' SHAHZAD AKBAR KHAN, J.--- The appellant, Lais Khan, was convicted by the learned Additional Sessions Judge, Bannu for the murder of Haji Ashraf Ali and was awarded death sentence vide judgment, dated 5-8-1999 under section 302(b), P.P.C. The appellant has called in question his conviction and sentence through the instant appeal and the reference under section 374, Cr.P.C. Is also before us. Both the appeal and reference shall be disposed of by this single judgment, as both have arisen out of the same judgment of the learned trial Judge.
2. According to the F.I.R. Lodged by Haji Farzand Ali (P.W.4), he brought the dead body of his brother Ashraf Ali in a Datsun and lodged a report in Police Station Basia Khel, vide F.I.R. No,259, dated 2-11- 1996, to the effect that he alongwith his brothers Ashraf Ali and Ajmair Ali were going to attend "Painda" (Suhbat/Meal) in village Bazeeda Karim Khan in a Datsun driven by Moeenullah (D.W.). On reaching the spot at about 16-30 hours when on the road side they saw Lais Khan (appellant) armed with a kalashnikov and Hamza Ali armed with a .12 D.B. Shotgun. Hamza Ali signalled the Datsun to stop which was accordingly stopped and Hamza Ali told the appellant to kill Ashraf Ali who was standing on the "Paidan" of the vehicle. On such command, the appellant fired at Ashraf Ali with which he was hit and fell down and died on the spot. Motive for the offence was disclosed that about a month back, Taseer Khan, cousin of the complainant and also of the deceased had given beatings to the appellant and in order to settle the score, he had killed the deceased. The occurrence was said to be witnessed by Ajmair Ali (P.W.5) as well.
3. The prosecution in its endeavour to prove the case against the appellant produced nine witnesses, of whom, P.W.1 is Badshah Khan, who identified the dead body of the deceased before the police as well as the doctor at the time of post-mortem examination. P.W.2 is Muhammad Ameen, F.C. Who was entrusted with the search warrant under section 204, Cr.P.C. Against the appellant and Hamza Ali accused who returned the same with the report that the accused were not available in their village and the surrounding area and were said to have gone to the tribal territory. P.W.3 is Muhammad Iqbal Khan, Sub-Inspector, who arrested the appellant on 28-7-1997 and also submitted supplementary challan against him. P.W.4 is Farzand Ali Khan, the lodger of the F.I.R., who in his statement before the Court affirmed the contents of the F.I.R. And has given a detailed eyewitness account of the occurrence. P.W.5 is Ajmair Ali Khan who is also an eye-witness to the occurrence who has also corroborated the complainant on all the material points. P.W.7 (who should have been as P.W.6) is Doctor Riaz Ahmad, Medical Officer, District Headquarters Hospital, Bannu, who conducted the post-mortem examination on the dead body of the deceased on 3-11-1996 and found the following injuries:--
(1) An entry wound of 1/4" diameter on back of left side of chest just above medial angle of left scapula.
(2) Exit wound of about 1" x 1/2" size just above medial and of right clavical in supra clavicular depression.
(3) Two inches graze in middle of the back of right side of chest. Direction is from left back to right front, level horizontal.
Internal injuries: ' In throat, except particardium and heart, all other organs were injured. In blood vessels aorta, right common carotid aortry and big veins injured. In abdomen esophagus was injured. Stomach contained semi-fluid. In muscles, bones and joints, chest muscles injured.
' In his opinion the deceased after receiving fire-arm injuries died from profuse bleeding. Probable time elapsed between injuries and death was 5-10 minutes, while between death and post- mortem 12 to 14 hours.
4. P.W.8 is Muhammad Hayat Khan, A.S.-I. Police Station Saddar, Bannu who recorded the F.I.R.
(Exh.P.A.), prepared injury sheet of the deceased (Exh.P.M./1) and inquest report Exh.P.M./2. He despatched the dead body to the hospital for post-mortem examination. He then went to the spot alongwith the complainant and prepared the site plan (Exh.P.B.). From the venue of occurrence, he took into possession blood with the help of cotton, sealed it into a parcel vide memo. (Exh.P.C./1). He also took into possession six empties (P.1) vide memo. Exh.P.D. He recorded the statements of P.Ws.
Under section 161, Cr.P.C. And then handed over the investigation to the S.H.O. P.W.9 is Mir Alam Khan, S.H.O. Who while partly investigating the case, took into possession a shirt (P.2), Banyan (P.3) having cut marks through memo. (Exh.P.E.) produced by F.C. Nawaz brought from the hospital. He exhibited the chemical report (Exh.P.Z.) and submitted complete challan under section 512, Cr.P.C.
And supplementary challan against Hamza Ali accused. P.W.10 is Rabnawaz who had escorted the dead body of the deceased to the hospital and after the post-mortem examination received the shirt with Banyan and post-mortem documents from the doctor which were handed over to the Investigating Officer on the spot.
