' ABDUR RAUF KHAN LUGHMANI, J.--- Saadullah Jan, son of Khan Zada, was tried under section 302, P.P.C. For having committed "Qatl-i-Amd" of one Naqibullah Khan by firing with his pistol by the learned Sessions Judge, Bannu, who at the conclusion of the trial found him guilty of the offence and convicted and sentenced him to death, subject to confirmation by the High Court and to pay an amount of Rs,1,00,000 (Rupees one lac) as compensation to the heirs of the deceased, vide order, dated 11-6-2001. The convict has challenged his conviction and sentence by way of filing Appeal No,40 of 2001. Murder reference No,3 of 2001 and criminal appeal are proposed to be disposed of by common judgment.
2. F.I.R. Exh.P.A. Was recorded on 17-5-1996 at about 6-20 a.m. By Said Khumar, S.H.O. (P.W.7) at the instance of Muhammad Yasin (P.W.5) who alleged that on. The eventful morning he and his brother Naqibullah Khan and Azmatullah took morning rea. Naqibullah used to run drug store, while Azmatullah was running grocery shop. They both left the house for their respective shops and he followed them. When he came out of the house, he saw the appellant Saadullah Jan duly armed with pistol entering the shop of Naqibullah. He heard the report of fire-shot. He and his brother Azmatullah (P.W.6) rushed there and tound their brother in a pool of blood breathing his last. The appellant ran away. When they tried to provide some help to the injured brother, he expired. Motive is stated to be a brawl between the deceased and the appellant which was subsequently patched up.
3. Necessary investigation was done by Said Khumar S.H.O. (P.W.7) who proceeded to the spot, prepared the injury-sheet and inquest statement in respect of the deceased and sent the dead body to the mortuary for post-mortem examination. During the spot inspection, blood-stained earth, one empty of .30 bore freshly discharged and spent bullet were recovered from the inside of the shop. He prepared the site plan at the instance of the eye-witnesses. Statements of witnesses were also recorded. The appellant was arrested on 17-5-1996 and was produced before Akbar Khan, Magistrate (P.W.9) on 21-5-1996. The confessional statement was recorded. One Khan Zada, father of the appellant, produced .30 bore pistol with a' fitted magazine and the same was taken into possession as well.
4. The appellant was previously tried under the provisions of Suppression of the Terrorist Activities (Special Courts) Act, 1975 and awarded death penalty by the learned Judge, Special Court, vide judgment, dated 12-10-1998 which was impugned before the High Court. The High Court on 18-11- 1999, set aside the conviction and sentence of the appellant and remanded the case to the learned Sessions Judge for trial holding that the appellant could not have been tried under the provisions of the Suppression of Terrorist Activities (Special Courts) Act, 1975. During the second trial 9 P. Ws. Were examined. There is nothing significant in the statement of the appellant recorded under section 342,Cr.P.C. Suffice it to mention that about the confession he stated that it was the outcome of coercion and collusion of the police. However, no evidence was called in defence.
5. Mr. Dost Muhammad Khan, learned counsel for the appellant assailed the prosecution case on the following grounds:-
(a) The confession has to be discarded as the Magistrate did not disclose his identity, the appellant was not made to understand that he would not be remanded back to the police custody if he did not make confession and that no question was put to the appellant regarding period of his police custody. He also submitted that the Investigating Officer after 3rd degree method procured the confession.
(b) Ocular testimony consisting of P.Ws. 5 and 6 is not reliable being interested and close relatives of the, deceased. The claim of production of pistol by the father of the appellant is fake and fictitious as the house was searched on the date of the arrest of the appellant and nothing was recovered and further Khan Zada was not produced in the witness-box by the prosecution.
