' KHAWAJA. MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No,158 of 1996 and Criminal Appeal No, 477 of 1996 filed by Latif Ullah, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Mianwali, vide his judgment dated 26-5-1996 to death under section 302(b) P.P.C. For committing Qatal-e-Amd. Of Ghulam Rasool deceased with the further direction to pay Rs,30,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default one year S.I.
2. Occurrence in this case took place at 7-1/4 a.m. On 14-6-1993 within the jurisdiction of Police Station Mochh, Mianwali at a distance of 15/16 Kms. Away while the matter was reported to the police on the same day at 9.05 a.m. By Ghulam Muhammad complainant and the formal F.I.R.
Exh.P.C. Was recorded by Abdul Razzaq, S.I./S.H.O. P.W.14.
3. According to the F.I.R. Exh.P.C. The facts of the prosecution case are that at 7-1/4 a.m. On 14-6- 1993 Ghulam Muhammad complainant alongwith his son Ghulam Rasool, Latif Ullah Khan and Zia Ullah Khan was coming to Mianwali in a "Datsun". The complainant got the vehicle at Paikhel but there was rush. The complainant had to attend the date of hearing of Ghulam Rasool deceased in the Court of Magistrate Section 30, Mianwali. When the complainant alongwith others reached near pull Peranwanal at about 7-15 a.m., he saw Latif Ullah, Abdul Waheed, and Sher Muhammad armed with pistols present near the pull. Latif Ullah gave a signal and the driver of the vehicle stopped the same. Ghulam Rasool son of the complainant got down because of rush. The complainant also got down. Abdul Waheed raised a "Lalkara" by saying that he would not be spared that day. Latif Ullah fired at Ghulam Rasool hitting him on the chest. He fell down. Then Sher Muhammad fired which missed. All the three assailants went towards the east and crossed Railway Line by tiring in the Air.
Ghulam Rasool was removed to the Hospital but he succumbed to his injury in the way.
' The motive was that Muhammad lqbal son of the complainant was murdered by Muhammad Ismail brother of Abaid Ullah and Latif Ullah in which Latif Ullah alongwith Ismail and Ahmad Saeed were challaned but were acquitted about 10 years ago. Ghulam Rasool then killed Ismail. Ghulam Rasool was sentenced to death but later on acquitted, thereafter, Ghulam Rasool fired at Latif Ullah and the case was pending and due to this grudge son of the complainant was done to death.
4. After registration of the formal F.I.R. Exh.P.C. Abdul Razzaq S.I./S.H.O. P.W.14 went to D.H.Q., Hospital, Mianwali, prepared injury statement, inquest report Exh.P.J. And then proceeded to the place of occurrence, prepared rough sketch of the place of occurrence Exh.P.K., collected blood-stained earth vide memo. Exh.P.D., thereafter, investigation was transferred to Khalid Bashir Inspector P.W.9, who arrested Latif Ullah, Abdul Waheed, Sher Muhammad Ubaid Ullah and Gul Muhammad on 13- 8-1993 then the investigation was transferred to Tariq Nazir S.I. P.W.13. On 26-8-1993 Latif Ullah accused/appellant while in custody led to the recovery of pistol P.4 which was taken into possession vide memo. Exh. P.G. On 27-8-1993 Abdul Waheed accused while in police custody led to the recovery of pistol 12 bore P.5, which was taken into possession vide memo. Exh.P.H. After completion of investigation accused were challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 14 witnesses in all, thereafter, learned D.D.A. Tendered in evidence report of Chemical Examiner Exh.P.L. And that of Serologist Exh.P.M. And closed the prosecution case, then the statements of appellant and his acquitted co-accused were recorded under section 342, Cr.P.C. In which they pleaded innocence and claimed false implication due to enmity.
6.After reading the prosecution evidence, statements of the appellant/recorded under section 342, Cr.P.C. And other relevant material available on record, learned counsel for the appellant submits that the prosecution has failed to prove its case against the appellant, eye-witnesses were not present at the spot, in fact the driver and conductor of the wagon were the only witnesses who could depose about the real facts of the case but the prosecution has not produced them, there was previous background of enmity between the parties so the question of false implication cannot be ruled out, there are material discrepancies in the statements of Ghulam Muhammad and Zia Ullah P.Ws. As to number of the shots fired, it was the driver of the wagon in which the deceased was travelling who took him to hospital in an injured condition, here is also conflict between the statement Investigating Officer and the eye-witnesses about the arrest of the appellant, appellant had offered special oath but the complainant refused to take the same, in Mianwali District cases are decided on the basis of special oath, refusal of the complainant to take the oath shows that the appellant was involved falsely in this case, no crime empty was recovered from the spot and the learned counsel has read before us the statement of P.W.14, Abdul Razzaq, ,S/.1./S.H.O. Appearing at page 44 of the paper book. In nutshell, learned counsel submits that the prosecution has not been able to prove its case successfully against the appellant .
7. On the other hand, learned counsel for the State submits that although there was enmity between the parties but the motive was with the appellant in which he was successful in committing murder of the deceased. Further submits that the appellant caused the fatal shot and there was no question of false implication of the appellant. He supports the judgment of the trial Court.