5. The accused was examined under section 342, Cr.P.C. Who plainly denied the commission of the offence and also existence of the motive and stated that if there was any such dispute with Taseer, the same had no nexus with the complainant. He, however, admitted his relationship with co- accused Hamza Ali as the brother of his father. Regarding his abscondence, he explained that he never absconded and was present in his own village throughout, but he was making efforts to persuade the complainant to withdraw the charge as it was baseless and when he became sure that the complainant party was reluctant to do so, then he voluntarily surrendered. He termed the P.Ws. As highly interested being the brothers of the deceased. He described his involvement in the case as a political vendetta, as he is closely related to Akram Khan Durrani, an M.P.A. Of the area, while the complainant party is the strong supporter of M.N.A. Malik Nasir Khan. He, however, did not opt to examine himself on oath. In defence, he asked for the production of Moeenullah, the driver of the vehicle who was produced as D.W. I .
6. The aggregate outcome of the above factual summary is that the prosecution has built up its case on ocular testimony of P.W. Farzand Ali and Ajmair Ali, medical evidence, recoveries in the form of empties of 7.62 bore, blood from the spot of the deceased which was subsequently, declared as of human origin by the laboratory report, abscondence and motive.
7. The learned counsel for the appellant argued that the prosecution has not succeeded in successfully proving the guilt of the appellant and the impugned judgment of the learned trial Court is the outcome of misreading and non-reading of the evidence and, as such, the conclusion about of the guilt of the appellant drawn by the trial Court was whimsical and thus, incorrect. He stated that the presence of the eye-witnesses is highly doubtful, as there was no reason for them to have accompanied the decesed. He also stated that nobody from the passengers present in the Datsun appeared as a witness to the occurrence. He further stated that P.W.1 Badshah Khan had only appeared as witness of identification of the dead body and he did not say anything about the Painda (Suhbat/Meal) allegedly arranged by him. Thus, the purpose of the visit of P.Ws.4 and 5 is not visible from the statement of P.W.1. He further contended that if the deceased was standing on Paidan of the vehicle and in such a position he was fired, then there should have been some bullet marks on the vehicle which were not found. His next argument was that there was a maize crop near the scene of occurrence and the possibility of identification of the assailants was impossible, as the assailants could achieve their purpose of killing the deceased even by firing from the maize crop and there was no need for the appellant to have exposed his identity. While folding his argument he argued that there was no motive for the offence as the motive alleged by the prosecution had no nexus with the deceased and it was directly linked with Taseer. Thus, the learned counsel argued that the conviction recorded by the trial Court is not based on correct appreciation of evidence. He, however, as a last limb of his submissions contended that even if the case of the prosecution is admitted as proved, then the punishment of death, in view of the circumstances of this case, is wholly unwarranted.
8. The learned counsel for the complainant and State have vehemently defended the impugned judgment and the ensuing conviction and sentence on the grounds mentioned in the judgment itself and have stated that the judgment of the trial Court is well-reasoned and no interference would be justified.
9. We have heard the rival arguments of both sides and carefully gone through the record. None of the submission made by the learned counsel for the appellant has any force. This is a broad daylight crime, which was authored at 16-30 hours and the report was made at 17-15 hours which is with reasonable promptitude, as the distance between the scene of occurrence and the police station is 4/5 kilometres. The occurrence has been witnessed by P.Ws. Farzand Ali and Ajmair Ali.
The appellant was, from the very first day attributed a kalashnikov with which he fired at the deceased which resulted into his death. Six empties of 7.62 bore giving fresh smell of discharge were recovered from point "B" in the site plan by the Investigating Officer which is located close to point "5" where the appellant was standing and had fired at the deceased. The deceased and his two brothers were going-to attend the Suhbat arranged by Badshah Khan (P.W.1) in honour of Farzand Ali who had come from Dubai and this is a common tradition of the area. It is also a common practice that the close relatives of the chief guest are also invited for the occasion and for that matter, the real three brothers were going to the house of Badshah Khan who is the sister's son of the complainant. Therefore, it cannot be a matter of surprise or novalty as to why the P.Ws.
Farzand Ali and Ajmair Ali were accompanying the deceased. They are the real eye-witnesses and have given a consistent account of the occurrence. They had been put to a lengthy cross- examination, but nothing favourable to the appellant could be divulged from them. The tale of the occurrence narrated in the F.I.R. Was subsequently affirmed by P.W.4 in his Court statement on all material points and his testimony is further supported by the testimony of P.W.5 Ajmair Ali Khan.
From day one, the appellant was attributed firing of kalashnikov and the recovery of six empties from the spot of the same calibre shown in the site plan is a strong corroborative circumstance.