6. The appellant was arrested on 17-5-1996, while he was produced before the Magistrate on 21-5- 1996 and thus remained in custody of the police for 5 days. Akbar Khan, Magistrate (P.W.9) conceded in the cross-examination that he only put questions which appeared in the questionnaire for the purpose of satisfying himself. He further admitted that except the certificate and question, he did not make any disclosure to the appellant. Again, he admitted to have not mentioned that he disclosed his identity to the appellant. There is nothing in the questionnaire that he put question about the period of custody or that he disclosed his identity. Similarly he never assured the appellant that in case he did not make confession, he would not be remanded to the police custody. This being the position, for safe administration of justice, we rule out of consideration the confessional statement. No doubt P.Ws. Muhammad Yasin and Azmatullah are brothers of the deceased but mere relationship is not enough to discard their testimony. There is no previous blood feud enmity or so as to come out with a false charge of murder against the appellant. Appearing in the witness-box P.W. Yasin stuck to his version given earlier in the report and he could not be shattered in the cross-examination. Similarly Azmatullah P.W.6 corroborated the testimony of P.W.5 on all material aspect and nothing damaging could be brought out during the cross-examination. The three brothers including the deceased had their morning tea before the tragedy and medico-legal report confirmed as the stomach of the deceased contained fluid diet. One fire-shot was heard and according to Dr. Khalid Farooq, Medical Officer, D.H.Q. Hospital, D.I.
Khan (P.W.4) the deceased suffered fire-arm injury 1/4" x 1/4" at the back of left side of skull with corresponding exit wound of 1/3" x 1/3". One empty of .30 bore was recovered from the spot which was found by the Ballistic Expert to have been fired from the pistol produced by the father of the appellant. One spent bullet was also recovered from the inside of the shop. The site plan revealed that the three brothers lived in one house and towards the west is the shop of the deceased which is in fact a portion of the house. Similarly the shop of P.W. Azmatullah is adjacent to the house towards the north. Muhammad Yasin P.W. Was at point No,"A" which is hardly at a distance of 8 paces from the place of the accused when he was seen by the former. No doubt P.Ws. Had not seen the firing with their own eyes but. In the circumstances of the case it would hardly make any difference. Azmatullah P.W.6 claimed that they had opened their shops and he happened to be outside when the appellant came and entered into the shop of. Naqibullah. At that time P.W. Yasin Khan had also come out of the house. He heard the report of fire-shot and they both rushed there; saw the accused decamping and inside the shop they found their brother lying injured in pool of blood. None else was present. The conclusion is inevitable that the culprit was indeed the appellant and none else. The pistol was produced by the father of the appellant on 23-5-1996 to the Investigating Officer in the presence of Mir Baz F.C. And Muhammad Ali (P.Ws.) P.W. Mir Baz F.C. Did state that Khan Zada produced the .30 bore pistol Exh.P.1 to the Investigating Officer. Non- production of Khan Zada does not reflect on the prosecution case for the reason that being father of the appellant, he could not be expected to give evidence on a capital charge against his son. It is a matter of common knowledge that people are generally reluctant to be a witness in criminal cases. The pistol and the crime-empty recovered from the spot was sent to the Fire-arm Expert who reported that the crime-empty was wedded to the pistol. The house was searched on the date of the arrest of the appellant and if nothing was recovered on search that does not mean that the pistol was not used. The pistol is a small weapon which can be kept hidden easily.
7. Considering the ocular testimony, the various recoveries, report of the Expert and the medical evidence, we are- clear in our mind that the prosecution has successfully established the charge against the appellant. Taking up the question of sentence, the appellant was arrested on 17-5-1996 and he was sentenced to death on 12-10-1998 and he remained in the death cell as condemned prisoner uptil 18-11-1999 when the case was again remanded for retrial to the Court of Session.
Again he is in death cell, since 11-6-2001. Twice he faced the rigors of trial since 17-5-1996, just one shot was fired although he could resort to further firing. Further relying on the case of Iftikhar Ahmad alias Gulla v. The State PLD 1990 SC 820 and principles laid down in the case of Bahadur Ali and others v. The State and others 2002 SCM R 93, we feel that the sentence of imprisonment for life would meet the ends of justice. Accordingly the death sentence is altered to one for imprisonment for life with the benefit of section 382-B, Cr.P.C. The award of compensation under section 544-A, Cr.P.C. Is maintained. Death sentence is not confirmed.