1. ' MUHAMMAD NAWAZ ABBASI, J.---Amir Hussain son of Mouladad, the appellant in present Appeal bearing No,230 of 1995 was tried under section 302, P.P.C. By learned Additional Sessions Judge, Gujar Khan for the charge of committing Qatl-iAmd of Ahmad Khan husband of Mst. Fatan Bibi complainant. The learned trial Judge having found the appellant guilty of the charge convicted and sentenced him to death vide judgment dated 10-12-1995 with a direction to pay compensation of Rs,50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. The appellant has challenged his conviction and sentence through the above appeal and. The learned trial Judge has sent the Murder Reference No,16 of 2000 for confirmation of death sentence awarded to the appellant.
2. ' The facts of the prosecution case as narranted in the F.I.R. Exh.P.F. Registered on the report lodged by one Mst. Fattan Bibi wife of Ahmad Khan deceased, are that on 7-5-1991 at about 11-00 a.m., she was present at the grossery shop being run by her husband adjacent to his house in village T,rkwal in the area of Police Station Jatli, Tehsil Gujar Khan, District Rawalpindi when Amir Hussain son of Moulauad, while appearing from the side of house of Lal Hussain situated opposite to the shop of Ahmad Khan inquired from the deceased that which money was being demanded by him through Lal Hussain payable by the accused having picked up a quarrel with Ahmad Khan, while extending threats to him left for his house and after a short while, challenged Ahmad Khan from the courtyard of the house of Merh Khan son of Nawab Khan situated opposite his shop and fired a shot with revolver which hit Ahmad Khan near his left eye. Ahmad Khan fell on the ground and on her hue and cry Ghulam Muhammad son of Noor Muhammad attracted to the scene and witnessed the occurrence. Nazir Ahmad, Sub-Inspector (P.W.9) while reaching at the spot prepared inquest report Exh.P.G. Of the deceased and dispatched the dead body to the mortuary for post-mortem examination. During the spot inspection, the.Sub-Inspector secured blood-stained earth from the place of occurrence vide memo. Exh.P.E and prepared the site plan. The Investigating Officer took into possession the blood-stained last worn clothes of the deceased produced before him by a Constable, who escorted the dead body to the mortuary. The Investigating Officer recovered .30 bore Pistol P.5 from residential house of the accused on 26-5-1991 on the pointation and disclosure of the accused under arrest. The Pistol was taken into possession vide memo. Exh.P.0 Dr. Haji Tariq Mehmood, Medical Officer, Tehsil Headquarter Hospital, Gujar Khan (P.W.5) conducted post- mortem examination on the dead body of Ahmad Khan on 2-5-1991 in Tehsil Headquarter Hospital, Gujar Khan and found the following injuries on his person:-
(i) A fire-arm wound of entry on the left wall of nasal wall at the level of lower lid, of 1.0. c.m. x 1.25 c.m. With inverted margins with burning and blackening also present. It is directed posterioly and towards the left lateral side on probing to the posterior part, of the skull cavity.
3. ' The Doctor has found, the burning and blackening around the injuries and expressed opinion that probably the deceased was fired at from a close range. In the opinion of the Doctor, the injury was caused with fire-arm, which was found sufficient to cause death in ordinary course of nature.
4. ' The prosecution in addition to the Investigating Officer, Mst.Fattan Bibi the first informant and Doctor also produced `the following witnesses in support of the charge:-- ' P.W.1. Zaffar Ullah Khan, Constable, who escorted the dead body to the mortuary and having collected the last worn clothes of the deceased from Doctor handed over the same to the Investigating Officer. The witness was also given parcels containing. Bloodstained earth and Pistol, which was deliveied by him in the Office of Chemical Examiner and Forensic Science Laboratory at Lahore respectively.
5. ' P W.2 Muhammad Khan is Councilor of the village, who witnessed the recovery of blood-stained earth from the place of occurrence.
6. ' P.W.3 Khadim Hussain, Assistant Sub Inspector/Moharrar of Police Station kept parcels of blood- stained earth and Pistol given to him by Investigating Officer in safe custody and later the said parcels were given by him to Zaffar Ullah Khan, Constable for their delivery in respective Offices.
7. ' P.W.4; Jehandad witnessed the recovery of Pistol P.5 from the house of the accused at his instance.
8. ' P.W.6 Muhammad Din prepared the site plan of the place of occurrence under the direction of Police and on the pointation of P. Ws. The witness has described the distance of the accused from the appellant and the height of the wall of house of Mehr Khan.
