FAZAL-UR-RAHMAN, J.---Appellant Bashir Ahmed son of Muhammad Rahim was convicted by the learned Sessions Judge, Kalat at Mastung vide judgment dated 20-4--2000 in crime F.I.R. No.40 of 1999 by Levies Thana, Soorab for offence under section 302, Qisas & Diyat Ordinance read with sections 109/34, P.P.C. For Qatl-i-Amd of deceased Ghulam Dastagir son of Murad Muhammad having been committed on 28-11-1999 at about 6-00 p.m. In Jori Naddi, Soorab and was sentenced to suffer imprisonment for 14 years' R.I. And to pay fine of RS.2,OO,OOG and in default of payment of fine to further undergo R.I. For a period of one year. The amount of fine in case of recovery was ordered to be paid to the legal heirs of deceased. The benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellant. The petitioner Murad Muhammad son of Ghulam Jan filed criminal revision petition under sections 435, 439, Cr.P.C. For enhancement of sentence against the judgment of the trial Court in Session Case No.4 of 2000. Since both the appeal and revision arise out of one and the same judgment therefore, they are taken together and will be disposed of by one and the same judgment.
2. The occurrence is stated to have taken place on 28-11-1999 at about 6-00 p.m. At Jori Naddi, Soorab. The report of this incident was made by one Mian Khan against unknown accused persons and the same was incorporated in the F.I.R. Being Crime No.40 of 1999 under section 302, Qisas and Diyat Ordinance read with sections 109, 34, P.P.C. After registration of the case P.W. Khuda Bakhsh who was at the relevant time posted as Naib Tehsildar, Soorab went to the place of occurrence alongwith P.Ws. Dr. Muhammad Karim and Dr. Abdul Samad and the dead body is stated to have been examined by both the doctors vide Exh.P.8-A. It is stated that the dead body was handed over to P.W. Dr. Muhammad Anwar by obtaining receipt Exh.P.2-B. It is stated that site-plan Exh.P.10-A was prepared by the Investigating Officer. It is stated that on the next morning, eight empties of T.T.
Pistol were secured from the place of occurrence and taken into possession vide recovery memo.
Exh.P.9-A. The appellant is stated to have been arrested on 8-12-1999. It is stated that one motorcycle 70 CC was taken into possession vide recovery memo. Exh.P.4-A. The blood-stained earth of the deceased was taken into possession vide recovery memo. Exh.P.5-A while blood- stained clothes vide Exh.P.5-B. It is stated that one T.T. Pistol was recovered by the Investigating Agency at the instance of appellant and taken into possession vide Exh.P.6-A. The appellant was produced before the Judicial Magistrate, Soorab who recorded his confessional statement under section 164, Cr.P.C. Vide Exh.P.7-C. After usual investigation, the appellant was sent up to face his trial.
3. On 20-3-2000 learned Sessions Judge, Kalat Division at Mastung framed charge under section 302, P.P.C. Against the appellant Bashir Ahmed to which, he pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined P.W.1 Mir Mian Khan, P.W.2 Muhammad Anwar, P.W.3 Attaullah, P.W.4 Muhammad Ismail, P.W.5 Ghulam Haider, P. W.6 Mir Noor Ahmed, P. W.7 Abdul Qayyum, Judicial Magistrate, P.W.8 Dr. Muhammad Karim, P.W.9 Hidayatullah and P.W.10 Khuda Bakhsh.
5. In his statement recorded under section 342, Cr.P.C., appellant Bashir Ahmed disputed the case of the prosecution and, pleaded his innocence. Regarding confessional statement recorded under section 164, Cr.P.C. Vide Exh.P.7-C, the appellant has replied to the trial Court that he made the same as he was subjected to torture but at the same time he changed his version by stating that he did not make statement. When asked as to why, the prosecution witnesses had deposed against him, to which he replied to the trial Court that they deposed on account of enmity. He has also made his statement on oath as per provisions contained under section 340(2), Cr.P.C. In cross---examination he was however, admitted that there existed no enmity between him and Judicial Magistrate and Tehsildar.
6. On the assessm ent of evidence, the learned Sessions Judge found the appellant guilty for the offence under section 302, Qisas and Diyat Ordinance/P.P.C. And convicted him in the manner hereinabove mentioned. The relevant portion of the concluding para. Of the judgment is reproduced below for the sake of facility:-- "On the basis of above discussion, I have reached to the conclusion that prosecution has successfully made out his case under section 302, P.P.C. But as it is a case of sudden provocation and there is lacking of basic ingredients/requirements which are necessary for Qisas, therefore, the accused is convicted and sentenced for 14 years' R. I. With fine of Rs.2,00,000 (rupees two lacs) under section 302, P.P.C. And in default of payment of fine he has to further suffer one year R.I.
