1. ' BASHIR A. MUJAHID, J.--- Zulfiqar alias Zulfi alias Jamshed alias Sain son of Allah Yar has challenged judgment dated 1-8-1996 passed by learned Additional Sessions Judge, Lahore whereby he was convicted under section 302, P.P.C. And sentenced to death for commission of murder of Rashid Ahmad. He was also fined to Rs,50,000, if recovered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr. P.C. And in default thereof to six months'
2. S.I.
3. ' The occurrence which resulted into murder of Rashid Ahmad took place on 25-12-1993 at 8-13 p.m.
4. In the house of the deceased in Mohallah Islamnagar, Walton Road, Lahore and F.I.R. No, 338 of 1993 Exh.P.J was recorded on the statement Exh.P.B, of Muhammad Mohsin, P.W.4, son of the deceased, wherein it was stated that the complainant was residing with his father at House No, 26/27-E Mohallah Islampura. Faisal Street, Walton Road, Lahore and for last 1/4 months he was working as a tailor in Shop No, 80/H, in Defence Market, Lahore and his father Rashid Ahmad was working as an Electrician by profession and one boy whose name was Jamshed and was resident of District Jhang had visiting terms with the complainant and developed acquaintation with his father Rashid Ahmad. Jamshed was jobless and his father had kept him for last about one month. During this time Jamshed used to wandering about during the daytime and at night used to come to their house to sleep. He had illicit mouzer with him. Rashid Ahmad, father of the complainant used to refrain him for keeping illicit arm. On 25-12-1993, at 8-30 p.m., father of the complainant along with Jamshed was sitting on a cot inside a room when the complainant along with Aziz-ur-Rehman, P.W.5 resident of Madina Colony were preparing the tea in the Veranda. Rashid Ahmad again objected Jamshed for keeping illicit arm on which Jamshed became infuriated and all of a sudden took out mouzer from folder of his shalwar and fired at Rashid Ahmad hitting on his right side of chest, who fell down after receiving the injury. Aziz-ur-Rehman, P.W.5, and the complainant tried to apprehend the accused but he fled away from the spot while firing. Rashid Ahmad was put on cot by them but he succumbed to the injures.
5. ' Hassan Ali, A.S.I. P.W.15 who was on patrol duty after receiving the information about the occurrence arrived at the spot and found the dead body of Rashid Ahmad lying on a cot and he recorded the statement of Muhammad Mohsin, complainant Exh.P.B. And sent the same for recording of formal F.I.R. He started the investigation, collected the blood-stained earth vide memo.
6. Exh.P.F and empty P.8 lying at the spot vide memo. Exh.P.G. He prepared the inquest report Exh.P.1, and dispatched the dead body for post-mortem examination. He came to know about the accused who was arrested in some other case and was in jail. He took his custody from jail and got his physical remand. On 17-1-1994 the accused pointed out the place of occurrence on which memo. Was prepared vide Exh.P.H by the Investigation Officer. This witness took into possession last worn clothes of the deceased produced by Akbar Ali, FC after post-mortem examination vide memo. Exh.P.A. He recorded the statements of the prosecution witnesses under section 161, Cr.P.C., completed the investigation and submitted the challan.
7. ' The accused pleaded not guilty to the charge framed by the trial Court and claimed trial.
8. ' During the trial, the prosecution examined as many as 15 witnesses to prove the guilt of the accused.
9. ' Medical evidence was furnished by Dr. Muhammad Zahid Bashir, P.W.14, who on 26-12-1993 at, 12- 45 p.m. Had conducted the post-mortem examination on the dead body of Rashid Ahmad and found the following injuries on his person: -- 1(a) Fire-arm wound of entry 1 x 1 c.m. On front of right side of chest with an abrasion collar 1 c.m.
10. Long on the right side of entry wound, 6.5 c.m. From the midline and 8.5 c.m. Above the right nipple.
11. 1(b) Fire-arm wound of exit 1 x 1.5 c.m. On lateral side of left posterior chest, 16 c.m. From posterior mid line and 16 c.m. Above the left iliac crest.
12. ' The ocular account was furnished by Muhammad Mohsin, P.W.4 and Aziz-urRehman, P.W.S. Muhammad Mohsin, P.W.4 was complainant of the case and son of the deceased. He corroborated the version of the F.I.R. And staetd the story narrated by him in the F.I.R. Aziz-ur-Rehman was also eye-witness of the occurrence. He supported the prosecution case, His statement is in line of the statement of the complainant. Muhammad Saleem, S.I P.W.12 had recorded the formal F.I.R. Exh.P.J on the basis of statement Exh.P.B of the complainant. Syed Imran Ali Bukhari, P.W.11 was Draftsman, he had prepared the site plan of the place of occurrence. Muhammad Nawaz was examined as P.W.6, he stated that on 10-1-1994 he was on patrol duty along with Abdur Razaq, FC and at about 11-00 p.m. He arrested the accused being suspected who was coming on a bicycle and on his personal search pistol P.7 along with 5 live bullets P.6/1-5 was recovered from his possession which was taken into possession vide memo. Exh.P.0 and the person arrested by them disclosed his name as Zulfiqar. Alias Zulfi, alias Jamshed alias Sain resident of Chak No, 168 District Sargodha and was handed over to Muhammad Anwar, A.S.I. P.W.B. Bicycle was also taken into possession vide memo.
