' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,393 of 1997 filed by Khalid alias Khaldi convict appellant who was convicted under section 302(b), P.P.C. And sentenced to death with further direction to pay Rs,50,000 as compensation, in default six months'
S.I. By learned Additional Sessions Judge, Multan vide judgment, dated 13-12-1997. Murder Reference No,22 of 1999 for confirmation of death sentence or otherwise of the convict alongwith Criminal Appeal No,18 of 1998 filed by the complainant against the acquittal of Khadim Hussain and Javed Tariq respondents shall also be disposed of through this single judgment.
2. Occurrence in this case had taken place at 12-30 noon on 16-11-1994 at a distance of 2 kilometres from Police Station Mumtazabad, District Multan while the matter was reported to the police through written complaint Exh.P.E. By Tauqeer Abbas at 2-15 p.m. The same day at Nishtar Hospital, Multan and the formal F.I.R. Exh.P.E./1 was recorded by Shakeel Ahmad, A.S.-I.
3. Briefly stated the facts of the case are that Tauqeer Abbas the complainant was student of 3rd year in Technology College, Multan. On 16-11-1994 at about 12-30 p.m. He alongwith Shahid Abbas, his brother and Moees Raza were going to their houses on motorcycle No,6739. When they reached near Silk Mill then in a Suzuki Jeep Khalid alias Khaldi armed with pistol .30 bore, Javed Gill armed with pistol .30 bore and Khadim Hussain also armed with pistol .30 bore came down from the jeep.
All the three accused came in front of motorcycle of the complainant and raised Lalkara. Then Shahid Abbas stopped the motorcycle. Khalid fired a shot with pistol which hit on the left side of abdomen of Shahid Abbas. He fell down from the motorcycle. The complainant and Moees Raza also came down from the motorcycle. Javed fired at the complainant but he saved himself by hiding behind the Suzuki and the fire hit the screen of the jeep. The complainant and Moees Raza ran towards the Silk Mill but all the three accused fired at them but luckily no shot hit them. After a short while the complainant and Moees Raza saw back and found the assailants missing, so both came back and took Shahid Abbas in an injured condition to the hospital. The motive alleged was quarrel between complainant and Khadim.
4. Investigation of the case was taken over by Inspector Ejaz Shafi (P.W.8). He after registration of the case, went to the place of occurrence, took into possession motorcycle P.3 vide memo. Exh.P.H.
Jeep P.1 with broken screen was secured vide memo. Exh.P.F. Khalid accused was arrested on 16-11- 1994 and the accused while in custody led to the recovery of pistol P.2 belonging to Shahid Abbas deceased which was taken into possession vide memo. Exh.P.G. The accused also got recovered a pistol P.4 from inside his house which was secured vide memo. Exh.P.A. The Investigating Officer arrested Khadim Hussain accused on 19-11-1994, prepared his injury statement, Exh.P.K. And got him medically examined on the same day. Both Khadim and Tariq Javed were found to be innocent.
Statement of the injured Exh.P.L./2 was recorded on 16-11-1994. After completion of the remaining formal investigation Khalid alias Khaldi was challaned to face the trial.
5. At the trial, prosecution in order to prove its case produced 12 witnesses in all. Then the learned D.D.A. Closed the prosecution case. After that, statement of the accused was recorded under section 342, Cr.P.C. In which he pleaded false implication. After conclusion of the trial, accused Khalid was convicted and sentenced as stated above:
6. Learned counsel for the appellant in support of this appeal submits that the appellant had no motive to kill the deceased; if there was any quarrel that was between Khadim Hussain acquitted accused and the complainant party; it was the complainant party which came to the place of occurrence which is near the house of the appellant; according to the learned counsel, the complainant party was aggressor; the deceased was also armed with a pistol at the time of occurrence; how the occurrence started is shrouded in mystery; the appellant gave the true facts of the case before the police and also before the trial Court; no independent witness has been produced by the prosecution to prove its case; the only independent witness namely Moees Raza who was not related to the complainant was given up as having been Won-over; the presence of the appellant at the spot and his arrest from the spot proves his innocence because it is humanly not possible to stand at the same place after committing a murder and in normal course of nature the accused should have run away; in fact the dying declaration Exh.P.L./2 is a fabricated document and has been prepared just to strengthen the case of the prosecution; the dying declaration was not made under the imminent danger of death; according to the learned counsel, after receipt of injury of the nature as alleged by the prosecution, it was not possible for the deceased to make statement Exh.P.L./2; the deceased died 36 days after the occurrence as the occurrence had taken place on 16-11-1994 and the injured died on 22-12-1994; no record of the bed head ticket was produced by the prosecution; according to the post-mortem examination of the deceased, all the wounds on the person of the deceased were healed; if both the stories, one put by the prosecution and other introduced by way of suggestions are put in juxtaposition then the version of the appellant seems to be more plausible and near to the truth; it was not a premeditated attack but the occurrence took place at the spur of the moment without taking any undue advantage by not repeating the shot; jeep of the deceased with broken screen was also taken into possession which shows that the attack was opened by the complainant party; it was a case of dishonest investigation; Khadim Hussain acquitted accused was also got medically examined by police after submitting application Exh.P.K. But his injuries were suppressed and that the prosecution has miserably failed to prove its case against the appellant.
