' MUHAMMAD NAWAZ ABBASI, J.---The appellant namely Khalid Mahmood son of Mahmood Sultan was tried under section 302, P.P.C. For the charge of the murder of Mst. Nazia Shaheen by a learned Additional Sessions Judge at Rawalpindi. The learned trial Judge having found the appellant guilty of the charge vide judgment dated 1-9-1997 conyierecd and sentenced him to death with a direr ion to pay a sum of Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default of the payment of compensation to undergo R.I. For six months.
2. The appellant has challenged his conviction and sentence through Criminal Appeal No,129 of 199/, whereas learned trial Judge has sent Mtirdi Reference No,210 of 1997 under section 374, Cr.P.C.
For confirmation of death sentence. The complainant of the case preferred Criminal Revision No,86 of 1997 for enhancement of the amount of compensation under section 544-A, Cr.P.C. This single judgment proposes to dispose of criminal appeal along with criminal revision and murder reference.
3. The case against the appellant was registered under section 302, P.P.C. Vide Exh.P.E on the report lodged by Saleem Akhtar son of Fazal Elahi (P.W.8) father of Mst. Nazia Shaheen with the following narration of facts:- "I am employed in 502 Workshop, Rawalpindi, and living in Banda Nangial with my family consisted upon my wife, seven daughters and one son. The eldest daughter namely Mst. Nazia Shaheen was of the age of 14/15 years. Mahmood Sultan son of Multan Khan, his co-villager demanded the hand of Mst. Nazia Shaheen for his son Khalid but I refused as my daughter Mst. Nazia Shaheen was already engaged with Muhammad Banaras son of my sister-in-law. The refusal of hand of my daughter for Khalid was badly felt by said Khalid and a few days thereafter said Khalid warned me that he had not taken right decision of giving hand of Mst. Nazia Shaheen to Banaras and she would not be able to join Muhammad Banaras as his wife. I was present in my house with my wife and children at about 8.50 p.m. When Mst. Nazia Shaheen was busy in her domestic affairs in the courtyard of the house, Khalid son of Malunood Sultan armed with .12 bore gun, while appearing at the main gate of the Haveli, which was without shutter made two successive shots at Mst. Nazia Shaheen, who sustained injuries on left flank. On our hue and cry, my nephew Faisal Shahzad son of Muhammad Ansar who on reaching at the spot also witnessed the occurrence. The accused escaped from the place of occurrence and Mst. Nazia succumbed to the injuries at the spot. The motive behind the occurrence was the refusal of the hand of Mst. Nazia Shaheen to Khalid, who having felt insulted took the life of Mst. Nazia."
4. On receipt of the information of the occurrence, Tafoor Akhtar, Sub-Inspector P.W.2 the then Station House Officer, Police Station Sadar Bairooni, Rawalpindi, while reaching at the place of occurrence inspected the dead body of Mst. Nazia and collected one empty from the courtyard of the house of Saleem Akhtar son of Fazal Elahi and took the same into possession vide memo.
Exh.P.G. The S.H.O. Prepared the site plan and also took into possession blood-stained earth from the spot vide memo. Exh.P.B. The Investigating Officer prepared the inquest report Exh.P.H of the deceased and recorded the statement of the complainant, on the basis of which the case was registered. The Investigating Officer then dispatched the dead body to mortuary for post-mortem examination. Later, he took into possession the blood-stained last worn clothes of the deceased and a sealed parcel containing the pellets produced before him by Zulfiqar, H.C., which were taken into possession vide memo. Exh.P.J. The S.H.O. Arrested Khalid Mahmood and having recovered gun P.6 with a cartridge P.7 on 12-6-1995 at his instance took the same into possession vide memo. Exh.
P. D and prepared rough site-plan of the place of recovery. The S.H.O. After completion of formal investigation submitted the Challan.
5. Dr. Zafar Manzoor, Medical Officer D. H. Q . Hospital, Rawalpindi, (P.W .1) conducted the post- mortem examination on the dead body of Mst. Nazia Shaheen on 28-5-1995 and traced the following injury on her person:- "There were multiple lacerated wounds of fire-arm entry .5 x .5 c.m. Each with burning around the margins on an area of 28 x 24 c.m. On the left side of chest, abdomen 8. c.m. From umbilicus and 2 c.m. From the posterior side of left iliac crest and 26 c.m. From the left shoulder joint."
