' CH. MUHAMMAD ARIF, J.---Through this appeal by leave of the Court, the appellant-Umar Hayat son of Sher Muhammad (31/32) has made a challenge to the upholding of his conviction by the Special Court for Speedy Trials No, VIII, Sargodha constituted under Special Court for Speedy Trials Act, 1987, under section 302, P.P.C. On 17-1-1989 sentencing him to death with a fine of Rs,30,000 or in default of payment thereof to undergo R.I. For five years and directing the payment of Rs,20,000 out of the fine, if recovered, to the heirs of the deceased as compensation under section 544-A, Cr.P.C., by a Division Bench of the Lahore High Court, Lahore through judgment dated 12-10-1992, in Criminal Appeal No,47 of 1989.
2. The prosecution case was initiated by Mukhtar Ali (P.W.6) regarding occurrence having taken place on 14-11-1987 at 10-00 a.m., through Exh.P.D. At Police Station Kotmoman. It was stated in Exh.P.D. That, while armed with a gun, the appellant fired at Muhammad Nawaz-deceased who was sitting at Dara Satiana situated within the area of village Mateela, Tehsil Bhalwal, District Sargodha.
Formal F.I.R., bearing Case No,366 of 1987, was recorded by Atta Muhammad, S.I. On the same date at 11-30 a.m. The distance between the place of occurrence and the Police Station was one mile towards south thereof. First informant is a first cousin of the deceased and the motive alleged in the F.I.R. Exh.P.D. Was that about 23 years prior to the date of occurrence, appellant's father namely, Shera and maternal uncle namely, Manak were murdered in which the father and the paternal uncle of the deceased-Muhammad Nawaz were challaned but acquitted by the Court. In retaliation to the aforereferred murders, appellant committed the murder of Nazir Ahmed, father of Mukhtar Ahmed (P.W.6), about 9 years prior to the present occurrence. He was challaned and, on account of the intervention of the Bratheri, Mukhtar Ahmed accepted the hand of 'Mamonzad'- sister of the appellant for his brother Muhammad Yousaf and affected a compromise with him. The appellant was still not satisfied and sought compensation for the murders of his father and maternal uncle. The complainant-side was not prepared to oblige him and such situation having come about, the latter claimed it to be the motive for the occurrence dated 14-11-1987.
3. Leave grant order dated 21-7-1993, in part, reads thus:- "6. In support of this petition it is contended that the High Court erred in treating Bashir Ahmad (P.W.7) as an independent and disinterested witness. His sister was married to a brother of Fatha who was one of the accused in the case relating to the murders of the petitioner's father and maternal uncle. Apart from that his house was situated 20 miles away from the village where the occurrence took place. He was, thus, a chance witness. In the circumstances, the petitioner ought not to have been convicted on his uncorroborated testimony.
7. The contention raised in support of this petition needs examination. - - -."
4. The prosecution case before the learned Special Court for Speedy Trials No,VIII, Sargodha as also in appeal before the learned Division Bench of the Lahore High Court revolved around the eye- witness account forthcoming from P.Ws. 6 and 7. Their account was found to be supported by the medical evidence consisting of post-mortem report prepared by Dr. Mazhar Rashid (P.W.8) on 14- 11-1987 at 3-30 p.m. Finding a circular lacerated wound 4-1/2 c.m. x 2-1/2 c.m. x going deep on the front and right side of the chest, upper part 2 c.m. Below the right clavicle. P.W.8 had categorically opined that the injury on the chest was sufficient to cause death in the ordinary course of nature by causing severe haemorrhage and shock. The trend of the cross-examination of the eye-witnesses as also the S.I./I0 (P.W.9) Atta Muhammad indicated the defence plea that P.W.7 being a resident of a place situated at a distance of 20 miles away from the place of occurrence and being inimical towards the appellant, is not an eye-witness at all. The second limb of the defence plea which is discernible from the trend of the cross-examiner, relates to the alleged change of place of occurrence by the prosecution.