9. ' P.W.10 Muhammad Aslam, Police Constable is a formal witness ' Mst.Fattan Bibi (P.W.7) and Ghulam Muhammad (P.W.8) have furnished the ocular account of the occurrence. Mst.Fattan Bibi is the wife of the deceased, who claimed that she was present with her husband Ahmad Khan in the grossery shop, which is situated adjacent to their house when Amir Hussain having exchanged altercation with Ahmad Khan left for his house and after a few minutes, he across the wall of the house of Mehr Khan shouted at her husband from the courtyard of the house and when the husband of petitioner attracted towards the accused, Amir Hussain accused fired a shot with Pistol, which hit to her husband near the left eye, who fell on the ground and succumbed to the injury. Ghulam Muhammad has stated that he was at a distance of 10/11 Karams from the shop of Ahmad Khan when Amir Hussain accused raising Lalkara fired at Ahmad Khan from the courtyard of the house of Mehr Khan.
10. ' The accused in his statement under section 342, Cr.P.0 having denied the charge pleaded innocence and in reply to question No,9 made the following answer:- "I am totally innocent and Ghulam Muhammad, P.W. Was never present at the relevant time of occurrence even according to the deposition of Mst.Fattan Bibi he came after the occurrence. The complainant tried to suppress her relationship with Ghulam Muhammad and deposed that she is distantly related to him but in cross-examination she admitted that he is her son-in-law. The complainant has also admitted that she raised hue and cry and thereafter Mst.Anaran given up P.W. And Ghulam Muhammad came there and from her deposition it appears that they came ten minutes after occurrence and that too after the arrival of the Police at the spot. The complainant has also admitted that the police took almost two to three hours at the spot in interrogating the other persons prior to her interrogation and she met the Police/Thanedar in her house for the first time and told the whole occurrence to the Thanedar in her house and fixed her thumb-impression on her statement there. Meaning thereby that F.I.R. Was result of consultation and deliberation and recorded much after the alleged occurrence and Rozenamcha was seized as the assailant were not yet settled. That the complainant was carrying on with Khuda Dad alias K.D. And during Chelum of her husband she eloped with aforementioned Khuda Dad and was living with him adulterous life and Khuda Dad alias K.D and the complainant were arrested together by the Police. On the instigation of Khuda Dad and with his help and assistance the complainant killed the deceased by firing at him from close body contact and Medical Officer has confirmed the aforesaid fact. Even otherwise the sole injury found on the person of the deceased was with inverted margin with burning and blackening, was also present. The fact per se shows that the deceased was done to death from a very close range i,e, from body contact and the place where they allege that I fired at the deceased is at a distance of 17 feet and the wall from where the thing alleged is more than seven feet in height. Therefore, the prosecution story stand belied by the site plan, assertion of the witnesses and the medical evidence. The statement of the Medical Officer (P.W.5) Dr. Haji Tariq Mehmood confirmed that the deceased was done to death at 2.00 a.m. On 2-51991, the burning and blackening un the person of the deceased confirm that he was fired at from a very close range, therefore, the prosecution story is belied and I have been made scape goat due to old enmity and Lal Hussain Porter who is an important witness of the-motive was neither examined by the Police nor produced during the trial and motive too was diluted by the complainant and clearly departed from her statement Exh.P.E. Ghulam Muhammad P.W. The only witness produced by the prosecution is closely related to the deceased and was materially contradicted with his previous statement and he himself' confirmed that nobody can see Ahmad Khan deceased while he was inside the shop and he saw for the first time the deceased when he was lying dead and according to his own admission, he was performing the carriage service on his camels and he reached there just by chance at the spot and according to his own admission his house is nearer to the place of his work. If one comes from the southern side the house of the P.W. Is 1000 yards away from the house of deceased. His statement is materially contradicted and none from the village supported the prosecution case. He further confirmed that the deceased was convicted and sentenced in the murder case of one Khuda Dad and the deceased was having many enemies and the deceased was having pitched enmity of murder with the sons of Khuda Dad:namely Muhammad Nawaz, Rab Nawaz and Allah Ditta and Rab Nawaz etc. Are the sons of my maternal uncle. He further confirmed that there was blood-fued and pitched enmity between the accused and the complainant party for the last 30/35 years and they are not speaking terms as well The Investigating Officer as well as the Draftsman and the witnesses have confirmed that the distance between the alleged place of fire and the place of presence of the deceased was 17 feet and same was measured correctly with measuring tape and this fact as submitted above Pease is sufficient to discard the prosecution evidence. It was Mst.Fattan Bibi complainant, who done to death the deceased with the active help and assistance of Khuda Dad gias K.D. In small hours of the night and in the morning she made false hue and cry to show the people that he was murdered by his enemies. Khuda Dad alias K.D is a desperate person. He was convicted later on in a murder case by Special Court. Place of occurrence is situated in thickly populated area and none from the village has supported the false version of the prosecution."
