KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,1257 of 2000 filed by Nasrullah Khan appellant who was convicted under section 302(b), P.P.C. and sentenced to death with further direction to pay Rs,1,00,000 as compensation and in default thereof to undergo R.I. for six months by the learned Special Judge, S.T.A. Court, Mianwali vide judgment dated 19-8- 2000. Criminal Revision No,658 of 2000 filed by the complainant for enhancement of amount of compensation shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 2-30 p.m. on 19-1-1998 at a distance of 4 kilometers from Police Station Makarwal District Mianwali while the matter was reported by Sargul at 3-30 p.m. the same day though the distance between the place of occurrence and the police station is 4 kilometers.
3. Briefly stated the facts of the case are that on 19-1-1998 the complainant Sargul alongwith Taraz Gul when reached Sultankhel Mor after having attended the fair, Amir Abdullah brother of the complainant who was a student of 7th class was getting education in High School Sultankhel. He too was coming to the house and sat with the complainant over the roof of the wagon. At about 2- 30 p.m. when they reached wagon stand Bilzaranwala, stepped down from the wagon and started towards the village. Amir Abdullah, the brother of the complainant was ahead against them when suddenly from the front side, Nasrullah armed with .30 bore pistol emerged and raised Lalkara that Amir Abdullah would be taught a lesson for refusing to allow Nasrullah commit unnatural offence and simultaneously fired a shot which hit on the left flank of Amir Abdullah and he fell down. In the meanwhile, Abdul Razzaq came at the place of occurrence. Due to Lalkaras of Nasrullah, none stepped forward and he ran away after brandishing his pistol. The occurrence was witnessed by Taraz Gul and Abdul Razzaq. Amir Abdullah succumbed in his injury at the spot.
The motive alleged was that Nasrullah asked the deceased Amir Abdullah to allow him to commit unnatural offence but he refused rather told this incident to his parents who complained and Nasrullah taking it as his insult committed the murder of Amir Abdullah, the deceased in this case.
4. Investigation of the case was taken over by Zafar Iqbal S.I. (PW.9). After recording the F.I.R., he went to the place of occurrence, prepared the injury statement Exh.P.0 and inquest report Exh.P.B in respect of dead body of the deceased Amir Abdullah. He then took into possession the blood- stained earth from the place of occurrence vide. memo. Exh.P.H. prepared rough site plan Exh.P.K and on 21-1-1998 arrested Nasrullah accused alongwith a pistol P.4 secured vide memo. Exh.P.G.
Investigtion of this case was also partially conducted by Allah liar, Inspector (P.W.-10). He recorded the statements of the P. Ws. and submitted the report under section 173, Cr . P. C
5. At the trial, prosecution in order to prove its case produced 10 witnesses in all. Then the learned D.D.A. tendered in evidence report of the Chemical Examiner Exh.P.M, report of the Forensic Science Laboratory Exh.P.N. report of the Serologist Exh.P.O. and closed the prosecution case. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. in which he pleaded innocence.However after conclusion of the trial, the appellant was convicted and sentenced as stated above.
6. Learned counsel for the appellant after having read the entire prosecution evidence and other material available on record submits that F.I.R. was recorded after due deliberation and consultation and that the motive given in the F.I.R. has not been proved by the prosecution. Further submits that it a case of two versions and if both the versions are put in juxta position, the version given by the appellant seems to be more probable and near to the truth. Adds that in fact it was an un-witnessed occurrence, it was a case of dishonest investigation, there is conflict between the ocular account and medical evidence and that number of the F.I.R. is not mentioned in the brief facts of the inquest report. Further adds that on the date of occurrence the age of the appellant was 17 years and 7 months. Concluding his submissions learned counsel submits that it being a case of single shot, is a mitigating circumstance to award the lesser penalty and that in any case, it is not a case of capital punishment.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that it was a case of promptly lodged F.I.R. and that Abdul Razzaq P.W.7 is most independent witness. Further submits that the appellant at the time of occurrence was 24/25 years of age and that in nutshell the prosecution has proved its case against the appellant to its hilt. They both support the judgment of the trial Court.
8. We have heard learned counsel for the parties and have gone through the record. In the instant case, there are two versions, one given by the prosecution and the other set forth by the convict appellant. At this stage, we would like to reproduce here reply to question No,6 given by the appellant in his statement under section 342, Cr.P.C.
"I have got very good relations with the complainant party. The complainant party is our tenant.