' During the post-mortem examination, the doctor collected twenty-five pellets from stomach, small intestines, and larie intestines, left kidney, spleen and left lung, which were handed over by him to the constable who escorted the dead body. In the opinion of the doctor, the injuries caused to the deceased damaged the vital organs of the body and were sufficient to cause death in the ordinary course of nature. The injuries were found ante-mortem to have been caused within duration of 15 to 20 hours. In cross-examination the doctor has stated that he was positive that all the multiple injuries were the result of single fire-arm shot. The prosecution in addition to the direct evidence of Saleem Akhtar P.W.8 father of Mst. Nazia Shaheen and Muhammad Mumtaz P.W.9, her paternal uncle, also placed reliance on the motive behind the occurrence, the medical evidence and recovery of crime weapon as supporting evidence.
6. The appellant in his statement under section 342, Cr.P.C. While denying the charge pleaded innocence and in reply to question "why the case against you and why the P.Ws. Deposed against you" made the following answer:- "The P.Ws. Are not only related with the complainant but they are interested/inimical against me. In fact, Mst. Nazia Shaheen (deceased) wanted to marry with me but the complainant party was not agreed to it as such they (complainant) party themselves assassinated Mst. Nazia Shaheen and involved me in the present false case due to previous enmity, although I am quite innocent and the prosecution story as alleged against me is mere a concoction."
7. Learned counsel for the appellant has made the following contentions:-That as per prosecution story, the accused fired at the deceased from outside the Haveli and in the evidence of eye- witnesses and as per site-plan, the existence of outer wall of the Haveli was shown which would show that while firing at the deceased from outside the gate in the courtyard, it was not possible for the witnesses to identify the assailant in the dark.
(a) That the occurrence took place at 8-50 p.m. During the month of May 1995, when it was complete dark and there was no evidence of the availability of electricity or any other type of light at the place of occurrence to identify the assailant. Learned counsel emphasized that how the witnesses could possibly identify the assailant in the darkness of the night from inside the Haveli and that the enmity between the parties prior to the occurrence due to criminal cases being admitted, the possibility of false implication would not be ruled out.
(c) That according to the prosecution version given in the F.I.R. As well as in the statements of the witnesses, two shots were fired by the assailant at the deceased whereas only a single injury was found on her person and further one empty was recovered from the spot. Learned counsel submitted that the recovery of empty from the barrel of the gun at the time of recovery of gun was shown only to strengthen the prosecution version given in the F.I.R. That two shots were fired but the prosecution story would be negated by the fact that the deceased sustained only one injury and only one empty was recovered from the spot. Learned counsel concluded that the conflict of ocular account with medical evidence would show that it was an unseen occurrence.
(d) That the appellant had no motive to kill the deceased rather he as per prosecution story was interested in the hand of the deceased , and that the true story was that on the refusal of the deceased to enter into a marriage contract with any other person except Khalid, the father and brother of Mst. Nazia themselves having killed her lodged a false report against the accused being member of their opponent party. Learned counsel submitted that the killing of the deceased by her family members is supported by the fact that there was blackening on the injury, which would show that she was fired at from a close range, whereas the accused allegedly fired at the deceased from a reasonable distance. Learned counsel in the alternative submitted that the motive having not proved beyond doubt and being not known that what was the real cause of the murder and further as per allegation of the prosecution, the appellant having liking for the 'deceased could not tolerate the refusal of her hand and in consequence thereto decided to take her life would create a reasonable doubt about the correctness of motive and, therefore, there was a strong mitigation in favour of the appellant for lessor punishment.
8. Learned counsel representing the complainant on the other hand has contended that the ocular account was furnished by the inmates of the house, who were natural witnesses of the occurrence and that in the site-plan Exh.P.E, it was shown that the Haveli was electrified and electric bulb was installed outside the Haveli and in the courtyard at different points and that electric light being available, the assailant was identifiable. Learned counsel conceded that there was no mention in the F.I.R. Or in the statements of the eye-witnesses that the electric light was available in the courtyard at the time of occurrence but the defence has not put any question either' to the witnesses or to the Investigating Officer or the draftsman who prepared the site-plan at the pointation of the eye-witnesses that electric light was not available in the Haveli. Learned counsel contended that the defence having not cross-examined any witness that the identification of the accused was not possible due to the non-availability of light in the Haveli at the relevant time, conceded the availability of the light and the identification of the accused by the witnesses.
Learned counsel next contended that the recovery of empty from the place of occurrence and its matching with the weapon subsequently recovered at the instance of the accused would be another strong place of evidence in the hand of the prosecution against the appellant. It was argued by the learned counsel, that since single barrel gun was used in the occurrence, therefore, the empty of second shot fired by the accused remained in the chamber of the gun, which was recovered with the gun. Learned counsel argued that in the given circumstances, it was not possible for the witnesses to be exact regarding the hitting of both shots to the deceased, therefore, the conflict of medical evidence with eye-witness account regarding the number of injuries on the person of the deceased would not be material to disbelieve the ocular evidence.