11. ' The learned counsel for the appellant while pointing out the discrepancies and contradictions in the statement of eyewitnesses contended that as per site plan, the distance between the courtyard of the house of Mehr Khan and shop of Ahmad Khan was 15 feet which was admitted by Mst.Fattan Bibi the first informant as well as the Investigating Officer and that as per prosecution case, the shot was fired at the deceased from the courtyard of the house of Mehr Khan, whereas the Doctor, who conducted the post-mortem examination on dead body of the deceased found blackening and burning around the injuries and thus it was established beyond doubt that the deceased was fired from close range and the occurrence was not witnessed either by Mst.Fattan Bibi, or Ghulam Muhammad and that they reached at the spot subsequently. The learned counsel has next argued that the motive part of the story was not established beyond doubt as neither Lal Khan was produced in support thereof nor it was known that when the demand of return of money was made by the deceased.
12. ' The learned counsel for the State on the other hand, has contended that it was a broad daylight occurrence and Mst.Fattan Bibi being inmate of the house was natural witness. The learned counsel added that there was no serious enmity between the parties. Therefore, there was no reason either of the substitution of the accused or his false implication.
13. We have heard the learned counsel for the parties at length and perused the record with their assistance. The shop being run by the deceased was a part of his residential house and the site plan would show that the shop is linked with the house from inside, thus the presence of Mst.Fattan Bibi wife of the deceased in the shop being natural was not questionable. The deceased admitted sustained injuries while he was inside the shop. The evidence of Ghulam Muhammad, who claimed to have seen the occurrence, while standing at some distance from the place of occurrence even if was excluded from consideration to the etent that his claim of having seen the appellant firing at the deceased from the courtyard of Mehr Khan was not believable, the evidence of Mst.Fattan Bibi wife of the deceased, who was present in the shop at the time of occurrence, was alone sufficient to prove the charge. This is correct that according to eyewitnesses, the shot was fired from the courtyard of the house of Mehr Khan at the deceased, which was at a distance of more than 12 feet and if the shot was fired at such a Listance, there would be no burning and blackening. The contention of the learned counsel for the appellant to that extent is supported by the medical evidence but this contradiction appears to be result of some confusion regarding the distance or the manner of taking place the occurrence and thus such conflict or contradiction would not be sufficient to disbelieve the natural eye-witness and suggest the substitution or false implication.
14. The perusal of the site plan in the light of the statement of Mst. Fattan Bibi would show that probably, the accused after firing at the deceased from a short distance run into the courtyard of the house of Mehr Khan, which was situated just opposite to the shop and Mst.Fattan Bibi due to suddenness of the occurrence was not in a position to notice the action of the appellant and being confused took the impression that the accused fired from the courtyard of Mehr Khan. The possibility that when Mst.Fattan Bibi was busy in attending her husband in the shop, the accused by that time took shelter in the courtyard of Mehr Khan could not be ruled out. There was no enmity between the parties except altercation of the deceased with the appellant before the fateful occurrence on a petty matter relating to the dispute of Rs,300 which was brought by the deceased in the notice of Lal Khan and the accused felt insulted. Lal Khan was not produced and, therefore, what conversations had taken place between Lal Khan and deceased was not known but in any case, the deceased and the appellant exchanged hot words in presence of Mst.Fattan Bibi and in consequence thereto after a few minutes, the accused fired at the deceased. Notwithstanding the correctness or otherwise of the dispute relating to the amount in question, the altercation having taken place between the deceased and appellant before the occurrence, in presence of Mst.
15. Fattan Bibi would be a rich source to suggest that accused being annoyed re-acted without any other enmity in the background. The parties having not brought any evidence to suggest any other motive behind the occurrence except the altercation of the accused with deceased and shortly after the incident of altercation the accused loosing the patience fired at the deceased. We find that the evidence of Mst.Fattan Bibi wife of the deceased a natural witness of the occurrence was being fully supported by the circumstances, under which, the occurrence took place, therefore, the conflict of her statement with medical evidence regarding the distance would be of no consequence and except the contradiction in question, the medical evidence provided full corroboration to the statement of Mst. Fattan Bibi. It was a daylight occurrence, which took place in the shop of the deceased; without any background of enmity, therefore, there was not a remote possibility of false implication and substitution of the appellant. The sole statement of Mst. Fattan Bibi a natural witness of the occurrence would be sufficient to prove the act of firing by the appellant at her deceased husband.
16. ' For the foregoing reasons, we find that charge for committing the murder of Ahmad Khan deceased was proved beyond doubt.
17. 'While considering the question relating to the quantum of sentence, we find that the deceased and the accused without any serious dispute in the background exchanged altercation over a petty matter and the accused while loosing patience shortly after the altercation fired a shot at the deceased without preparing the same despite having opportunity. Therefore, it can be visualized, from the attending circumstances that it was not a premeditated occurrence and the accused while under the influence of provocation fired a single shot at the deceased. We, therefore, are of the view that it was a sufficient mitigating circumstance for lesser punishment and consequently, we while maintaining the conviction of the appellant under section 302(b), P.P.C. Alter his sentence from death to life imprisonment and dismiss this appeal. However, the compensation awarded by learned trial Judge to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. Is maintained.
18. ' With the above alteration in the sentence, the murder reference is answered in negative and crimin-1 appeal is dismissed.