Benefit of section 382-B, Cr.P.C. Is extended to the accused. The amount of fine, if recovered, be paid to the legal heirs of deceased."
7. We have heard Messrs Amanullah Kanrani, Advocate for the appellant, Ch. Mumtaz Yousaf, learned counsel for the, petitioner Murad Muhammad while Mr. Habib Tahir, Advocate learned counsel for State.
8. The main contentions put forth on behalf of the appellant are as under:--
(a) that the impugned judgment is contrary to facts, law and justice;
(b) that there are dishonest improvements in the statements of prosecution witnesses;
(c) that the alleged recovery of pistol from the house of appellant does not connect him with the commission of alleged offence as the same has not been sent to chemical expert;
(d) that there is no eye-witness .Of the incident except P.W. Who dishonestly tried to improve the case of the prosecution;
(e) that there is delay of eight days in recording of confessional statement of the appellant and the appellant was handed over to the same Tehsildar for taking him to judicial custody;
(f) that no identification parade has been conducted. There are contradictions in the statements of prosecution witnesses which make the prosecution case doubtful.
2001 SCMR 56, 2000 SCM R 1038, 1997 PCr.LJ 1646, 1985 SCM R 410 and 2000 PCr.LJ 465.
9. On the other hand, learned counsel representing the State has resisted the acceptance of appeal.
10. Learned counsel for the petitioner has submitted that the sentence of 14 years' R.I. Awarded by the trial Court is a lesser punishment and does not commensurate to facts and circumstances of the case. Learned counsel for the petitioner has further contended that once the trial Court came to the conclusion that prosecution has succeeded to bring home the charge against the accused, the learned trial Court was not justified to reduce the sentence arbitrarily without assigning any reason as there existed no such mitigating circumstances. According to him, the sentence is liable to be enhanced. In support of his contention, he has relied upon the authorities reported in 1989 SCM R 446, 1991 SCM R 942 and 1977 SCM R 457.
11. The learned trial Court on the basis of evidence formulated the following points for determination:--
(i) Whether Ghulam Dastagir died unnatural death?
(ii) Whether accused committed murder of Ghulam Dastagir on account of fire--arm?
According to the observations of the learned trial Court, both of the aforesaid points have been proved.
12. The prosecution case mainly rests upon the following items of evidence:--
(a) Judicial confession of the appellant recorded under section 164, Cr.P.C.
(b) Medical evidence.
(c) Ocular evidence.
(d) Recoveries of empty and T.T. Pistol.
13. The confessional statement of appellant recorded under section 164, Cr.P.C. Has been relied upon by the trial Court. There is nothing on record which can indicate that this statement had been obtained by adopting third degree tactics by 'Investigating Agency. The Judicial Magistrate who recorded the confessional statement did appear before the trial Court. The confessional statement has been found by the Judicial Magistrate as voluntary and true. This piece of evidence has been criticised by the learned counsel for the appellant by contending that there is delay of eight days in recording of the confessional statement, therefore, the same cannot be relied upon for the conviction of the accused person.
14. On the 'other hand learned counsel representing the State has contended that where the confessional statement of the accused was found to be true and voluntary, conviction could be recorded on such statement and delay of eight days in recording of confessional statement is not fatal. The mere fact that a confession has been retracted, as is the position in the present case would not necessarily show that the confession was not voluntary. The Honourable Supreme 'Court in 1999 SCM R 1818 have held that:-- "Delay in recording the confession by itself cannot render the confession nugatory it otherwise, it is proved on record that the same was made voluntarily. "
2000 SCMR 130, it has been held that:-- "The mere fact that an accused retracts from the confession made by him cannot by itself be made a ground for its rejection, the only requirement in this respect as to ensure that when the same was made, it was voluntarily true and fits in with the prosecution story. "
15. Besides, admission of the accused/appellant in judicial confession etc. There is evidence of Dr. Muhammad Karim (P.W.8) regarding external examination of deceased Ghulam Dastagir. On external examination of deceased the doctor found the following injuries on his person:-- "From the examination of dead body of the deceased, the doctor is of the opinion that the death has occurred on account of excessive loss of blood due to Hyporolumic shock. "
According to doctor, these were bullet wounds.