The deceased was a boy of bad character and he was habitual of committing sodomy. I asked him to desist from such activities which he felt and asked me that I was defaming him. On the day of occurrence, I had gone to the house of my maternal uncle Toti Marjana who was ailing and I also met the mother of the deceased. When I was coming back, when I reached at adda Bulzian-wala, the deceased was present there with .30 bore. He confronted me and he wanted to drag me in Sirkanda at the pistol point. He took me in the Sirkanda for 4-5 steps. I with very cleverness caught hold of his hand and twisted. The pistol was loaded which went off which hit the deceased in his abdomen. It was an accident. Otherwise I have no intention to kill the deceased. If I would not caught hold of his hand and tried to snatch the pistol from him, he would have committed sodomy with me and also killed me. Nobody was present there. I and the deceased were only present there.
After the occurrence, I went ,to my house straight and narrated the occurrence to my parents. Awal Ghameen my brother and myself went to the police station and reached there at 5.00 p.m. I narrated the occurrence to the Police and meanwhile the complainant party reached there from Isa Khel. The complainant party was not aware of the facts of the occurrence and the complainant in collusion with the local Police' and they fabricated this case. None from my relative was joined in the investigation due to mala tide of the Police. The motive against me is false and was cooked up later on by the police and the complainant party Sargul and Abdul Razzaq are the contractors of Fish and have their business at Karachi. Abdul Razzaq P.W. was present in Karachi on the day of occurrence and on the next day of the occurrence he came to District Mianwali by air and then came to the police station and posed himself to be an eye-witness of this occurrence. I was at that time present in the police station. Abdul Razzaq is a literate person but he thumb-marked the recovery memo.. Pistol Exh.P.4 was of the deceased and was produced by the complainant party during the investigation of the case. The dead body of the injured was taken to the hospital by Abdul Majeed driver of wagon No,813/KK. I am a poor man. I have been falsely implicated in this case. I have been challaned due to dishonest investigation of the police."
9. Two eye-witnesses. namely, Sargul brother of the deceased (P.W.6) and Abdul Razzaq (P.W.7) who had no relation with the A complainant party were examined by the prosecution. Occurrence had taken place at 2-30 p.m. on 19-1-1998 and the matter was reported to the police in the police station at 3-30 p.m. on the same day despite distance in between being 4 kilometers. The contention of learned counsel for the defence that number of the F.I.R. was not given in the brief facts of the inquest report is without any force for the reason that no doubt the number of the F.I.R. is not given in the brief facts of the inquest report but the Investigating Officer has stated that he recorded the F.I.R. in the police station and then reached to the place of occurrence where the dead body was lying. It can merely a lapse on the part of the Investigating Officer.
10. There is no conflict between ocular account and the medical evidence as suggested by learned counsel for the appellant. The complainant is a rustic villager. He has given the distance between the deceased and the appellant 2 Karams. It may be not that when a fire is shot, the person firing has to step forward and then also stretch the tire-arm. In the F.I.R. the nature of the fire-arm and the seat of the injury was duly given by the complainant.
No crime empty of .30 bore pistol having been recovered from the spot, the alleged recovery of ..30 bore pistol from the appellant loses its significance. It was not an un-witnessed occurrence as suggested by learned counsel for the appellant because apart from Sargul, brother of the deceased, Abdul Razzaq was examined as P.W. 4 who is most independent witness and had no motive whatsoever to falsely implicate the appellant. It is a case of single accused so there is no question of substitution. The birth certificate having been tendered by the appellant is not admissible in evidence because it was not tendered properly as the author of the same was not produced to prove its contents. Moreover, the appellant did not mention his age in his statement under section 342, Cr.P.C. though he was being represented by a counsel.
12. The irresistible conclusion of the above discussion is that we are fully satisfied that the prosecution has been successful in proving its case against the appellant to its hilt but we are also mindful of the fact that the motive given in the F.I.R. by the proseuction is not the whole truth. In the F.I.R., the complainant stated that the deceased had complained him against the appellant few days prior to the occurrence but while appearing before the trial Court he stated that the deceased had told him the incident a day prior to the occurrence. To our mind what happened just prior to the occurrence, nobody knows rather the motive remained shrouded in mystery. This coupled with the fact that the appellant did not repeat the shot make out a case of mitigating circumstance in favour of the appellant for lesser penalty.For this view, guidance can be had from the case of Muhammad Arshad and 2 others v. The State(PLD 1996 SC 122) in the circumstances we though maintain the conviction under section 302(b), P.P.C. but reduce the sentence to death into one imprisonment for life with the benefit of section 382-B, Cr.P.C. However, the amount of compensation is maintained. Death sentence of Nasrullah appellant is NOT confirmed.
Criminal Revision No, 758 of 2000 for enhancement of amount of compensation is dismissed.