' Instant appeal is directed against the judgment dated 29-10-1998 passed by Mr. Ali Nawaz Chohan, the then learned Sessions Judge, Sheikhupura whereby he convicted the accused/appellant under section 311, P.P.C. And sentenced him to R.I. For 12 years and a fine of Rs,5,000 or in default thereof to further undergo R.I. For 3 months. He further ordered that the amount of fine, if realised, shall be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. Was extended to the accused/appellant.
2. Briefly stated the facts are that about 10 years ago Shahadat Ali son of Noor Muhammad complainant (P.W.1) was married with her Mst. Bibi daughter Chaughata. Out of their marriage two issues were borne. About 5/6 days prior to the occurrence dated 22-9-1996 quarrel took place between Shahadat Ali deceased and his wife Mst. Bibi. Mallah son of Chaughata, a brother of Mst.
Bibi, was present in their house as the former had come to see his sister. He (Mallah) reconciled the parties. On 21-9-1996 at 4-5 p.m. An altercation again ensued between Shahadat Ali deceased and Mst. Bibi. Incidentally Mallah was again present in their house at the relevant time and he took ill of their quarrel. On 22-9-1996 at about 6-00 a.m. Shahadat Ali deceased left his house for Nankana Sahib and reached within the area of Piddi Pur, when Mallah chasing him reached there and fired with his double barrel gun which hit Shahadat Ali on the right side of his chest, who fell down. The accused Mallah again fired which hit the deceased under his chin. Shahadat Ali deceased succumbed to the injuries on the spot. This occurrence was witnessed by Manzoor Ahmad (P.W.2) and Nazir Ahmad son of Naina (P.W.3) who were passing by that side. After leaving the dead body under the supervision of Mst. Bibi, the complainant Noor Muhammad alongwith Muhammad Arshad made for the police station to lodge report.
3. Muhammad Afzal A.S.I. (P.W.12) was on patrol duty when the complainant Noor Muhammad met him and on his statement recorded complaint Exh.P.A. And then sent the same to the police station for formal registration of case. He then made for the place of occurrence, inspected the spot and prepared site plan Exh.P.F., prepared injury statement Exh.P.G. And inquest report Exh.P.H. He entrusted the dead body to Muhammad Arshad constable (P.W.9) for post-mortem examination and prepared the site plan Exh.P.J. He secured blood-stained earth vide memo. Exh.P.B. He received last worn clothes of the deceased P.2 and P.3 alongwith a sealed phial vide memo. Exh.P.E. He handed over the said parcel to Moharrir and got the site plan Exh.P.C. Prepared from Ali Muhammad (P.W.4) Halqa Patwari. He got the accused declared absconder. Later on the accused was arrested and investigation was transferred from him. After usual investigation the case was sent up for trial.
4. A charge under section 302, P.P.C. Was framed against the accused to which he pleaded not guilty and claimed trial.
5. To bring home guilt to the accused prosecution examined Noor Muhammad P.W.1, Manzoor Ahmad P.W.2, Nazir Ahmad P.W.3, Ali Muhammad Patwari Halqa P.W.4, Muhammad Arshad Ali Constable P.W.5, Ehsanul Haq, A.S.I. P.W.6, Altaf Hussain A.S.I. P.W.7, Nazir Ahamd Constable P.W.8, Ghulam Abbas P.W.9, Muhammad Arshad son of Muhammad Tufail P.W. 10, Dr. Khadim Hussain P.W.11, Muhammad Afzal A.S.I. P.W.12 and Muhammad Yousaf Constable P.W.13. Thereafter, the learned Deputy District Attorney produced the reports of Chemical Examiner Exh.P.K. And after giving up remaining witnesses closed the prosecution case vide his statement dated 15-(sic)-1998.
6. When examined under section 342, Cr.P.C., the accused admitted that deceased Shahadat Ali was married with his sister Mst. Bibi. He also admitted regarding the quarrel which had taken place between the accused and his sister. He, however, denied the recovery of Carbine and stated that he had been involved in this case falsely. In reply to question as to why this case had been registered against him and why the P.Ws. Have deposed against him, he replied as follows:-- "My mother Mst. Fateh Bibi after the death of my father had married Noor Muhammad complainant of this case, who is my uncle. At that time I was minor. Later on when I grew up, I married a niece of Noor Muhammad complainant and subsequently I divorced her.
' Thereafter, I married Mst. Manzooran and proceeded to Sindh and started living with D.S.P. Tipu in Chak No,22, Police Station Sanjhora District Sanghar. The parents of my wife Mst. Manzooran also migrated to Sindh. My mother Mst. Fateh Bibi in my absence developed strained relations with her husband Noor Muhammad, complainant of this case, and she started living with her minor children in Chukhianwala village. Shahadat deceased was a bad character and numerous cases of theft are pending in the Courts against him. I know nothing about his murder. On the alleged day of occurrence I was not present at the place of occurrence."
' In his defence he examined D.W.1 Mst. Bibi, his sister and wife of deceased, and D.W. Mst. Fateh Bibi his mother. His learned counsel produced photo copies of F.I.Rs, and then closed his defence evidence.
7. After going through the evidence produced by the parties the trial Court convicted and sentenced the accused/appellant vide judgment under appeal.
8. Arguments have been heard and record perused.
9. It is submitted by the learned counsel for the accused/appellant that contents of complaint Exh.P.A. Do not disclose that complainant was present at the time of occurrence, as such his presence as an eyewitness is highly doubtful, that there is also no explanation of the presence of Mst. Bibi widow of the deceased at the place of occurrence, particularly when the deceased left his house all alone, that it appears that some unknown person committed the murder of deceased and accused/appellant has been involved in this case falsely, that had the P.Ws. 1 to 3 been at the place of occurrence, they would have tried to shift the deceased to hospital, as he is said to have died after about half an hour as per statement of Dr. Khadim Hussain P.W.11, that all these facts make the prosecution case doubtful. He further submitted that in the alternate, the sentence awarded to the appellant may be modified to the period which he has already undergone, as his widow Mst. Bibi (D.W.1) has pardoned him.
10. Conversely, the impugned judgment has been supported by the learned counsel for the State.
11. The accused/appellant stands charged under section 302, P.P.C., but has been convicted under section 311, P.P.C. Prosecution has examined as many as 13 P.Ws. In this case. Out of whom, the evidence of P.Ws. 1 to 3 is relevant. All these P.Ws. Have deposed unanimously that the deceased was done to death by the accused/appellant. They have been cross-examined at length, but they have stood the test. Admittedly, Mst. Bibi (D.W.1) is widow of the deceased and she has pardoned the accused/appellant as is evident from her statement. Mother of the accused Mst. Fateh Bibi (D.W.2) has also been examined and she has categorically admitted that she had not moved any higher authority in respect of innocence of accused/appellant. The statements of D.Ws.1 and 2 also lend a helping hand to the prosecution version that accused/appellant is guilty of the offence charged against him. Thus, prosecution evidence coupled with the statements of D.Ws.1 and 2 go to prove that it was accused who committed the murder of deceased. Thus, he has rightly been convicted under section 311, P.P.C.
12. Since the widow of deceased Shahadat Ali has pardoned the accused, so the sentence awarded to the accused/appellant is reduced from 12 years to 5 years only. However, the sentence of fine imposed is maintained and it is ordered that if fine is realised, it shall be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. Shall remain available to the accused/appellant.
13. With this modification, the appeal is dismissed.