5. The learned trial Court did not see eye to eye with the defence argument before it for the reasons that the presence of P.W.7 in village Mateela having been occasioned on account of his visit to his sister there and that such fact was not at all disputed by the defence as also that lack of direct enmity between the accused and Bashir Ahmed P.W.7 paved the way for holding him as a truthful witness. As regards the alleged change of place of occurrence, the learned trial Court repelled the same by observing that in that eventuality the prosecution could have "... Shown it at a place owned by them and not to a place owned by the accused and his relatives".
6. The learned Division Bench of the High Court dealt with the pleas of the appellant regarding enmity between the parties and the place of occurrence being what it is, in the following terms:-- "Bashir Ahmad P.W.7 no doubt is resident of a place at a distance of 20 miles away from the place of occurrence but he has offered a satisfactory explanation about his presence in the area. He stayed in the house of her sister in the preceding night and in the morning he met Muhammad Nawaz deceased. It is not disputed by the defence that the sister of P.W.7 is not the resident of area or that he had not visited the house of her sister. His presence at the spot, therefore, cannot be doubted merely for the reason that he is resident of 20 miles away from the place of occurrence. A chance witness is one who happens in the area just for nothing and has no business in the normal course to be there. The position of P.W.7 is not that of the person who could not be expected in the area or had no business or connection to have gone to village Mateela. The presence of P.W.7 at the spot is free from doubt.
' The contention of the learned counsel that there was enmity between the parties and the place of occurrence was the Dera of the appellant, it was therefore, unnatural for the deceased to go to the place of his opponent is also without any force. It is nowhere established on the record that the Dera Satiana was in physical possession and control of appellant at the relevant time, rather it transpires from the facts and circumstances of the case that irrespective of the entries in the revenue record regarding possession of Dera', it was an open Dera to be used commonly with no restriction. If the occurrence took place at some other place outside Dera, then there was no fun to change the place of occurrence taking risk of providing material to the appellant for defence plea for no benefit to the prosecution. Had it been Dera in exclusive possession of the appellant as claimed, there must have been some other family member of the appellant, but the evidence on record does not suggest and indicate any sign of residential Dera of a particular person. However, the claim of the appellant with respect to the ownership and possession of the Dera even if accepted to be correct, the presence of the deceased with P.Ws. At the Dera cannot be denied for simple reason that the earlier enmity had in fact come to an end through compromise between the parties and the deceased could not even think about any evil design of the appellant.
Therefore, it was not unnatural for the deceased to go to the Dera having no doubt in his mind about the previous enmity. The claim of the appellant regarding the possession and control of the Dera rather goes to support the fact that appellant having come to know of the presence of the deceased in the Dera taking benefit of the situation attacked on him. Had the deceased apprehending even a remote possibility of slight damage from appellant, he would not had gone to Dera Satiana."
7. The aforequoted excerpts from the impugned judgment were criticised by Mr. Sheikh Khizar Hayat, learned Senior Advocate to contend that the conclusions reached by the High Court are contrary to the material available on the record. According to the learned counsel, the eye-witness account is not supported by the medical evidence and the later limb of the defence-plea i.e, the alleged change of place of occurrence by the prosecution is substantiated by the fact that the injury on the person of the deceased was admittedly caused by firing from 6-ft. Away but it is not shown to have resulted in the spreading of pellets. In addition to this, the learned counsel made a reference to Ajun Shah v. The State (PLD 1967 SC 185) and Ghulam Abbas v. Mazher Abbas and another (PLD 1991 SC 1059) to contend that in any case the imposition of extreme penalty in this case is not called for as the appellant is entitled to reduction of the sentence from death to imprisonment for life. His plea was that even if private revenge is placed atop the shoulders of the appellant, "... The same by itself should not prevent the Court from doing justice in matter of sentence as was done in the case of Ajun Shah and scores of other cases".
8. Contrarily, Mr. Ch. Muhammad Akram, learned counsel appearing on behalf of the State as also Ch. Asgher Ali, representing the complainant, have strongly controverted the arguments of the learned counsel for the appellant and contended that the conviction as well as sentence in this case are justified and legal.
