible.
8. Learned counsel for the appellant/convict contended that the motive was disbelieved; the eye- witnesses being inter se related or interested witnesses; the plea of appellant that the deceased was accidentally hit was accepted by the trial Court, hence the sentence awarded is severe and under mitigating circumstances be acquitted.
9. On the other hand, learned State Counsel opposed the arguments of the learned counsel and submitted that the learned trial Judge has already taken lenient view.
10. The only question which require determination is whether the death had been caused accidentally or as an act of assault mounted by the appellant, as noticed the appellant admits the death of Riaz Ahmad deceased at his hand. I am constrained to observe that the observations made by the learned trial Court are based on surmises, conjectures and assumptions. It is well- settled principle of law that the Judge should not incorporate his observation in the judgment as the observations cannot take the place of evidence. It is the duty of a Court to present the true picture of the case and where important criticism are not even mentioned in the decision, the judgment ceases to be a judicial determination as it persists only an incomplete picture as the paramount duty of the Court is to separate grain from the chaff on a careful and scrupulous analysis and if that is not possible, then give the benefit of it to the accused lest the innocent be not convicted.
11. It is worth mentioning that the occurrence took place on 9-3-1990 while the appellant accused was arrested on 27-3-1990 with rifle .7 mm. The Investigating Officer P.W.10 Saleem Ullah stated in cross-examination that so many parsons from the appellant/accused side appeared before him and had stated that the deceased was hit accidentally and he disbelieved their statements but afterwards in the cross-examination conceded that he accepted the defence version put forward by the accused but chillaxed the accused on the charge of murder because the P.Ws. Insisted on their version while the D.W.1 Sheikh Ziaul-Haq, D.S.P. Stated that in re-investigation he got recorded the statement of P.W.3 complainant who was not in a position to substantiate the motive asserted in the F.I.R. Hence on the basis of his statement he had directed to amend the offence. However, he conceded that the complainant and the eye-witnesses appeared before all the Investigating Officers of the case and made their statements i,e, supported the version of the prosecution including the motive. D.W.2 Karim Nawaz, Inspector conceded in cross-examination that he had challaned the accused on the charge of murder on the basis of statements of the though he had recorded his opinion that the motive was incorrect.
12. P.W.3 Ghulam Hussain complainant was suggested in the cross-examination by the counsel for the appellant that the rifle which had been recovered at the instance of the accused actually belonged to the P.W. And that it was lying loaded on a cot on the place of occurrence; the accused in order to sit on the cot picked up the rifle to place it aside and in that process the rifle went off by accident and the deceased hit accidentally which he denied to be incorrect. It is also worth consideration that P.W.3 Ghulam Hussain during cross-examination voluntarily stated that the police dishonestly favoured the accused under the influence of Manazar Ali Ranjha, Deputy Speaker, Punjab. Similarly, in cross-examination Noor Muhammad P.W., a recovery witness was put a suggestion that the rifle in question allegedly recovered from the accused belonging to Ghulam Hussain P.W. And that it was planted against the accused; while the accused in his statement under section 342, Cr.P.C. Admittedly stated as under:-- "The licensed .7 mm rifle of my maternal-uncle Ghulam Raza was in my possession at that time and was hanging against my shoulder. After urinating when I was getting up, my finger accidentally touched the triger of the rifle which went off and accidentally hit the deceased. He was my friend and I have no motive to kill him."
13. I have carefully examined the defence plea. I am afraid, there is no material available on the record to justify the plea adopted by the appellant/accused. In view of the above facts and circumstances, the story canvassed by the appellant and his explanation of the weapon is not reasonable and is unreliable because firstly the suggestion was made that the rifle belonged to P.W.3 and was lying loaded at the cot at the place of occurrence. Secondly, the trigger of .7 mm can in no manner go off by merely touching by a finger as it needs firstly loading and then sufficient force by the finger is required to trigger hit. The defence plea seems to be an afterthought and not supported by the evidence hence is rejected.
13. As against this, the prosecution is equipped with evidence of Ghulam Hussain P.W.3, Muhammad Yar P.W.4 and Noor Muhammad P.W.S. They may be closely related to the deceased but it was not denied that they have no animosity whatsoever against the appellant/convict and had no reason to falsely twist the occurrence particularly to allege doubt about the illicit relations of the deceased with the mother of the appellant when admittedly the deceased had friendly relations with the accused. It is well-settled principle of law that mere relationship of a witness with the deceased would not per se be good enough to label him with the interestedness unless the parties have previous background of hostility. The ocular testimony thus inspires confidence and no reason exists on record to justify alteration of the appellant/convict from section 302, P.P.C. To section 304- A, P.P.C. Even otherwise, the motive which has been disbelieved is not an element essential to prove the guilt of an accused. It was observed by their lordships in case Habib Ullah and others v. The State PLD 1969 SC 127 as under:-- "In ordinary human conduct where killing takes place by design, it is not without a motive strong or weak. This is not to say that murders are not committed wantonly without any motive whatsoever.
Motiveless murders do occur owing to made or reckless acts of inhuman nature. Some times a motive lies mysteriously hidden in the mind of the killer with no means to dig it out on the surface.
But it may be stated as a rule of prudence in judging human conduct that where a motive is alleged by the prosecution which is found to be false, it becomes all the more necessary to scrutinize the credentials of the witnesses who by their evidence direct or indirect speak about the guilt of an accused person on the premises of a false motive."
14. In these circumstances, I am of the opinion that the appellant had the support of Manazir Ali Ranjha the then Deputy Speaker, Provincial Assembly, Punjab due to which the attitude of the Investigating Officers from the beginning till the re-investigation and then at the stage of trial remained impartial and made concession to the accused and avoided to bring evidence on record regarding the motive perhaps only to save the modesty of the family. Even otherwise, no body could be expected to come forward to appear as a witness in such like cases as it is a common knowledge that people particularly in rural areas refrain to associates themselves from such investigations.
15. In this case, the ocular evidence furnished by P.W.3 and P.W.4 is fully corroborated by the medical evidence, the recovery of gun and even the statement made by the appellant. In view of these circumstances, there is no doubt in my mind that the prosecution version stands proved beyond any shadow of doubt against the appellant and the defence plea is an afterthought.
16. However, as it was prosecution's own case that the appellant suspected the deceased of having illicit relations with her mother, I am not inclined to sentence the appellant with normal sentence provided for section 302, P.P.C. The appellant being a young man of 20 years of age, the fact may not be true that her mother had illicit relations with the deceased who was his personal friend might have suspected and thus appears to have acted in furtherance of family honor. It is manifest that the motive remained shrouded in mystery, in view of the observations made by their Lordships in case Riasat Ali v. The State PLD 1991 SC 397 that:-- "Where motive remained shrouded in mystery can rightly give advantage to the accused."
Taking into account all the facts and the dictum laid down by the Supreme Court, I feel inclined to reduce sentence from 10 years to five years which will meet the ends of justice. The appellant is a young man. There is no evidence that he possessed sufficient property to pay a sum of Rs,20,000 as compensation. The same is, therefore, also reduced to Rs,15,000. In default of payment of which he shall further suffer six months' S.I. The fine, if recovered, shall be paid to the legal heirs of the deceased as compensation.
Sentence reduced.