' MUHAMMAD NAWAZ ABBASI, J.--- The appellant, Nadeem Alam son of Mahboob Alam, having tried for the charge under section 302, P.P.C. In a case registered against him for the allegation of committing murder of Atta Muhammad son of Amir Khan, aged about 45 years, at 7-15 p.m. On 1-1- 1992, near Fazal-e-Haq Chowk within the area of Police Station Kohsar, Islamabad, was convicted and sentenced to death under section 302, P.P.C. By the learned Additional Sessions Judge, Islamabad, through judgment, dated 22-4-1993. He was also ordered to pay Rs,10,000 as compensation to the legal heirs of the deceased.
2. The appellant being aggrieved of his conviction and sentence has filed this appeal, whereas learned Additional Sessions Judge has sent a reference bearing Murder Reference No,150 of 1993, for confirmation of the death penalty awarded by him to the appellant. We would like to disposed of both the matters through this single judgment.
3. Precisely, the prosecution case as contained in the F.I.R. (Exh.P.D.) lodged on the basis of statement of Muhammad Banaras (P.W.7) a Foot Constable of Traffic Police, is that:-- "He was present on his duty at Kalsoom Plaza Chowk, Islamabad, when a Taxi bearing No,SWA- 3554 coming from China Chowk side suddenl-ytook turn towards right and simultaneously a fire shot was heard by him from inside the taxi, which becoming out of control run on the greenbelt and he while reaching near a taxi, found the driver lying on his seat in injured condition and in the meanwhile, a person coming out of the taxi holding a pistol in his hand started running towards Kulsoom Plaza. The complainant along with Muhammad Sadiq (P.W.8), another police constable, who was present in the nearby, while chasing the said person apprehended him with the pistol near Nafedic Cinema, who disclosed his name as Nadeem Alam son of Mahmood Alam. Malik Islam, S.H.O. Police Station Kohsar was informed about the incident through wireless control, who on reaching at the spot recorded the statement of Muhammad Banaras (P.W.7) and took into custody the appellant along with the pistol at the spot."
4. The prosecution produced as many as 16 witnesses in order to prove the charge against the appellant. However, the material witnesses in the present case are Muhammad Banaras (P.W.7) and Muhammad Sadiq (P.W.8), the police constables, who have witnessed the incident while performing the traffic duty near the place of occurrence and also apprehended the appellant with pistol at some distance from the place of occurrence through chase and produced him before the S.H.O. At the spot. Nazar Hussain (P.W.9) is another eye-witness, who deposed that the occurrence took place within his sight and that the police constables through chase arrested the appellant at some distance from the place of occurrence. He further deposed that the deceased was immediately taken to Poly Clinic Hospital through a car of a passerby. Muhammad Afzal (P.W.10), a police constable, witnessed the recovery of magazine (Exh.P.12) containing three live bullets (Exh.P.13/1-3) as well as some other articles as a result of the personal search of the accused at the time of his arrest. Muhammad Islam, Inspector (P.W.15), while reaching the spot recorded the statement of Muhammad Banaras (P.W.7) and took into possession the blood-stained cover of the driving seat of the taxi, led bullet (Exh.P.25), one empty, the registration book (Exh.P.27), driving license of the deceased (Exh.P.28) and the key of the taxi. He also recovered pistol (Exh.P.21) on the potation of the accused from a place in front of Dossal Plaza near a pine tree and one live cartridge (P.23) as well as the magazine containing two live cartridges (Exh.P.22/1-2), which were taken into possession through memo. Exh.P.K. He also prepared a separate challah under section 13 of the West Pakistan Arms Ordinance, XX of 1965. Thereafter, he proceeded to the Poly Clinic, where he prepared the injury statement and inquest report 'of the deceased and handed over the dead body to the constable for post-mortem examination. He also took into possession the last-worn clothes of the deceased and after recording the statements of the witnesses and completing the formal investigation submitted the challah against the appellant.
5. The post-mortem examination of the deceased was conducted by Dr. Muhammad Arshad Khan (P.W.11) on 2-1-1992 at 2-00 p.m., who observed the following injuries on her person:--
(1) A wound with three black sutures intact in the mid of lower portion of the occipital. Wound in area of half an inch.
(2) A wound with three black sutures intact right side of the forehead.
' As per opinion of the doctor, the death was caused due to the extensive damage to the brain as a result of the injuries, which were sufficient to cause death in the ordinary course of nature. The ante-mortem fire-arm injuries resulted in immediate death and the probable duration between death and postmortem was 24 hours.
