' JAWAID NAWAZ KHAN GANDAPUR, J.--- 1. Convict-appellant Sher Qadir, faced trial in the Court of Special Judge, Bannu in case registered vide F.I.R. No,752, dated 21-2-1989 at Police Station Bannu City, under the following sections of law:--
(i) Under section 302, P.P.C. For committing the murder of Sher Afghan by firing at him with a pistol.
(ii) Under section 5 of the Explosive Substances Act for keeping and possessing one Russian made hand-grenade for unlawful purpose.
(iii) Under section 13 Arms Ordinance for having in his possession a .12 bore pistol without licence and two live cartridges of the same bore.
2. Brief facts of the case are that Sher Akram complainant (P.W.6) lodged a report with Ghulam Habib, S.H.O., Police Station Bannu City (P.W.9) in the Emergency Room of Civil Hospital, Bannu. The report was recorded by P.W.9 in the shape of Murasila Exh.P.A./1. According to the complainant (P.W.6), on the day of occurrence, he alongwith his brother Sher Afghan (deceased) had gone to Bazar to purchase medicines; that after purchasing the medicines in question they were going back to their house and when they reached near the Chowk of Mir Jani Bangalow, the place of occurrence, Sher Afghan was fired at by Sher Qadir convict-appellant with his pistol, that his brother was hit and fell to the ground, that the accused at that time was also holding, in his hand, something which resembled a bomb. The accused, thereafter decamped from the scene of occurrence.
3. Sher Akram complainant (P.W.6) took his injured brother to the Civil Hospital, Bannu with the help of other people in a Datsun Pick up. Sher Afghan deceased succumbed to his injuries in the hospital on the same day.
4. The motive for the offence was stated to be previous enmity between the parties which had originated from the abduction of the mother of the accused by the brother of the deceased.
5. After the completion of the investigation Sher Qadir convict-appellant was sent up for trial before the Special Judge/Sessions Judge, Bannu. At the conclusion of trial the learned Special Judge found the accused guilty and convicted and sentenced him as under:--
(i) Under section 302, P.P.C. To death, subject to confirmation by the High Court and to pay a fine of Rs,30,000 or in default to suffer six months further R.I. The fine, if recovered, was ordered to be paid to the L.Rs, of Sher Afghan deceased as compensation under section 544-A, Cr.P.C.
(ii) Under section 5 of the Explosive Substances Act to suffer R.I. For seven years.
(iii) Under section 13, Arms Ordinance to suffer R.I. For two years.
6. The pistol and the two cartridges were confiscated to the State.
7. It will not be out of place to mention here that not satisfied with his conviction the convict- appellant had filed an appeal in this Court which was accepted vide this Court's order dated 21-10- 1991, wherein it was held as under:-- "Consequently, we accept this appeal, set aside the conviction and sentences of the appellant on all the charges and remand the case to the Special Court for trial of the appellant on the charge under the Explosive Substances Act, 1908. We further remand the case for trial by Additional Sessions Judge, Bannu on the charge under section 302, P.P.C. We also direct the State that if it deems proper it may submit a challan for the trial of the appellant on the charge under section 13, Arms Ordinance before a competent Court of a Magistrate. The death sentence awarded to the convict-appellant stands not confirmed and the murder reference is consequently dismissed."
8. Sher Akram, the complainant, assailed the findings of this Court before the Honourable Supreme Court of Pakistan and the Supreme Court vide its order, dated 27-2-1994 held as under:-- "For the foregoing reasons the impugned judgment, dated 21-10-1992 of the High Court remanding the case to three forums is set aside, and this . Resultantly the appeal filed by the respondent in the High Court shall be reheard and decided on merits."
9. We have heard Syed Zafar Abbas Zaidi, Advocate, learned counsel for the convict-appellant, Mr. Ejaz Muhammad Khan, Assistant Advocate-General, for the State and Mr. Dost Muhammad Khan, Advocate, on behalf of the complainant, at length.
10. The fate of this case hinges on two points only. Firstly, whether the alleged solitary eye-witness, Sher Akram, complainant, (P.W.6) was present on the scene of occurrence at the relevant time and secondly, as to whether death penalty could be awarded in the circumstances.
11. It is clear that the occurrence took place on 21-12-1989 at 15-30 hours and Sher Akram, complainant (P.W.6) lodged the report at 16-00 hours. In this report, which later formed the basis of the F.I.R., the convict-appellant was mentioned by name. The description of the weapon used for the commission of the offence was also given. The manner in which the occurrence had taken place was clearly stated. Coupled with this the convict-appellant was arrested, though not on the scene of occurrence, by Dil Nawaz Khan, F.C. (P.W.8) and Amal Jan, F.C. (P.W.7) while he was trying to decamp from the scene of occurrence. Both these constables were at that time on beat duty.
P.W.7 and P.W.8 when arrested the convict-appellant recovered one hand-grenade, Russian made, and two live cartridges of .12 bore (Exh.P.R./2). After handing over the arrested accused to the Moharrir of the police station both the said P.Ws. Went to the scene of occurrence and guarded the spot, from where the weapon of offence, i,e,, .12 bore pistol (Exh.P.R./1) was later recovered and taken into possession by the Investigating Officer (P.W.9).
12. The learned counsel for the convict-appellant tried his best to convince us that the complainant (P.W.6) was not present on the scene of occurrence and that this was a case where no eye- witnesses were available to support the prosecution story. He further stated that at best the complainant could be a chance witness and, therefore, his testimony could not be relied upon safely without corroboration from any other independent evidence.
13. On the other hand the learned counsel for the convict-appellant submitted at the Bar that there was no bar for the appellant to have accompanied his brother Sher Afghan for fetching medicines.
