' TARIQ PERVEZ, J.---This Jail Criminal Appeal has been filed by Eid Rehman appellant against the sentence of death that has been awarded to him by learned Additional Sessions Judge, Hangu vide judgment, dated 19-5-1998. Appellant was tried on murder charge for killing Mehmood Khan (deceased) by firing at him with a pistol and on being found guilty has been convicted and sentenced under section 302, P.P.C. To death with a fine of Rs,50,000 and in default of payment of fine has been ordered to serve two years R.I. The fine, if recovered, was made payable to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. There is also a murder reference before us sent by learned Additional Sessions Judge.
2. Facts briefly stated are, that on 10-9-1995 at 13:10 hours Akram Khan complainant (P.W.7) in the company of his deceased son, Mehmood Khan, were present in their shop situated in Thall Bazar when Eid Rehman appellant while duly armed with a pistol entered the shop and started firing at Mehmood Khan who was hit and got wounded. The injured Mehmood Khan was first taken to Civil Hospital Thall but on the direction of doctors was shifted to C.M.H. Thall for treatemnt where he succumbed to the injuries on the same day.
3. The trial of the accused-appellant conunenced on 13-7-1995 while charge was framed on 30-7- 1997 whereafter the prosecution was directed to produce its evidence. In all nine witnesses were examined at the trial. It is only Akram Khan (P.W.7) and Zarif Khan (P.W.8) who have furnished eyewitness account of occurrence and facts relating to circumstances immediately after the occurrence i,e, res gestae. Dr. Aurangezeb (P.W.3) has carried out autopsy on the dead body of deceased Mehmood Khan while Lal Farid S.I. (P.W.9) has carried out the investigation.
4. Report was recorded by P.W.9 in C.M.H Thall at 1400 hours on 10-9-1995 when the deceased was still alive whose injury-sheet was prepared and was handed over to the doctor for medical treatment. Later on, on the death of injured, P.W.9 has prepared his inquest report. P.W.9 then proceeded to the spot in the company of the complainant and has drawn site plan Exh.P.B. He has also recovered some blood from the spot for which memo. Exh.P.C.1 was prepared. He has also arrested accused appellant on 25-9-1995 who was then possessed of a D.B. Shotgun with five live rounds of the same bore and also a pistol of 30 bore alongwith 13 rounds was taken into possession. The blood-stained articles consisting of clothes of the deceased and the earth were sent to the Chemical Examiner, the report whereof is Exh.P.Z.
5. We have heard learned counsel for the appellant and have gone through the entire evidence.
We have also heard learned counsel appearing for the State. Akram Khan Complainant present in person does not want to engage a counsel and states that he would adopt the arguments advanced by the learned Assistant Advocate-General appearing for the State.
6. Learned counsel for the appellant contended that the very F.I.R. Is doubtful as it was recorded not in the Police Station but in the hospital, that the complainant Akram Khan was not present on the scene of the crime but being father of the deceased and due to land dispute between the parties has deposed against the appellant. He being interested witness, his testimony cannot be accepted without independent corroboration. It was argued that the crime was unseen and although it has occurred in thickly populated area in the Main Bazar of Thall yet no independent witness was either cited or produced by the prosecution not even to support the presence of complainant Akram Khan on the spot. He further argued that the motive, as alleged, was that the appellant would demand land from complainant which was beyond his share to which the complainant would not agree, therefore, if the appellant was to kill, he should have first chosen the complainant and should not have fired at the son. Next, it was argued that ocular account has been improved upon to bring the same in conformity with the medical evidence. Highlighting the submissions reference was made to F.I.R. Where complainant has stated that they were sitting in the shop at the time of occurrence but when the doctor opined at the trial Court the injuries caused to the deceased could not be caused to the person while in sitting position, the complainant has changed his version at the trial by stating that at the time of commission of the crime he and his deceased son were present and standing in the shop. Learned counsel for the appellant relied on PU 1978 SC 270 in support of his submission that motive though has been admitted by the accused appellant in his 342, Cr.P.C. Statement but such being a double edged weapon would not lend support to the interested testimony of P.W.7. He has also relied on 1999 SCM R 1220 to support his submission that the presence of the eye-witnesses at the relevant time does not stand proved.
' While referring to the statement of Zarif Khan (P.W.8) it was stated that his conduct would militate as to his presence because he though being brother-in-law of the deceased did not bother to accompany his injured brother-in-law to the hospital. His statement was also challenged on the ground that he was examined by the police after delay of four days.