13. Exh.P.C. Muhammad Anwar, A.S.I. P.W.8 after arresting the accused got the case registered under section 13 of Arms Ordinance, 1965 and sent him in judicial lock-up. Muhammad Sarwar, P.W.13 attested the recovery memo. Exh.P.H.
14. ' The prosecution evidence was closed by tendering evidence report of Chemical Examiner Exh.P.P, Serologist Exh.P.Q and that of Forensic Science Laboratory Exh.P.O.
15. ' The statement of the accused/ appellant was recorded under section 342, Cr.P.C., who denied the allegations and professed his innocence and false involvement due to suspicion. In reply to Question No, 10 as to why the case against him and P.W.s deposed against him, he replied as under: - "The P.Ws., have made statements only on the basis of suspicion. They are also close relatives of the deceased. The police just to show its performance has falsely involved me in this case."
16. ' In reply to Question No, 11 anything else, he stated as under: - "I am innocent. I had been working as a Labourer with Rashid Ahmad deceased who was an electrician. 4/5 days prior to the occurrence had turned out me as 1 demanded my remuneration.
17. He used to patronize me and I had very cordial relations with him. There was no reason at all for murdering him."
18. ' The trial culminated into conviction of the accused as mentioned above, who has challenged his conviction and sentence through Criminal Appeal No, 757 of 1996 while the trial Court has sent up Murder Reference No, 35 of 1997. Both the matters are being decided by this single judgment.
19. ' Learned counsel for the appellant has argued that the F.I.R. Was not recorded at the police station, therefore, possibility of registration of case after preliminary investigation cannot be ruled out; that both the eye-witnesses Muhammad Mohsin and Aziz-ur-Rehman are closely related inter se and the deceased; that Muhammad Mohsin is son of the deceased while Aziz-ur-Rehman is brother-in- law and maternal-uncle of the complainant and their statements have not been corroborated from any other independent source: that particulars of the accused were not given correctly in the F.I.R. And how was implicated on the basis of suspicion; that the case against the appellant is doubtful and he be acquitted by extending benefit of doubt.
20. ' Conversely, the appeal has been opposed by the learned counsel for the State.
21. ' Heard. Record perused.
22. It is correct that Hassan Ali, A.S.I. Arrived on his own at the place of occurrence after receiving the information about the occurrence and recorded the statement Exh.P.8 of Muhammad Mohsin at the spot, but we do not see any illegality or material irregularity in the registration of the case. The accused was nominated in the statement Exh.P.8 and there is no reason for his false implication or substitution by letting off the real culprit. The accused admitted in his statement recorded under section 342, Cr.P.C. That he was working with the deceased. Although Muhammad Mohsin is son of the deceased while Aziz-ur-Rehman P.W.5 is also close relative of the complainant but mere relationship of the P.Ws., is no ground to disbelieve their testimony if they are not interested and inimical towards the accused for his false implication. The appellant is nominated in the promptly recorded F.I.R. He was arrested in some other case wherein he made disclosure for commission of the instant case. The prosecution case has been established against him by ocular account corroborated by medical evidence. We do not find any reason to interfere in the conviction recorded against him.
23. ' As far as the sentence is concerned, the motive narrated by the complainant was that the accused was refrained for keeping illicit arm which infuriated the accused on which he tired at the deceased. The complainant Muhammad Mohsin, P.W.4 and Aziz-ur-Rehman P.W.5 admittedly were not present in the room and according to their statements they were preparing tea in the Veranda, therefore, there might have something occurred at the spur of the moment. It is not known what conspired between the deceased and the accused immediately before the occurrence. The accused fired only one shot and had not repeated the same. The alleged pistol recovered from his possession was not found in working condition as per report of Forensic Science Laboratciry Exh.
24. P.0, .Therefore, keeping in view all the circumstances of the case, we find it is a fit case where the normal penalty of death is not proper, therefore, the same reduced to imprisonment for life which will meet the ends of justice. However, sentence of compensation is maintained. Benefit of section 382-B, Cr.P.C. Will be available to the appellant. The appeal is dismissed with the above modification.
25. ' Murder Reference is answered in the negative.
26. ' Sentence reduced.