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 u/S. 302-B PPC 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 PW-7 made by him through fclR Ex.PH is that oh 13.9.1991 at 4.00 p.m. He was going to Chak Thathai alongwith his son Tahir Hussain (deceased), Jan Muhammad and Takreem Hussain PW-8. 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 l2 bore pistol. He raised lalkara that he would not spare Tahir Hussain as he had been interfering in his business of sale of Narcotics etc. Immediately thereafter, he fired a shot from his pistol hitting Tahir Hussain on the right.Side of his nose. Tahir Hussain fell down. The complainant and his companions tried to over power the appellant but he threatened, on which they had to retreat. The appellant fled away alongwith his pistol. Tahir Hussain 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 PW-7, Takreem Hussain PW-8 and Jan Muhammad.
As regards motive, it was stated that tthe 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. The FIR was recorded by Muhammad Mumtaz, SI/S.H.O. PW-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 Ex.PD, prepared rough site-plan Ex.PI and recorded the statements of six PWs. At the spot. In the meanwhile, injured Tahir Hussain succumbed to the injuries and expired in the hospital.. Section 324 PPC was, therefore, substituted by section 302 PPC. He prepared injury statement Ex.PG and inquest report Ex.PK and the dead-body was despatched to the mortuary for post-mortem examination. He got prepared scaled site plan from the Patwari in triplicate Ex.PB, PB/1 and PB/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. Ex.PC. After completing the necessary investigation and other formalities the appellant was challaned and sent up to face trial.
4. Since Dr. Tanveer Ahmad who conducted the post-mortem examination and prepared MLR Ex.PF as well as post-mortem report Ex.PE had left for abroad, therefore, both the documents were identified to be in the handwriting, of the said Doctor by PW-5 Abdul Jabar Dispensar. In MLR Ex.PF, 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.
Subsequently during post-mortem examination, the same injury was noted andldescribed, It was a wound of entrance which had perforated scalp and skull. Membranes or brain were also perforated and congested. 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.
5. The prosecution examined ten witnesses in order to establish its case against the appellant. PW- 1 Muhammad Shamoon, Constable is a formal witness. PW-2 Umar Din Patwari prepared site-plan in scale of 40 karams to an inch. PW-3 Muhammad Yar attested the recovery of pistol P-4 effected at the instance of the appellant from an iron-box in his house. PW-4 Ghulam Hussain identified the dead- body of the deceased and attested some formal recoveries. PW-6 Muhammad Zafar, constable is a formal witness. PW-7 Imam Ali Shah complainant, father of the deceased, and PW-8 Takreem Hussain have furnished eye-witness account of the occurrence. Both of them made statements consisteht with-the narration of fact in the FIR Ex.PH. Both the witnesses corroborated each other on all the material points. They were subjected to lengthy cross-examination but nothing favourable to the appellant or damaging the prosecution case could be elicited. PW- 9'Muhammad Mumtaz, SI/S.H.O. Conducted the investigation, details of which have already been noted and referred above. PW-10 Khurshid Altaf is a clerk in D.H.Q. Hospital. He produced Indoor 3md Outdoor registers as Well as Admission Register and Death Register. The relevant entries regarding admission of Tahir Hussain and subsequently his death are recorded. Although examination of this witness was not very essential yet out of abundant precautions,, the prosecution examined him alongwith the record.
6. After examining the aforesaid witnesses the learned D.D.A, tendered in evidence the report of Chemical Examiner Ex.PL as well as Serologist Ex.PM and with that closed the case of the prosecution.
7. The appellant was examined u/S. 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 PWs. Falsely implicated me in the present case."
8. The Learned counsel for the appellant after going through the statementsof the witnesses especially eye-witnesses straightaway conceded that he would not 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 die 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 eyewitnesses 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 the motive. Apart from the eyewitness 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 PW-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 decoity 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 decoity due to party faction. It is correct that Tahir Hussain Shah deceased was challaned in a case of narcotic.
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 Dist. Vehari. It is correct that no case of narcotic was ever registered against Intizar Hussain."
On the basis of the admissions made by the PW, 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 preceded 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 had similar antecedents and the possibility that some dispute might have ensued in 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 upheld the conviction of the appellant u/S. 302-B PPC. 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 realization, 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 u/S. 382-B Cr.P.C, is extended.
Sentence of death not confirmed.