1. ZAFAR PASHA CHAUDHRY, J.---This judgment will dispose of Murder Reference No,258/93 as well as Criminal Appeal No,93/93 directed against the judgment dated 7-3-1993 passed by Ch. Sarfraz Ahmad Tarar, Addl. Sessions Judge, Sahiwal, whereby the appellant Intizar Hussain was convicted under section 302-B P.P.C. and awarded sentence of death as Tazeer, with a fine of Rs,10,000 in default thereof to undergo R.I. for one year.
2. The prosecution case in brief as disclosed from the statement of Imam Ali Shah P.W.7 made by him through F.I.R. Exh. P.H. is that on 13-9-1991 at 4.00 p.m. he was going to Chak Thathai alongwith his son Tahir Hussain (deceased), Jan Muhammad Takreem Hussain P.W.B. When they reached near water course in Chak No,36/E.B. they were confronted by Intizar Hussain appellant who was sitting in ambush armed with 12 bore pistol. He raised Lalkara that he would not spare Tahir Hussain as he had been interfering in his Bussiness of Sale of Narcotics etc. Immediately, thereafter he fired a shot from his pistol hitting Tahir Husain on the right side of his nose. Tahir Hussain fell down. The complainant and his companions tried to overpower the appellant but he threatened, on which they had to retreat. The appellant filed away alongwith his pistol. Tahir Husain deceased was carried to Civil Hospital, Arifwala by a Tractor trolley who was admitted in the hospital and Medico Legal Report was obtained. The occurrence was witnessed by the complainant P.W.7, Takreem Hussain P.W.8 and Jan Muhammad.
2. As regards motive it was stated that the deceased had admonished the appellant who used to deal in Narcotics. The appellant took it seriously ill and thereafter by arming himself with fire arm committed the murder of Tahir Hussain.
3. 3.The F.I.R. was recorded by Muhammad Mumtaz S.I./S.H.O. P.W.9. Thereafter he visited the hospital but the injured Tahir Hussain was not in a position to make a statement. On account of darkness due to late hours, the Investigating Officer could not visit the place of occurrence, therefore, he visited the same on the next day i,e, 14-9-1991. He secured blood stained earth Exh.P.D. prepared rough site plan Exh.P.I. and recorded the statements of six P. Ws at the spot. In the meanwhile, injured Tahir Hussain succumbed to the injuries and expired in the hospital. Section 324 P.P.C. was, therefore, substituted by section 302, P.P.C. He prepared injury statement Exh. P.G. and inquest report Exh. P.K. and the dead body was despatched to the mortuary for post mortem examination.
4. He got prepared scaled site plan from the Patwari in triplicate Exh. P.B, PB/1 and P.B/2. The appellant was arrested on 23-9-1991 and on 29-9-1991 he got recovered pistol P-4, 12 bore which was secured through recovery memo Exh. P.C. After completing the necessary investigation and other formalities the appellant was challaned and sent up to face trial.
5. 4.Since Dr. Tanveer Ahmed who conducted the post mortem examination and prepared MLR Exh.
6. P.F. as well as post mortem report Exh. P.E. has left for abroad, therefore, both the documents were identified to be in the handwriting of the said Doctor by P.W.5 Abdul Jabbar dispensar. In MLR Exh.
7. P.F. a fire arm injury 2 C.M. x 1 C.M. x going deep blind on the right side of root of nose was observed.
8. Subsequently during post mortem examination, fhe same injury was noted and described. It was a wound of entrance which had perforated scalp and skull. Membranes or brain were also perforated and cogested. One pellet from inside of brain was removed. The injury had been caused by fire arm and was sufficient to cause death/ time in between injury and death was stated to be 10 to 15 hours and between death and post mortem was 8 to 12 hours.
9. 5.The prosecution examined ten witnesses in order to establish its case against the appellant P.W.1 Muhammad Shamoon Constable is a formal witness. P.W.2 Umar Din Patwari prepared site plan in scale of 40 Karams to an inch. P.W.3 Muhammad Yar attested the recovery of pistol P.4 effected at the instance of the appellant from an iron box in his house. P.W.4 Ghulam Hussain identified the dead body of the deceased and attested some formal recoveries. P.W.6 Muhammad Zafar constable is a formal witness. P.W.7 Imam Ali Shah complainant father of the deceased, and P.W.8 Takreem Hussain have furnished eye witness account of the occurrence. Both of them made statements consistent with the narration of fact in the F.I.R. Exh. P.H. Both the witnesses corroborated each other on all the material points. They were subject to lengthy cross- examination, but nothing favourable to the appellant for damaging the prosecution case could be elicited. P.W.9 Muhammad Mumtaz S.I./S.H.O. conducted the investigation, details of which have already been noted and referred above. P.W.10 Khurshid Altaf is a clerk in D.H.Q. Hospital. He produced Indoor and Outdoor registers as well as Admission Register and Death Register. The relevant entries regarding admission of Tahir Hussain and subsequently his death are recorded.