9. The material on the record has been considered with care. As regards the defence-plea in relation to the eye-witness account coming from the inimical and related sources, suffice it to say that the reasons advanced by the High Court in the impugned judgment in that regard are not open to objection in any measure whatsoever. Bashir Ahmed (P.W.7) had gone to village Mateela to visit his sister there and her residence in the said village is not even so much as disputed by the defence. The fact that he had come to village to pay a visit to his sister from a place which is 20 miles away from it, was rightly held not to be of any help to the defence to dub him as a chance witness. As regards the existence of enmity between the parties and that the place of occurrence being the 'Dera' of the appellant with the result that it was unnatural for the deceased to go to the place of his opponents, the learned Division Bench of the High Court thoroughly considered the material on the record and came to the conclusion that irrespective of the entries in the Revenue Record regarding possession of 'Dara', it was open to common use with no restriction. The prosecution did not stand to gain by changing the place of occurrence, as alleged by defence, as such an effort would tantamount to taking the risk of providing material to the appellant in line with his defence plea which, obviously, will not advance the case of the prosecution a wee bit. It may be further noticed that the earlier enmity between the parties had come to an end and the deceased could not even think about any mischief coming to him in the event of his going there. The learned counsel for the State and the complainant were on solid ground in contending that deceased would not have gone to 'Dera Satiana' if he had apprehended any possibility of damage to him at the hands of the appellant.
10. Even the locale of the injury on the body of the deceased, resulting from the shot by the appellant in the presence of the eye-witnesses, has not been shown to be out of proportion to the manner of its coming about, as detailed in the first information report which was promptly lodged at the Police Station on the very day of occurrence within half an hour thereof. In this view of the matter, the argument that a shot fired from 6-ft. Away from the target will result in spreading the pellets, is of no help to the appellant. Moreso, when the defence did not cross-examine Dr. Mazhar Rashid (P.W.8) with a view to bringing on the record any material in support of the plea of fore- referred,
11. There is no cavil with the proposition that in the matter of reduction of sentence the factors detailed in the precedent cases should be considered. The cases of Ajun Shah and Ghulam Abbas (supra) proceed on their own facts i.e,, sans any intervening compromise between the parties therein. Here, the compromise arrived at between the parties had the effect of putting an end to the hostilities between them. It was not the case of the defence that no compromise had taken place and/or that the hostilities between the parties were current. In fact the case of prosecution was that after his acquittal as a result of the compromise, the appellant claimed/asked for compensation for the murder of his maternal uncle Manak and was opposing "Rukhsaty" of the daughter of Fateh Muhammad, another maternal uncle of his. The respective pleas of the prosecution and the defence are reflected in Question No,4 and Answer thereto by the appellant during his examination under section 342, Cr.P.C., which reads thus:-- "Question No,4: Is it a fact that as a result of the abovementioned compromise the Nikkah of the daughter of Fateh Muhammad your maternal uncle, was performed with Muhammad Yousaf, the brother of Mukhtar Ahmad complainant but the "Rukhsaty" had not yet taken place. After your acquittal from the murder case, you claimed compensation for the murder of your maternal uncle Manak and was opposing the "Rukhsaty" of the daughter of your maternal uncle Fateh Muhammad?
' Answer: No, After the present occurrence the above girl was married to the brother of the complainant with full ceremonies and my entire family participated therein."
' This Answer, to say the least, advances the case of the prosecution that the appellant was opposed to the "Rukhsaty" of the daughter of his maternal uncle Fateh Muhammad which took place after this occurrence when he was in jail. Looked at from this angle, the reliance on the cases of Ajun Shah and Ghulam Abbas (supra) cannot but be held to be misplaced.
12. Moreover, the raising of a 'Lalkara' by the appellant to the effect that 'he has come to avenge the murders' was succeeded by another that 'he has taken the revenge of the second murder', clearly stand in his way of claiming reduction in the sentence even on the ground that the beginning of this occurrence is shrouded in mystery. The exaction of the capital punishment in this case has not been found to be suffering from any taint whatsoever.
13. For all that has gone before, the instant appeal fails and is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.