' SH. GHULAM SARWAR, J.---Rusume of prosecution story as un folded in F.I.R. Exh.PJ, in brief, is that on 27-3-1991 at about 12-30 p.m. Complainant Shahbaz Alam, his nephew Faheem aged 10/11 years and his daughter Sidra Shahbaz 6/7 years old were standing at the outer gate of their house, situated in street No,3, Mohallah Muhammadpura, Faisalabad. All of a sudden appellant Nafees Ahmad son of Muhammad Rafique emerged from his house, in the same street, with a .30 bore pistol and raised lalkara to avenge non-payment of "Jagga Tax" by the complainant and would not spare his children. He then fired, which hit Faheem on his temporal region and part of right side of his ear and he fell down on the ground Second shot hit Sidra on her left jaw and she too fell down.
The third shot, however, aimed at the complainant, missed the target. Alarm raised by the complainant attracted Zahid Pervaiz and Muhammad Shamim, who witnessed the occurrence and tried to apprehend Nafees Ahmad appellant, who, however, decamped hurling threats of dire consequences.
2. Both the injured were removed to Civil Hospital, Faisalabad, where, Faheem expired on 28-3-1991 and provisions of section 302, P.P.C. Were accordingly added.
3. Motive behind occurrence succinctly was the quarrel of 5/6/ days ago over demand of "Jagga Tax" from the complainant by the appellant.
4. After recording F.I.R. Exh.PJ, which, of course, set the law into motion. Muhammad Razzaq, Sub- Inspector proceeded to the place of occurrence prepared rough site plan Exh.PL, collected blood- stained earth from there, made it into a sealed parcel and took the same into possession vide memo, Exh.PK, Statements under section 161, Cr.P.C. Of P.Ws. Zahid Pervaiz and Muhammad Shamim were taken down.
5. On information of expiry/demise of Faheem in the hospital on next day i.e, 28-3-1991, he amended the offence into section 302, P.P.C. On the same day, he went to hospital where dead- body of Faheem was despatched to morgue for autopsy under the escort of Shaukat Ali Constable after preparing injury statement Exh.PC/1, and inquest report Exh.PH. Last worn clothes, bloodstained shirt P1, Shalwar P2 and one sealed phial containing led, produced by Shaukal Ali Constable, were secured by means of memo. Exh.PB duly attested by Ghafoor, Ramzan and Shaukat Ali P.Ws. Site plans Exh.PA and Exh.PA/1 were got prepared from Aurangzeb Draftsman.
Statement of Sidra Shahbaz was also recorded. Sealed parcel containing blood stained earth was duly deposited with Khalid Akhtar Moharrir on 27-3-1991 for owned transmission to the office of Chemical Examiner.
6. Muhammad Sadiq P.W.12, Inspector/S.H.O. Arrested Nafees Ahmad appellant from Narwala Chowk on 31-7-1991, recovered 30 bore pistol P-3 alongwith 8 cartridges P-4/1-8 and 50 packets of heroin P-5/1-50 on his search and took the same into possession vide memo. Exh.PE. He also prepared site plan Exh.PE/1 of place of recovery.
7. Upon completion of investigation final report under section 173, Cr.P.C. Was submitted against the appellant, who pleaded not guilty to the charge under section 302/324, P.P.0 and claimed trial.
8. P.W.1 Aurangzeb Draftsman prepared site plans Exh.PA and Exh.PA/1 of place of occurrence, Sealed parcel containing blood-stained earth was deposited with Khalid Akhtar, Moharrir/Head Constable on 27-3-1991. Besides producing last worn clothes of deceased, Shaukat Ali Constable P.W.3, transmitted said parcel to the office of Chemical Examiner, Muhammad Ramzan P.W.4 and Ghulam Hassan P.W.6 are recovery witnesses. Dead-body of Faheem was also identified by Muhammad Ramzan P.W.4, at the time of Postmortem Examination. P.W.5, Dr. Tariq Saleem and P.W.7, Dr. Altaf Pervaiz Qasim, provided medical evidence. As P.W.8, Shabaz Alam complainant reiterated and affirmed his version embodied in Exh.PJ, P.W.9 Sidra Shahbaz and P.W.10 Muhammad Shamim Furnished ocular account of occurrence, Various steps of investigations were enumerated by P.W.11 and P.W.12.