10. Although examination of this witnesses was not very essential yet out of abundant precautions, the prosecution examined him alongwith the record.
11. 6.After examining the aforesaid witnesses the learned D.D.A. tendered in evidence the report of Chemical Examiner Exh. P.L. as well as Serologist Exh. P.M. and with that closed the case of the prosecution.
12. 7.The appellant was examined under section 342 Cr.P.C. All the incriminating evidence as well as circumstances were put to him. He denied the allegations as well as recovery. In answer to Question No,8, he made the following reply:- "I have been falsely involved in this case by the complainant and the police. Tahir Hussain was a Notorious Narcotics dealer. He was in league with the police. He was also a bad character and had been involved in many cases. He had many enemies. His murder was an unwitnessed murder. The Police after due deliberation with the complainant and the P.Ws falsely implicated me in the present case".
13. 8.The learned counsel for the appellant after going through the statements of the witnesses especially eye witnesses straight away conceded that he would riot contest the conviction of the appellant, however, he would make submissions with regard to quantum of sentence. We however, have gone through the evidence on the record with a view to ascertain whether the prosecution had proved the case against the appellant beyond any doubt. The eye witnesses have no enmity against the appellant, as such they have no reason to falsely implicate him in the case entailing capital punishment. It has, however, been suggested that the presence of eye witnesses at the place of occurrence did not appear probable. The witnesses have reasonably explained their presence at the place of occurrence and the fact that the injured was immediately removed to the hospital clearly indicate that the occurrence could not be unwitnessed. Had the same not been witnessed then there was no possibility of the injured to have been carried to the hospital. The fact that he was carried to the hospital and was examined leaves no doubt that eye witnesses were present at the place of occurrence. Since the eye witnesses had seen the assailant, there can be no reason on earth to have spared the real culprit and substituted the appellant against whom there was no serious enmity or grievance. Apart from that the witnesses have successfully stood the test of cross-examination. After going through the examination in chief and cross-examination, one is convinced that they had seen the occurrence, otherwise, they could not have explained the occurrence in minor details as was done by them. The learned trial Judge, therefore, has rightly relied upon their testimony. Although recovery of pistol, as observed, is of no much help to the prosecution but the evidence of the witnesses supported by the medical evidence is sufficient to place safe reliance on their testimony. The conviction, therefore, is unexceptionable.
9. As regards the quantum of sentence the learned counsel has argued that the prosecution has not been able to establish motive. Apart from the eye witnesses statements there is nothing on the file to show that the appellant in fact dealt in narcotics or that he was admonished previously so severely by the deceased that murder could be committed on account of the said insult or admonishing. It has been argued with vehemence that on the contrary, it has been admitted by the complainant himself that the deceased had criminal antecedents and also involved in the Business of Narcotics etc. Reference has been made to the statement of P.W.7 Imam Ali Shah in para No,3 at page 30 of the paper book, wherein he stated as follows:-- "I do not remember if a case of dacoity was registered against my son Tahir Hussain at P.S. Malka in the year 1982-83. Again said it is correct that a case was registered against my son of dacoity due to party faction. It is correct that Tahir Hussain Shah deceased was challaned in a case of narcotic.
14. Volunteered it was a false case. It is correct that a case of narcotic was registered against my son Tahir Hussain Shah deceased at P.S. Mailsi Distt. Vehari. It is correct that no case of narcotic was ever registered against Intizar Hussain."
15. On the basis of the admissions made by the P.W., it is hard to believe that the motive as set up by the prosecution is correct, rather it transpires that the deceased himself indulged in criminal activities and also was required in a narcotic case. With this background in mind we are persuaded that the award of capital punishment does not seem to be proper and justified. If the deceased himself indulged in criminal activities and also in narcotic then as to what preceeded the commission of murder remains shrouded in mystery. Even if it is believed as deposed by the eye witnesses that the appellant dealt in narcotic then the natural influence would be that both, the appellant as well as deceased has similar antecedents and the possibility that some dispute might have ensued between them immediately before the occurrence cannot be ruled out. The prosecution witnesses are silent on the same. As already observed the prosecution has not been able to establish the motive and coupled with the fact that igniting cause is also not known, the imposition of sentence of death is not called for. We, therefore, dismiss the appeal and uphold the conviction of the appellant under section 302-B, P.P.C. However, sentence of death is converted to that of imprisonment for life. The fine of Rs,10,000 as imposed by the learned trial Judge is upheld and maintained. On realisation, the same would be paid to the heirs of the deceased as compensation. In default thereof to undergo R.I. for one year. The benefit under section 382-B, Cr.P.C. is extended.