Learned counsel next argued that only one case under section 324, P.P.C. Was pending between the parties before the present occurrence and the remaining cases mentioned in the evidence were registered subsequently and therefore, there was no force in the argument that the appellant was implicated due to the enmity. Learned counsel added that the accused being interested in Mst. Nazia Shaheen, on refusal of her hand was revengeful and out of jealously decided to take her life. The learned counsel submitted that in any case, the weakness or absence of motive would not be a mitigating circumstance for lesser punishment. Learned counsel for the State while adopting the arguments of the learned counsel for the complainant has sought dismissal of appeal and confirmation of death penalty.
9. The parties undoubtedly remained in litigation with each other but there is nothing on the record to show that except a case under section 324, P.P.C., any other case inter se parties related to the period prior to the present occurrence was pending and the criminal cases registered subsequent to the present occurrence would not be a ground to plead that the accused was implicated in a false case due to the enmity. In the case under section 324, P.P.C., the present appellant was neither an accused nor a witness and, therefore, it is not understandable that why the father and maternal uncle of the deceased would involve the appellant in the murder of their daughter through substitution and spare the actual culprit. The ocular account in the present case furnished by the real father and maternal uncle of the deceased, who being inmates of the house were natural witnesses was independent and no disqualification could be attached with their testimony to exclude their evidence from consideration. The fateful occurrence took place at 8-50 p.m. During the month of May 1995, when the people usually are available in their houses and this the presence of the deceased in the courtyard of the house at that time was natural and if the electricity light was not available, the light in any other form in the courtyard at that time would be available. This is noticeable that availability of electric light has been shown at different points in the site-plan and the defence did not challenge the correctness of the site-plan by putting any question to any of the witness and plea that it was darkness in the house or that the light was not available in the courtyard of the house was not supported by any evidence. We may observe that no presumption relating to the darkness in the courtyard could be raised in absence of any question put to any witness in this behalf by the accused and thus no such finding regarding the darkness could be given without being supported by the evidence on record or by attending circumstances and therefore, the contention of learned counsel that due to darkness, the appellant was not identifiable was without substance. Instead in the light of the given situation and evidence available on record, a strong presumption can be raised that electric light or any other light at the relevant time was available in the house as the inmates of the house were sill busy in their usual work and it would be understandable that in absence of electric light, the people always made alternate arrangements for light. We are, therefore, hold that identification of the accused was beyond doubt. It is in the F.I.R. As well as in the statements of the witnesses that there was a wall around the Haveli and the gate in the wall of Haveli was without shutter and thus it could be visualized that the shot was infinitely fired through the gate from outside. We may observe that it would not be possible for the witnesses in the given situation to definitely say that both the shots fired by the accused hit the deceased. The possibility that the accused while decamping from the place of occurrence fired second shot which did not hit the deceased cannot be ruled out, and thus in such situation there would be no conflict of the medical evidence either with ocular account or the recovery of the weapon of offence. The motive set up by the prosecution seems to be farfetched, as it is rare that a person on refusal of hand of a girl would be revengeful against the said girl and would take her life. However, it is not known that under that circumstances' and for what reason, the accused fired at the deceased and since the mystery behind the occurrence was not brought on record, therefore, it would be a strong mitigating circumstance in favour of the appellant for lessor punishment. We, therefore, while keeping in view that the injury was the result of single shot and the motive set up by the prosecution shrouded in mystery, the firing of the accused, a young man, at the deceased for whom he had liking for the reason other than the one given by the prosecution being not ruled out, hesitate from confirming the sentence of death awarded to the appellant by the learned trial Judge. Consequently, we while maintaining the conviction of the appellant for the charge under section 30Z P.P.C. Reduce his sentence from death to life imprisonment and dismiss this appeal.
10. Learned counsel for the complainant at this stage has submitted that the compensation awarded to the legal heirs of the deceased under section 544-A, Cr.P.C. Was inadequate and the same .May be enhanced. We having considered the quantum of compensation are of the view that it should be reasonably enhanced. We, therefore, admit the criminal revision and while giving notice to the accused through his counsel dispose of the revision as notice case with enhancement of compensation from Rs,50,000 to Rs,1,00,000 to be paid to the legal heirs of the deceased and in default of the payment of compensation, the appellant shall suffer simple imprisonment for six months. The amount of compensation shall be recoverable as arrears of land revenue.