7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant-appellant who had also filed Criminal Appeal No,18 of 1998 against the acquittal of Khadim Hussain and Javed Tariq, submits that enmity between the parties was there; the motive laid with the appellant and the acquitted respondents; suggestions were made to the eye- witnesses about the presence of the appellant at the spot; no defence plea has been taken by the accused in his statement under section 342, Cr.P.C. Specially to the question why this case against him and why the P.Ws. Have deposed against him; the only reply was due to enmity and relationship of the witnesses with the deceased; the injuries on the person of Khadim Hussain were caused a day prior to the occurrence as has been brought on record by the defence by putting questions to Ejaz Shafi, the Investigating Officer; it does not matter that only one eye-witness was produced by the prosecution; the Court has to see the quality of evidence and not the quantity; it was a broad daylight occurrence, there was no question of substitution and that the prosecution has been successful in proving its case against all the three accused to its hilt.
8. We have heard learned counsel for the parties and have gone through the record. The occurrence had not been denied by the appellant specially while cross-examining the complainant at page 43 of the paper book. Some portion of the cross-examination of the complainant may be reproduced:-- "It is correct that Rana Rizwan and Aftab aforesaid also used to reside in my hostel. It is incorrect that on the fateful day myself armed with kalashnikovs, Shahid deceased, Rizwan and Aftab aforesaid with pistols, Moees Raza P.W.3 with 222 rifle and one Umar with carbine had started on two different motorcycle in the search of Khadim Hussain accused with the common object to commit his murder. It is also correct that one Shah Zaman having pistol was seated behind my deceased brother on a motorcycle. It is incorrect that we all including deceased when reached in between Mumtazabad Pathak and B.C. Chowk we met Khadim accused, who was arriving there and started following them in order to kill him or that in the meanwhile Khalid accused suddenly arrived there in a jeep having some tyres loaded in the jeep. It is also incorrect that Khadim accused in order to save his life took shelter behind the jeep of Khalid accused or that we fired at Khadim but our fire hit the screen and other parts of jeep of Khalid accused. It is also incorrect that we apprehended Khadim accused, gave him beatings with Butts of our respective weapons and forcibly carried him to our house. It is also incorrect that during that process we all continued firing in order toward of the fear of being captured. It is also incorrect that one of our fire had hit Shahid my deceased brother which caused his death."
' After having gone through the above cross-examination, hearing the submissions made by learned counsel for the parties and going through the evidence on record, we are of the considered view that the prosecution has been successful in proving its case against the appellant to its hilt through ocular account corroborated by the medical evidence and the motive. However, as to the quantum of sentence, there are some mitigating circumstances which are as under:--
(i) Jeep of the appellant with broken screen was taken into possession by the police just after the occurrence;
(ii) after the occurrence the appellant remained present at the spot and he was taken into custody from the spot; this shows that something was suppressed by the prosecution; in the natural conduct, an accused runs away from the spot after having killed a person which fact is missing in the instant case;
(iii) occurrence had taken place on 16-11-1994, the deceased died 36 days thereafter; moreover there was only one injury on the person of the deceased and the shot was not repeated.
' Taking the above factors to be mitigating, though the conviction of the appellant under section 302(b), P.P.C. Is maintained but his sentence of death is reduced to one imprisonment for life with the benefit of section 382-B, Cr.P.C. The death sentence of Khalid alias Khaldi is not confirmed.
Murder Reference is replied in the negative.
' Before parting with this judgment, we may state here that unfortunately the learned counsel for defence did not bring on record the M.L.R. Of Khadim Hussain the acquitted accused. The doctor who examined Khadim was neither summoned as C.W. Or as a D.W. Learned counsel for the appellant has produced before us a photo copy of the M.L.R. Which we are not going to take into consideration at this stave.
' The Exh.P.K. Is the injury statement of Khadim Hussain according to which there are many injuries but that has not been proved by the defence.
' With reduction in the quantum of sentence from death to imprisonment for life, the appeal filed by convict appellant is disposed of.
' So far as Criminal Appeal No,18 of 1998 is concerned, both the respondents namely Khadim Hussain and Javed Tariq were found innocent by the police. The reasoning given by the trial Court for recording-finding of acquittal in favor of the respondents contained in paras.46 and 47 of judgment are supported by the evidence on record. No exception can be taken thereto. Resultantly, the appeal fails and is dismissed.