1. BASHIR A. MUJAHID, J.---Asghar Khan son of Akbar Khan has challenged judgment dated 11-6- 1996 passed by learned Sessions Judge, Attock whereby he was convicted under section 302 (b)
2. P.P.C. for commission of murder of Safdar Khan and sentenced to death. He was also ordered to pay compensation of Rs,50,000 to the legal heirs of the deceased under section 544-A C r . P. C.
3. The brief facts of the prosecution case are that F.I.R. No,90 (Exh.P.W.8/A) was registered at Police Station Bahtar District Attock on 14-11-1994 at 6-30 p.m. at instance of Raja Khan, P.W.8 about the occurrence of place at a distance of 14 K.M. from the police station; wherein it was stated by the complainant and he was resident of Ghagharh and hid three brothers namely, Nawaz Khan, Akbar Khan and Safdar Khan and the complainant was running a Teal Stall on Attock Road at Fateh Jang near the bungalow of Asad Khan and on the day of occurrence at `Deegarwela' he received information that some quarrel had been taken place with his brother Safdar Khan. On which he arrived in village where he was informed by Iftikhar Khan son of Safdar Khan, P.W-9 that his father Safdar Khan who was employee in a Dispensary at Jojikalan came to the house after his duty at 4 p.m. and had entered from the outer gate of his Haveli when Asghar Khan armed with double barrel gun .12-bore was standing on the roof of Nawaz Khan raised Lalkara to Safdar Khan to teach him lesson for obtaining land and tired at him hitting on back of his left side who fell on the ground after receiving the injury and died at the spot. The occurrence was witnessed by Iftikhar Khan, P.W- 9 son of the deceased and Mst. Khurshid Begum, P.W-10 wife of Safdar Khan. They raised hue and cry on which Asghar Khan came down from the roof and ran away from the spot towards his house.
4. The motive for the alleged occurrence was that all the brothers had joint land which was partitioned by 'Jirga'. Akbar Khan, father of the appellant had sold his share of land to one Khan Malik who started raising construction at the spot but Safdar Khan obtained temporary injunction from the civil Court to the annoyance of Asghar Khan, appellant.
5. Muhammad Khalil Statti, Inspector/ S.H.O. after recording the F.I.R. Exh.P.W8/A, on the statement of Raja Khan arrived at the place of occurrence and took the dead body of Safdar Khan into possession and prepared the injury statement vide memo. Exh. P. W-11 /A, and inquest report Exh.P.W11/B and dispatched the dead body for postmortem examination through Mehr Khan, FC.
6. He also took into possession bloodstained earth through memo. Exh.P.E.- and prepared the site plan of the place of occurrence through memo. Exh.P.W-11/C., Then he recorded the statements of the witnesses. On 15-11-1994, he took into possession last worn-clothes of deceased through memo.
7. Exh . P . B. On 22-11-1994 , . he arrested Asghar Khan accused who while in police custody led to the recovery of gun P.4 and one empty cartridge P.5 which were taken into possession through memo: Exh.P.D. He completed the investigation and submitted the challan before the trial Court.
8. The trial Court framed the charge which was denied by the accused and he claimed trial.
9. During the trial, the prosecution examined as malty as 11 witnesses to prove the guik of the accused.
10. The medical evidence was furnished by Dr. Muhammad Shujaat Khan, P.W.-1 who on 15-11-1994 at 8 a.m. conducted the post-mortem examination on the dead body of Safdar Khan deceased and found the following injuries on his person:--
(1) Seven inlet wounds (lacerated) were present on back at the level of left scapula. The edges were inverted. Blackening and charring was present. The wounds were probed and were going inwards and on the right side of the chest.
(2) An inlet wound on 'left upper arm near the elbow, the edges of which were inverted. The blackening and charring were present over it and it measured 2 c.m. above the left elbow.
(3) An outlet wound was present on medial side of left upper arm 1 c.m. above the cubical fossa.
11. The edges were everted and blackening was present.
(4) An inlet wound 5 c.m. above the elbow on left upper arm on lateral side. The edges were inverted, blackening and charring were present.
(5) Abrasion 1 x 1/2 c.m. and 1 x 1 c.m. were present on both knees.
12. The ocular account was furnished by Raja Khan, P.W-8, who was complainant of the case. He supported the version of the F.I.R. and narrated the motive for the occurrence. Iftikhar Khan, P.W-9 son of Safdar Khan, deceased and Mst. Khurshid Begum, P.W-l0. widow of deceased were eye- witnesses of the occurrence. They supported the prosecution story and narrated that on the day of occurrence they were present at the spot and the deceased Safdar Khan was fired at by the accused/appellant from the gate of house of Nawaz Khan and Safdar Khan succumbed to the injuries as a result of fire-arm injuries. Both of them also -narrated the motive for the occurrence about the dispute of the land.