9. While examined under section 342, Cr.P.C. Appellant denied all the incriminating circumstances figuring against him in prosecution evidence and described and explained the happening of the occurrence in the following way:-- ' "I did not make any demand nor did I make any fire on Faheem and Sidra or Shahbaz Alam. As a matter of fact on the day of occurrence, I was standing in the street near the chowk and Zahid Parvaiz P.W., came in a car rashly and negligently driving it. The car was about to hit me whereupon I asked Pervaiz not to drive in such a way, Zahid Pervaiz took it ill and started abusing me. I also abused in return. Thereupon Zahid Pervaiz brought out a pistol from his car and tried to hit me. In order to save myself, I grappled with him and caught hold of the pistol which was in his hand. Zahid Pervaiz pulled the trigger and fires accidently hit Faheem deceased and Mst. Sidra injured. I did not fire any shot on them nor I was in possession of such a pistol. The case is false."
' Neither he opted to appear as his own witness to disprove the allegations as envisaged by section 340(2), Cr.P.C. Nor led any evidence in defence.
10. Upon culmination of trial, appellant was found and adjudged guilty of the offences, with which he was charged, convicted and sentenced to death with a fine of Rs,20,000 and in default whereof to suffer R.I. For further period of three years. He was directed to pay compensation in the tune of Rs,10,000 to legal heirs of deceased and in default to undergo R.I. For a term of six months. He was also convicted under section 324, P.P.C. For causing injuries to Mst. Sidra and sentenced to three years' R.I. And a fine of Rs,20,000 and in default thereof, to undergo six months' R.I. Payment of sum of Rs,2,000 to Mst. Sidra by way of compensation and in default to suffer R.I. For three months was also directed.
11. Such conviction and sentence awarded to the appellant stands challenged and assailed in 'instant appeal. Reference under section 374, Cr.P.C. For confirmation of sentence of death is also before us artd we propose to dispose both of it together by this single judgment.
12. Occurrence/incident, venue, thereof, and even its day and time are not denied and disputed.
However, parties are at variance with regard to the mode and manner thereof, As such it is a "two version" case. When both are juxtaposed, prosecution version turns out to be not only plausible but also rings true by the testimony of injured child witness namely Sidra (P-9) and overwhelming evidence, data and material on record. In no way, one, advanced by the appellant, undoubtedly in his statement under section 342, Cr.P.C. Can be taken to be "first version" and manifestly appears to be an after-thought affairs and figment of his imagination. Viewed from any angle, same is not worth implicit reliance and is exposed to frivolity.
13. Scanning of record reveals that no previous enmity or rancour of prosecution witnesses with the appellant has been suggested or even hinted at, Mere aspect that 5/6 days ago quarrel ensued between the complainant and the appellant over demand of "Jagga Tax" is by itself not sufficient to discredit his E testimony which not only inspire confidence but also has not been shaken any way, Rather it lends full support to the cause of prosecution and serves as a strong motive for the commission of offence. It was broad day-light occurrence and question of mistaken identity does not arise at all. As regards substitution, suffice it to say, that screening out of real culprit, particularly by the father and uncle/complainant, cannot even be imagined in the circumstances of instant case, Not a single factor to impair prosecution case, is borne or spelled out. Rather it stands proved to the hilt by ocular account duly corroborated by Medical Evidence, recoveries and also attending circumstances. Even investigation cannot be taken to be faulty or perfunctory on any count.
14. Be that as it may, occurrence cannot be taken to be result of premeditation lurking in the mind of appellant that he would find the complainant and his children standing at the outer-gate.
Seemingly incident took place at the spur of moment and facts, which, ultimately led to firing are hidden and unveiled. These aspects do not warrant imposition of extreme penalty which render it to be unjustified and uncalled for.
15. As a sequel thereto, appeal is partly accepted, sentence of death is NOT confirmed and the same is altered and converted into imprisonment for life. Rest of sentences are, however, maintained and upheld. Benefit of provisions of section 382-B, Cr.P.C. Shall, however, be extended to the appellant, while, computing the period of his sentence on both counts. Murder Reference No,441/92 is accordingly answered in the negative.