The medical evidence is also in line with the ocular testimony, as there is an entry wound of 1/4" diameter on back of left side of chest just above medial angle of left scapula. There is also an exit wound of about 1" x 1/2" size just above medial and of right clavical in supra clavicular depression.
There are 2" graze wounds in middle of the back of right side of chest. The death of the deceased, according to the medical report was within 5 to 10 minutes which is also in congruity to the ocular testimony. The deceased was standing on the Paidan of the Datsun and obviously Paidan is an outer portion of the vehicle, therefore, firing on the person standing on the Paidan would call for a very little probability of the vehicle being hit. Therefore, the absence of the bullet marks on the body of the vehicle cannot cause any damage to the prosecution version and, as such, the contention of the learned counsel for the appellant is destitude of any force. Moreover, a bare look on the site plan would show that the vehicle of the deceased was stopped on the road side by Hamza Ali accused (since dead) and from point "5", the appellant had opened firing on the deceased. This point is located on the back of the water channel which is a sufficient distance from the maize crop shown in, the site plan. This point is clearly visible from points "2" and "3", where the presence of P.Ws. Farzand Ali and Ajmair Ali is shown. Thus, a person firing from point "5" is clearly within the visual range from points "2" and "3". It is also a noteworthy feature of the case that the empties were recovered from point "B" which is closely located to point "5". Thus, it is evident that the appellant had fired from point "5" where there is no maize crop. In the F.I.R., which is obviously prior to the drawing of the site plan, the complainant (P.W.4) had unequivocally stated that accused Lais Khan appeared from right direction from the Sheesham trees. Point "5" is also located within the Sheesham trees, three on one side and one on the other. Moreover, the contention of the learned counsel for the appellant that no independent person from the passengers of the vehicle has been cited as a witness is also of no significance, as in our social set-up no independent person dares to come forward to depose against a delinquent of the nature of murder due to the insecurity and the attended danger of incurring the wrath of the accused. In the instant case, there exists no such serious enmity which could serve as a motivating factor to falsely involve the appellant in such-like offence and why the real culprit should be spared to involve the appellant falsely, as the substitution is a rare phenomenon. Another important fact of the case is that the accused remained absconder after the commission of the offence, i.e. 2-11-1996 to 28-7-1997 and the explanation given by him in his statement under section 342, Cr.P.C. Is the least convincing to attract the confidence of a judicial mind. Thus, the abscondence of the appellant is also a corroborative circumstance having its strong tendency to articulate in support of the prosecution case.
10. Now adverting to the statement of D.W.1, we may observe that his testimony is totally destitute of quality of attracting our confidence, for the reasons, firstly; that his statement was recorded under section 161, Cr.P.C. Wherein he had categorically admitted the presence of Haji Farzand Ali and Ajmair Ali P.Ws. At the time of occurrence and had also admitted the fact that his vehicle was stopped by two persons, of whom one was equipped with .12 bore D.B. Shotgun and the other with kalashnikov and under the command of co-accused, the appellant fired at the deceased with the only difference to the version of the complainant that this D.W. Had not disclosed the names of the assailants.
11. In his Court statement, he has taken a totally different stance and has also excluded the presence of P.Ws.4 and 5 at the time of occurrence. It is noteworthy that this witness did not respond to the process of the trial Court and he avoided appearing notwithstanding the fact that warrants of arrest were issued against him and ultimately this witness appears to have been abandoned by the prosecution, as is evident from the order-sheet No,15, dated 3-3-1999. This fact has been admitted by the witness in his cross-examination that the Karachi Police wanted to serve summon on him so many times but he used to avoid/run away from them. It clearly shows that this witness was in the clutches of the accused party and he avoided appearance in the Court as a prosecution witness and readily appeared before the Court when so wished by the accused so as to record his statement as D.W. This witness has deposed that after the occurrence he put the dead body in the Datsun and took him to the village in order to inform his brothers, whereafter they had gone to the police station. The report of this incident was made within forty-five minutes, which could not have been possible if after the occurrence the deceased was taken to his village and his brothers were informed and thereafter they had come to the police station. After recording his statement under section 161, Cr.P.C. No step was taken by him, or for that matter the accused party, for disowning his previous statement. Tainted with such-like inherent infirmities, his statement cannot earn any confidence and, as such, we do not consider him as a truthful witness. Moreover, his testimony cannot be of any efficacy so as to outweigh the evidence of the prosecution as detail fully given above.
12. From the above discussion, we are clear in our mind that the prosecution has successfully proved its case against the appellant and resultantly this appeal is dismissed with regard to the conviction of the appellant. However, so far as the sentence is concerned, we feel that the motive part of the prosecution case is not transparent which can be conveniently treated as an extenuating feature. Thus, we convert the sentence of death into imprisonment for life with the consequence that the reference under section 374, Cr.P.C. Is not confirmed. Besides, the appellant shall pay an amount of Rs,50,000 as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C., failing which he shall further undergo one year's R.I.