16. From the nature of the above mentioned injuries sustained by Ghulam Dastagir and medical evidence, it can be concluded that whoever, caused these injuries had intention to cause such injuries as were sufficient in the ordinary course of nature likely to cause death, or with knowledge that the act was so imminently dangerous that it must in all probability to cause death. The eye account of occurrence has been furnished by P.W.5 Ghulam Haider. No doubt, he made improvements in his testimony before the trial Court but the facts remain the same that he had no motive to falsely implicate the accused for murder of Ghulam Dastagir in place of real culprit. The ocular evidence by witness whose presence on the scene or occurrence was beyond doubt and who is corroborated by the other evidence cannot be discarded. The statement of Ghulam Haider cannot be discarded for the reason that he is related to the deceased. Learned counsel for the appellant has criticised the evidence of this witness by contending that the said witness had disclosed the name of accused for A the first time before the trial Court and no identification parade has been conducted. There is hardly any need of conducting of the identification parade when the parties know each other. The perusal of record also indicates that from the figure, the said witness suspected the same to be the appellant as at the time of occurrence, his face was stated to be muffled. Even otherwise, the deposition of the said witness is corroborated by other evidence and he has rightly been relied upon by the learned trial Court. The recovery of pistol cannot be disputed as the same has been found in the name of appellant. The case pertains to B- Area and on account of lack of proper training; the Investigating Officer has not sent the recovered pistol and the empties stated to have been secured from the place of occurrence to the Fire-arm Expert which were supposed to be serif for obtaining expert's opinion. Even if the same is not to be relied upon, there is other evidence which is sufficient for conviction of the appellant.
17. The immediate cause of incident is not known. God alone knows the mind of a man, the prosecution has not established the motive. However, the appellant in his confessional statement has disclosed the motive which is to the extent that about 1-1/2 months prior to the occurrence, the deceased had- uttered abusive language. Even otherwise, it is not incumbent duty of the prosecution to establish the motive. The defence of the appellant was mere denial of the prosecution allegations. There is no substance in the plea of appellant and the explanation given by him is neither reasonable nor worthy of reliance. In these circumstances this Court can infer on the basis of evidence, confessional statement, conduct of the accused/appellant and circumstances of the case that the version given by the prosecution is more probable and near to the truth. The prosecution has been able to establish a case against the appellant, so far as the murder of Ghulam Dastagir is concerned, he was, therefore, rightly convicted by the trial Court. The appeal has no merits which is accordingly dismissed.
18. As far the plea put forth on behalf of the petitioner regarding sentence awarded by the trial Court is concerned, it has been submitted that the sentence of 14 years' R.I. Awarded by the trial Court is a lesser punishment and does not commensurate with regard to facts and circumstances of the case. Learned counsel for the petitioner has further contended that once the trial Court came to the conclusion that prosecution has succeeded to bring home the charge against the accused, the learned trial Court was not justified to reduce the sentence arbitrarily without assigning any reason as there existed no such mitigating circumstances. In the case in hand, the trial Court has stated that prosecution has successfully made out case under section 302, P.P.C. But sentenced the appellant for 14 years' R.I. Without specifying subsection of section 302, P.P.C. Section 302, P.P.C. Divides Qatl-i-Amd for purpose of punishment into three categories:--
(a) Qatl-i-Amd which is punishable with death as Qisas.
(b) Qatl-i-Amd punishable with death or life imprisonment as Tazir.
(c) Qatl-i-Amd punishable wits imprisonment of either description for a term which may extend to 25 years where according to the Injunctions of Islam, the punishment of Qisas is no applicable.
It is not understood as to what was meant by the trial Court regarding sudden provocation without giving any reason and not imposing the proper sentence as contemplated under section 367, Cr.P.C. There was no such evidence which can indicate that it was a case of sudden provocation.
The trial Court has recorded conviction of the appellant under section 302, P.P.C. But sentenced the appellant only for 14 years' R.I. Which appear to have been awarded under section 302(c). We are, however, keeping in view the evidence and circumstances of the case, of the view that this was a case for conviction under section302(b), P.P.C. For conviction and sentence under section 302(a), P.P.C., the quality of evidence is laid down in section 304, P.P.C. And it has obviously nexus with Article 17 of the Qanun-e---Shahadat Order, 1984. Evidence of the witnesses also did not satisfy the test provided in Article 17 of the Qanun-e-Shahadat Order, 1984. There is hardly any mitigating reason/circumstance which could be considered for awarding punishment of 14 years only. We are accordingly of the view that in this matter where the prosecution had established its case against the appellant for the Qatl-i-Amd of Ghulam Dastagir, conviction was required to be recorded under section 302(b), P.P.C. Life imprisonment as Tazir. The conviction of the appellant is therefore, converted from section 302, P.P.C. To that of under section 302(b), P.P.C. Life imprisonment as Tazir.
The revision petition is accordingly accepted to that extent. Since fine is not provided under section 302, P.P.C., therefore, the sentence of fine amount to Rs.200,000 awarded by the trial Court is set aside. As per provisions contained under section 544-A, Cr.P.C., we direct, that appellant Bashir Ahmed shall pay an amount of Rs.50,000 as compensation to the heirs of the deceased and in default thereof shall suffer simple imprisonment for six months and dealing of the same as per provisions contained under section 544-A, Cr.P.C. He is, however, entitled for the benefit of section 382(b), Cr.P.C. Which has already been extended to him by the learned trial Court.
With the above observations, the appeal and criminal revision petition stand disposed of.