He further stated that the complainant was a truthful witness and, therefore, his testimony could be relied upon. Accordingly to the learned counsel for the convict-appellant the occurrence took place near the Chowk of Mir Jani Bungalow wherefrom the complainant took his injured brother to the hospital, where he lodged his report promptly which was reduced into the form of Murasila and later on, on the basis of the same, F.I.R. Exh.P.A. Was registered in the police station, that the complainant had directly charged the convict-appellant for having effectively fired upon the deceased which resulted in his death later on in the hospital. He stated that the two police officials who were on beat duty i,e,, P.W.7 and P.W.8 arrested the accused and recovered a hand-grenade and the two live cartridges of .12 bore from him, that both of them had no enmity, whatsoever, with the accused and nothing could be brought on file in their cross-examination while they were being examined on oath to suggest that they were interested witnesses or were telling lies for one reason or the other. He also drew our attention to the fact that the opinion of the Arms Expert was also in the positive.
14. The complainant, Sher Akram, while appearing as P.W.6 stated in his examination-in-chief that Muhammad Sher, who is the father of the accused, had charged his brother Sher Khitab for the abduction of his wife, that the said case was later on found false, was accordingly cancelled and Muhammad Sher was challaned for giving false information to the police. He also stated that thereafter his brother namely, Sher Jabar was murdered by Muhammad Sher, the father of the accused and one of the uncles of the accused alongwith one Umar Khan, that the father of the accused and his uncle in that case are still absconding, whereas Umar Khan was arrested, tried, convicted and sentenced to life imprisonment, that his appeal has also been dismissed by the High Court, that therefore, the convict-appellant had the motive for murdering the brother of the complainant.
15. When the accused was examined under section 340(2), Cr.P.C. He in his cross-examination, admitted that his father had lodged the report for the kidnapping of his mother by Sher Khitab, the brother of the deceased. He also admitted that the said case was cancelled. He further admitted that the brother of the deceased was murdered in Tanchi Bazar, Bannu City for which his father, his uncle Muhammad Rafiq and one Umar Khan were charged, that only Umar Khan faced trial in that case and was convicted and thereafter his appeal before the High Court also failed. He also admitted that in that case his father and his uncle have absconded and are residing in Mir Ali, North Waziristan. It is further mentioned in his statement that his father is absconding for the last 5/6 years and that he stayed with his father at Mir Ali after he had become an absconder and had settled there. He admitted that it was only two months prior to the occurrence that he came from Mir Ali to Bannu. He also admitted that he was arrested by the two Constables near the jewellery shop situated in Tanchi Bazar, Bannu and that from there he was taken straight to the Police Station, Bannu City. He, however, refuted the suggestion that he had committed the murder of Sher Afghan, deceased.
16. The contention of the complainant as is apparent from his statement while he was examined as P.W.6 and a perusal of the cross-examination of the accused while he was appearing as his own witness under section 340(2), Cr.P.C. Would clearly establish the motive which has been alleged by the complainant for the commission of the crime in question. There is no doubt that the motive is a double-edged weapon, because if there is a motive, then in that case it can prompt the complainant to falsely implicate the accused with the commission of the offence with which he is charged. On the other hand, it can also prompt the accused for committing the offence with which he has been charged. It is for this reason that in cases where there is a motive for the commission of the offence/false implication of an innocent person, then the Courts are bound to look for corroborative evidence. In the case in hand the complainant, after the occurrence, took his injured brother straight to the hospital where he reported the matter to the Police Officer who reduced the same into writing in the form of Murasil a and then sent the same to the police station for registration of the case in the promptly lodged report the accused was directly charged for iiaving committed the offence and it was also alleged that when the accused was decamping from the scene of occurrence, he was holding something in his hand which resembled a bomb, that the accused had committed the murder' with a .12 bore pistol. Two independent witnesses P.W.7 and P.W.8 who had not witnessed the occurrence and had only heard the report of fire shot C arrested the accused alongwith hand-grenade (Russian made) and two live cartridges of .12 bore. Both of them them took the accused, alongwith the recovered hand-grenade and cartridges, to the police station. Thereafter, it was the Investigating Officer who recovered the .12 bore pistol from the scene of occurrence in the presence of other witnesses.
17. In our opinion the evidence produced by the prosecution is quite independent and disinterested and, therefore, their testimony cannot be brushed aside. The circumstantial evidence also corroborates the testimony of the complainant. Accordingly we are of the considered view that the convict-appellant has committed the offences with which he has been charged and was rightly convicted by the learned lower Court. However, keeping in view the motive for which the convict- appellant had committed the murder of the deceased i,e,, to redeem his honour, because his mother was, according to the prosecution, kidnapped by the brother of the deceased.
18. The impugned conviction, dated 7-12-1991 of Sher Qadir/appellant is upheld while the sentence is altered to imprisonment for life and a fine of Rs,10, 000 in default of payment whereof the appellant shall further suffer imprisonment for two years that shall run consecutive to the main sentence. He is also sentenced to pay a compensation of rupees one lac to the heirs of the deceased under section 544-A, Cr.P.C. In default of payment whereof the appellant shall suffer imprisonment for six months in addition to the mode of recovery prescribed in the section itself.
19. His conviction under section 5 of the Explosive Substances Act and under section 13, Arms Ordinance is maintained. All the substantive sentences shall run concurrently except one in default of payment of fine and the other in default of payment of compensation which shall run consecutive to the main sentence as well as consecutive to each other. The appellant, however, shall be given the benefit of his detention under section 382-B, Cr.P.C.
20. The murder reference under section 374, Cr.P.C. Is, however, answered in the negative. The death sentence is not upheld.
Sentence reduced.