8. We have heard learned counsel for the parties at a great length and have also gone through the record with their assistance. For the just decision of the case, we would like to reproduce the motive part from the statement of Ghulam Rasool P.W.7, complainant and father of the deceased which reads as under: "My son Muhammad Iqbal was murdered by Muhammad Ismail brother of Ubaid Ullah and Latif Ullah accused. Latif Ullah accused alongwith Ismail and Ahmad Saeed were challaned but were acquitted about 10 years ago. My deceased son Ghulam Rasool then killed Ismail aforesaid subsequently. He was sentenced to death and later on acquitted. My son Ghulam Rasool fired at Latif Ullah accused and the case was pending in the Court of Magistrate Section 30, Ghulam Rasool was on bail and he was going to attend the Court of Magistrate Section 30, on the day of occurrence."
' This motive would show that now it was turn of the appellant to commit the murder of the deceased because he was acquitted by the learned trial Court for the murder of Muhammad Iqbal, thee again the deceased Ghulam Rasool fired at the present appellant and that case was still pending. This leaves no doubt about the implication of the appellant.
' As far as eye-witnesses are concerned, Zia Ullah Khan (P.W.8) is most independent witness. He is not related to the deceased or the complainant. He is not even from the Baradari of the deceased or the complainant. We have, therefore, no hesitation in holding Zia Ullah (P.W.8) as reliable and an independent witness. F.I.R. In the instant case was recorded at Police Station. The occurrence took place in broad daylight at 7-15 a.m. The matter was reported to the Police on the same day at 9-15 a.m. The Investigating Officer came alongwith the complainant to the hospital. He prepared the inquest report. Facts and the F.I.R. Number has been mentioned in the inquest report so it is established that the inquest report was prepared after registration of the F.I.R. The doctor had also signed the inquest report. The post mortem was conducted at 2-15 p.m. The same day. The duration between the time of death and post-mortem also coincides with the time of occurrence.
It leaves no room for doubt about the prosecution story which is legitimate.
' As far as statement of P.W.14 Abdul Razzaq, S.I./S.H.O. Is concerned, he has stated during the cross- examination as under:-- "It is correct that Muhammad Munir son of Gul Muhammad caste Awan Resident of Gullan Khel driver of the wagon and Haq Nawaz son of Shah Nawaz, resident of Mari Indus conductor of the wagon appeared before me. I interrogated them about the occurrence. According to Haq Nawaz condictor a person sitting at the roof of the wagon asked the driver to stop it near the place of occurrence. The driver stopped the wagon. The said person got down from the wagon accompanied by another person who alighted from the right side of the wagon. The person who got down from the roof of the wagon came in front of the wagon and fired at the deceased.
Muhammad Munir driver also made a similar statement. He, however, did not state if any person was sitting on the roof of the wagon or that he got down and came in front of the wagon. He, however, stated that he heard the noise of firing and noticed that two persons were running towards eastern side and were crossing the railway track. It is incorrect that I apprehended Ahmad Saeed son of Gul Muhammad and Riaz Muhammad son of Umar Hayat as suspects in this case. It is incorrect that Ghulam Muhammad complainant was not allowing to proceed the case against them. It is correct that Ghulam Muhammad P.W. Had got recorded in the F.I.R. That Ghulam Rasool was murdered as a result of conspiracy and abetment of Gul Muhammad son of Noor Muhammad and Ubaidullah son of Muhammad Yar."
' The cross-examination of the above said P.W. Being inadmissible in evidence cannot be taken into consideration. The conductor and the driver of the wagon were never produced by the defence nor any application was made by the appellant to summon them as Court witnesses. The other submissions made by learned counsel for the appellant that special oath was offered by the appellant but the complainant party did not accept that is concerned is nor recognised by law. It is by now well-settled that the cases are to be decided on the basis of evidence on record and not on the basis of special oath.
' As far as recovery is concerned, as no empty was recovered from the spot, the recovery of weapon of offence is of no avail because when there is direct evidence involving the accused in the commission of the offence.
' For all that has been stated above, we are of the considered view that it was the appellant who committed the murder of the deceased so we maintain the conviction alongwith amount of compensation as ordered by the learned trial Court but convert the sentence of death into imprisonment for life with the benefit of section 382-B, Cr.P.C. The mitigating circumstance in converting the death sentence to imprisonment for life is the motive part. Muhammad Iqbal son of the complainant was murdered by Muhammad Ismail, brother of Ubaid Ullah and Latif Ullah, the present appellant. Latif Ullah alongwith Ismail and Ahmad Saeed were challaned but were acquitted about 10 years ago. Ghulam Rasool deceased in the instant case then killed Ismail. He was sentenced to death and later on acquitted. Even thereafter Ghulam Rasool fired at Latif Ullah (present appellant) and the case was pending in the Court of Magistrate Section 30. From this it is manifestly clear that the appellant was driver to commit the murder of the deceased.
' Resultantly, this appeal is dismissed, conviction and sentence awarded by the learned trial Court alongwith the compensation and in default R.I. Is maintained but the death sentence is converted from death to imprisonment for life with the benefit of section 382-B, Cr.P.C. Murder Reference is replied in the Negative. The death sentence of appellant Latif Ullah is NOT confirmed.
Appeal demanded/