7. Learned counsel appearing for the State argued that it is a promptly lodged F.I.Rs, case where single accused has been charged and that appellant has admitted the motive as put to him in his 342, Cr.P.C. Statement and there being no serious blood feud enmity, there was no reason or rhyme with the complainant to bring a false charge.
8. Before reverting to the submissions made by the learned counsel for the appellant, we may briefly state the evidence of P.W. Zarif Khan. In his statement he states that on the day of occurrence he was going to Main Bazar Thall and when reached Library Bazar he saw accused appellant running away with a pistol in his hand and when he reached the spot found Mehmood Khan in injured condition and on his inquiry, Mehmood Khan had told him that he was shot at by Eid Rehman Appellant.
9. Now coming to the submissions of the learned counsel for the appellant. We are not convinced from his arguments on the point of crime being un-witnessed. The presence of the father with his son in their own shop is not unnatural. There is no delay in making the report. Deceased while injured, was first taken to Civil Hospital Thall and on the advice of the doctors was shifted to C.M.H.
Thall, when, according to evidence, after about 10/15 minutes the police arrived and then the complainant made his F.I.R. The time span of 50 minutes between the occurrence and making of report stands explained. Motive has been admitted by accused in question put to him under section 342, Cr.P.C. The ocular account of Akram Khan cannot be brushed aside as the same is consistent except where he has improved his statement by stating that at the time of occurrence he and his deceased son were standing in the shop. Such improvement would have been vital to the case of the prosecution; provided that number of accused charged were more than one. Here in this case, for a small motive a single accused has been charged and as being commonly held by his Court as well as by the august, Supreme Court of Pakistan that in case of single accused being charged substitution of the real culprit is a rare phenomena. There is statement of Akram Khan who is though father of the deceased but is not inimically deposed against the accused appellant except land dispute. He is not expected to have brought a false charge particularly where the accused and the complainant party are inter-related which relationship has not been denied. The statement, of Akram Khan is confidence inspiring though he may be sole witness but reliance can be placed on his testimony as the same rings true.
10. Taking up the statement of Zarif Khan (P.W.8) who has introduced the oral dying declaration and has seen the accused appellant running away with a pistol in his hand needs to be excluded from consideration. Grounds are clear, i,e, he was examined by the police after four days, meaning thereby that the oral dying declaration was for the first time introduced after considerable delay.
He being brother-in-law of the deceased has behaved contrary to what he was required to do in the given circumstances. He has failed to give company to his injured brother-in-law to the hospital which would reflect on his absence. A witness who is closely related to the deceased which deceased is yet surviving but for no explanation if such witness does not behave what in the ordinary course he should have, the inescapable conclusion one can draw is that he was not present on the scene of crime as he has failed to go to the hospital with the injured. We are, thus, inclined to exclude his testimony from the prosecution evidence.
11. Having accepted the accusation against the appellant which stands proved to our mind. The next question that requires consideration is quantum of sentence. The real motive appears to have been suppressed and so is the manner of occurrence. In the F.I.R. The complainant states that motive is grounded on land dispute while in his Court statement in the examination-inchief he has urged no motive. He has highlighted the motive in the cross-examination by stating that the accused has fired at my son due to some property dispute between us and the accused. The dispute was that the father of the accused had sold his share and then he was demanding share in my share. Some days prior to the occurrence, accused Eid Rehman had come to my house and was demanding land from me. I told him that he should go to Patwar Khana for his land. At that time no elder had intervened for compromise regardng the land dispute. At that time accused had told me that I have got no concern with the Patwari and I demand land from vou." (underlinging are done by us to emphasise).
11-A.The above nature of dispute would show that the demand of the appellant was consistently directed to the father i,e, the complainant and not the son. One fails to understand when father was present on the scene of occurrence, as we have already held he was so, yet the deceased i,e, son was fired at, would show that the real motive of the occurrence and its immediate cause is shrouded in mystery. One cannot rule out the possibility that on the day of occurrence accused- appellant having gone to the shop of the complainant party must have once again demanded land from the complainant but the deceased being present might have retaliated whereafter accused appellant started firing. It is in this background that we are not in agreement with the finding of the learned trial Court on the point of quantum of sentence. The appeal is partially allowed. The sentence of death is altered to life imprisonment with benefit of section 382-B, Cr.P.C.
The fine of Rs,50,000 is converted payable as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or six months S.I in default of payment of compensation.
' With the above alteration in the quantum of sentence, the murder reference is answered in negative.