13. Mehr Khan, FC P.W-2 had escorted the dead body of Safdar Khan. deceased for post-mortem examination and also produced his last worn-clothes before the Investigating Officer and attested the recovery memo. Exh. P.B. On 19-11-1994, he also delivered the sealed parcel containing the blood-stained earth at the office of Chemical Examiner on 20-11,-1994. Basharat Ahmad Draftsman P.W-3 had prepared the site plan of the place of occurrence. Akram Khan, P. W-4 had identified the dead body of Safdar Khan at the time of post-mortem examination. Muhammad Nawaz, FC P.W-5 had delivered the sealed parcels given to him by the Investigating Officer to be kept intact in police maalkhana. On 22-11-1994 he handed over the sealed parcels of gun and empty cartridge at the office of Forensic Science Laboratory at Lahore. Muhammad Ilyas. H.C. P.W-6 attested the recovery memo. Exh.P.D whereby the accused had got recovered gun P.4 and empty cartridge P.S. Anayat Ali Khan, P.W-7 had attested the recovery memo. Exh. P.E whereby the Investigating Officer had token into possession the blood-stained earth from the place of occurrence.
14. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.
15. P.F. and that of Serologist Exh.P.G. and of Forensic Science Laboratory Exh. P.H.
16. The statement of the accused/ appellant was recorded under section 342 C.P.C., who denied the allegation and claimed his innocence and false involvement. In reply to Question No,7 as to why the case against him and the P.Ws deposed against him, he replied as under :- "The P.Ws. are related inter se. Raja Khan P.W. was annoyed as to why my father had sold the ancestral property and he in connivance with Iftikhar and Mst. Khurshid Begum falsely involved me in this case as I am the only son of my father. I had absolutely no motive to kill the deceased."
17. The trial culminated into conviction of the appellant as mentioned above, Hence this appeal. While the trial Court has sent up Murder Reference No,89 of 1996 for confirmation of death sentence of the accused/appellant under section 374 Cr.P.C. Both the matters are being decided by this judgment.
18. Learned counsel for the appellant has argued that the motive alleged by the prosecution has not been established by documentary evidence; that even issuance of temporary injunction as claimed by the prosecution has not been placed on record; that there is clear contradiction in medical evidence and the ocular account; that according to the complainant the deceased was fired at by the accused while he was standing on the roof of Muhammad Nawaz and both the eye- witnesses Iftikhar Ahmad, P.W.9 and Mst. Khurshid Begum, P.W-10 had improved their statements after post mortem examination by stating that the accused fired at Safdar Khan deceased from the door of Nawaz Khan to bring the case of the prosecution in line with medical evidence the eye- witnesses are closely related inter se; and to the deceased their statement has not been corroborated by any other independent source and the recovery of gun has been planted and the case of the prosecution is doubtful and the conviction and sentence against the appellant is not sustainable under the law.
19. Conversely, the appeal has been opposed by the learned counsel for the State who has supported the impugned judgment.
20. Heard. Record perused.
21. The alleged occurrence took place at 4 p.m. and the F.I.R. was record at the police station at 6.30 p.m. at a distance of 14 K.M. which shows that the accused was nominated in promptly recorded F.I.R. It was a day light occurrence and the complainant or the eye-witnesses have no previous enmity , for false implication of the accused/appellant or substitution by letting off the culprit. The ocular account furnished by Iftikhar Khan, P.W.-9 and Mst. Khurshid, P.W.-10 who were the natural eye-witnesses of the occurrence having members of the family has A been corroborated by the recovery of gun wherefrom empty P.5 fired at the deceased was taken into possession by the Investigating Officer and the report of Forensic Science Laboratory Exh. P.H. is in positive, therefore, after deep re-appraisal of the evidence, we are convinced that appellant Safdar Khan is the actual culprit and he committed the murder of his real paternal uncle Safdar Khan over a dispute of plot.
22. Mere relationship of the eye-witnesses inter se or with the deceased is no ground to discard their testimony as they have no animosity for false implication of the accused, therefore. we do not find any reason to interfere in the conviction recorded against the appellant.
23. No document has been brought on record by the prosecution to show that Asghar Khan had obtained temporary injunction from the civil Court regarding the land in dispute and it is not clear that what happened at the spur of the moment between the deceased and the accused and the appellant was teenager at the time when' the occurrence took place and has caused only one fire shot and had not repeated the same, therefore, we find that it is not a case of normal penalty of death and the same is reduced to imprisonment for life which will meet the ends of justice and the amount of compensation ordered to be paid by the appellant is, however, maintained, in default thereof he shall further undergo six months S.I. The death sentence awarded to the appellant is not confirmed.
24. Murder Reference is answered in the negative.