6. The deceased in injured condition was medically examined by Dr. Khurram Ali (P.W.14), who traced the same injuries as have been found ift the post-mortem examination, therefore, there is no need to repeat the same. The Serologist's Report (Exh.P.X.) was produced by Mst. Sakhia Sakha Ullah (P.W.16). The Chemical Examiner's Report (Exh.P.Y.) and Forensic Science Laboratory's Report (Exh.P.Z.) were also placed on record as corroborative evidence.
7. The accused in his statement under section 342, Cr.P.C. Denying the allegations pleaded innocence. He, however, has made answer to question No,13 as under:-- "In fact it was a blind murder, the deceased was an employee of Intelligence Bureau. All the P.Ws.
Except one are police officials. I was a stranger. There being no clue for the murder, as having not been witnessed by anybody, the police falsely involved me in this case as I was a stranger and the police did not like that such murder may remain untraced. Even the witness from the public was falsely introduced by the police as being friend of the deceased. Moreover, Nazar P.W. Used to reside in the house of the deceased and now Nazar is driving the Taxi of the deceased. I am innocent."
8. The trial Court after evaluating the evidence and finding the appellant guilty of the charge convicted him in the manner as stated above.
9. Learned counsel for the appellant contended that the occurrence having taken place during the dark hours of the night i,e, at about 7-15 p.m. In the month of January, 1992, the prosecution has not brought on record any plausible evidence to show that sufficient light was available at the spot to identify the appellant and further that the appellant having arrested at a reasonable distance from the place of occurrence the possibility of substitution cannot be ruled out. He, however, laid much stress on the point that the deceased and the appellant being stranger to each other, what prompted the appellant in the taxi suddenly which resulted in the sad incident is not known, therefore, the circumstance under which the occurrence took place being shrouded in mystery, the capital punishment was not justified.
10. Conversely, the learned counsel for the State argued that the appellant without any excuse and justification taking life of an innocent person on the road in the busy area had demonstrated an act of desperation and, therefore, does not deserve any leniency in the matter of sentence.
11. We have heard the learned counsel for the appellant as well as the State at length and also perused the record with their assistance. This unfortunate motiveless incident took place at a public place. The prosecution evidence brought on record does not show as to whether the deceased and the appellant have some acquaintance with each other or the appellant a stranger to the deceased hiring the taxi while travelling with the deceased as passenger committed his murder for some personal reason or consideration. The reason behind the occurrence was only known either by the deceased or the appellant. Thus, the motive and the reason in the background in the given circumstances cannot possibly be guessed. The eye-witnesses in the present case are entirely strangers to the deceased as well as the appellant. The two police constables,: who being on duty were present near the place of occurrence are the natural witnesses. Nazar Hussain P.W.3 while passing on the record in a vehicle noticing the occurrence stopped there and witnessed the scene. He may be technically a chance witness, but being an entirely independent person, while passing through the road witnessed the occurrence. Therefore, his evidence cannot be excluded from the consideration for the reason of his being a stranger to the parties as a chance witness.
We may observe that a person at a public place is not a chance witness.
12. A single fire-arm injury having found on the person of the deceased in the medical as well as in post-mortem examination, the ocular account is supported by the medical evidence. The arrest of the appellant with pistol near at the spot and the recovery of empty from inside the taxi, which as per report of the Fire-arm Expert we found to have been fired from the pistol recovered from the appellant, is a strong corroboratory evidence in proof of the allegation against the appellant, therefore, any possibility of substitution as contended by the learned counsel is ruled out. We, therefore, having examined the evidence are of the considered view that there can be no exception to the finding of guilt given by the trial Court. Consequently, the appeal fails.
13. However, considering the question of 'sentence, we visualizing the possible reason behind the occurrence have not been able to reach a definite conclusion as to whether the appellant, had some enmity with the deceased or having the motive either to take away the taxi or to remove the cash or some valuable articles from the deceased committed the crime. It is also not known whether the appellant and the deceased were known to each other prior to the occurrence or they were strangers. The appellant a boy of 22 years after making one shot at the deceased a man of 45 years of age run away from the spot. What happened in the taxi and what prompted the appellant for the act he did, remained a secret between him and the deceased.
14. Be that as it may, the occurrence having taken place under mysterious circumstances, which provided enough mitigation in favour of the appellant for lesser penalty. We, therefore, while altering the sentence of death into life imprisonment and maintaining the order of payment of compensation, dismiss this appeal. The appellant will be entitled to the benefit of section 382-B, Cr.P.C. Murder Reference is ahswered in the negative.
Sentence reduced.