' MIAN MUHAMMAD NAJAM-UZ-ZAMAN, J.--- Mehboob alias Booba appellant alongwith one Waris was tried for the murder of one Maqsood Ahmad in case F.I.R..429 dated 8-10-1996 registered under section 302/34, P.P.C. At Police Station Dijkot, by the Additional Sessions Judge, Faisalabad who vide judgment dated 9-3-1998 convicted the appellant under section 302(a), P.P.C. And sentenced him to death and to pay compensation of Rs,25,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default whereof to undergo six months' R.I .
2. Calling in question the impugned judgment the appellant filed Criminal Appeal No,245 of 1998 while the trial Court filed Murder Reference No,294 of 1998 seeking confirmation of death sentence of the appellant. Both these matters are being disposed of together by this judgment.
3. On 8-10-1996 on the statement of one Abdul Aziz P.W.2 about the murder of his son namely Maqsood Ahmad which took place within the area of Chak No,267/RB, case F.I.R. No,429 of 1996 Exh.P.B./1 was registered at Police Station Dijkot, District Faisalabad.
4. The brief facts of the prosecution case as narrated in the F.I.R. Are that on 8-10-1996 at about Maghrab prayer time Zahid Jameel son of Muhammad Akbar and Muhammad Sharif son of Nabi Bakhsh, residents of the village were sitting with the complainant on the Thara of his Baithak. At about 7-30 a.m. Maqsood Ahmad son of the complainant came out of the house which was adjacent to the residential house of the appellant. In the meanwhile Mehboob alias Booba armed with 30 bore pistol alongwith Muhammad Waris accused son of Muhammad Sharif, empty- handed while raising Lalkara came at the spot. Statedly Mehboob fired at Maqsood Ahmad with pistol hitting on his abdomen who fell down. The complainant, Zahid Jameel. And Muhammad Sharif witnessed the occurrence and the accused fled away from the place of occurrence.
' Motive for the occurrence as narrated in the F.I.R. Was a quarrel between the deceased and the appellant which took place in the morning of the day of occurrence. Statedly, in order to take the revenge of the insult the appellant had committed the murder of Maqsood Ahmad.
5. After the occurrence matter was reported to Muhammad Khalid, Inspector P.W.10 who after recording the statement Exh.P.B. And the registration of formal F.I.R. Started investigation. The said Police Officer went to Civil Hospital, Faisalabad where he after inspecting the dead body prepared necessary documents and sent the dead body to the mortuary for post-mortem examination.
Thereafter he went to the place of occurrence and after inspecting the spot prepared rough site plan Exh.P.J. He also secured blood-stained earth from the place of occurrence vide memo. Exh.P.C.
As well as recorded the statement of the P.Ws. Under section 161, Cr.P.C. On the next day the last- worn clothes of the deceased alongwith sealed phial containing pellet were produced before the Investigating Officer which were taken into possession vide memo. Exh.P.D. During investigation the said Police Officer also got prepared scaled site plan Exhs.P.B. And P.B./1 through Aurangzeb, Draftsman P.W.1. This case was also investigated by Riaz Ahmad, A.S.-I. P.W.11. On 21-12-1996 he arrested both the accused persons in the presence of Muhammad Hafeez and Muhammad Anwar P.Ws. During investigation Mehboob alias Booba appellant led to the recovery of pistol P.4 which was taken into possession vide memo. Exh.P.E. The Investigating Agency after complying with legal formalities submitted the challan before the trial Court.
6. In order to prove its case prosecution produced twelve witnesses before the trial Court.
7. Aurangzeb, Draftsman P.W.1 prepared scaled site plan Exhs.P.A. And P.A./1.
8. Abdul Aziz P.W.2 and Zahid Jameel P.W.3 being the eyewitnesses of this case narrated the circumstances under which the appellant and his co-accused in furtherance of their common intention committed the murder of Maqsood Ahmad. Both of them have supported the prosecution case in verbatim.
9. Safdar Hussain, Constable P.W.4 took the dead body to the mortuary for post-mortem examination and after the same produced last-worn clothes of the deceased Muhammad Arshad P.W.5 identified the dead body of Maqsood Ahmad at the time of post-mortem examination.
Muhammad Anwar P.W.6 was present when the appellant and his co-accused were arrested. He also witnessed the recovery of pistol P.4 at the instance of the appellant.
10. Dr. A.R. Tahir P.W.7 conducted the post-mortem examination on the dead body of Maqsood Ahmed and observed the following injury:-- ' A fire-arm entry wound 3/4 c.m. x 3/4 c.m. On the left side of abdomen 1 c.m. From umbilicus and 3 c.m. From midline. Round recovered from the abdomen.
' In the opinion of doctor death occurred due to shock and haemorrhage caused by injury No,1 which was sufficient to cause death in the ordinary course of nature.
11. Asghar. Ali, H.C. P.W.8 entered the formal F.I.P. Exh.P.B./1 at the police station. He also kept the parcels (case property) in the Malkhana for safe custody and later on delivered the same to the constables for onward transmission to the different offices.
12. Javaid Ali, Inspector P.W.9, Muhammad Khalid, Inspector P.W.10 and Riaz Ahmad, A.S.-I. P.W.11 conducted the investigation as narrated in the earlier part of the judgment. Irshad Ahmad, Constable P.W.12 took the parcels (case property) to the office of Chemical Examiner and delivered the same intact.
13. Learned A.D.A. Tendered in evidence reports of Chemical Examiner Exh.P.K. And that of Serologist Exh.P.K./1 and closed the prosecution case.
14. Learned trial Court after examining the prosecution evidence also examined the appellant and his co-accused under section 342, Cr.P.C. The appellant while answering to the question "why this case against you and why P.Ws. Deposed against you"? Replied as under:-- "The deceased was a young man of bad character. He had an eye upon my sister Mst. Rahat Parveen and he even did not allow the village Nikah Khawan to perform her Nikah and the Nikah of my sister was performed by a relative. He had made many overtures to my sister but she refused.
On the night of occurrence at about 10-00 p.m. My sister who had come to visit us went out of the house to ease herself in the vacant plot of Ghulam Mohy-ud-Din. I heard shrieks of my sister and hue and cry that she be saved from Maqsood. I went in haste and I found that he had felled my sister on the ground. I warned him to release her and under grave and sudden provocation under the spirit of Ghairat and to save the honour of my sister. I fired a single shot. I had no intention to commit Qatl-i-Amd. Whatever I did was done under Ghairat. P.Ws. Are closely related to the deceased and they are also related inter se and they falsely implicated me in this case."
' The appellant did not make any statement under section 340(2), Cr.P.C. However, he in his defence produced his sister Mst. Rahat Bibi D.W.1 who had supported the defence plea as narrated by the appellant.
15. Learned trial Court after appraisal of evidence available on record vide judgment dated 9-3- 1998 convicted and sentenced the appellant as narrated earlier.
16. Learned counsel for the appellant argued that the appellant in order to protect the honour of his sister gave single fire-arm injury to the deceased and whatever appellant did was in the right of his self-defence and in the circumstances conviction of the appellant under section 302(a), P.P.C. Is not sustainable; that the eye-witnesses who have deposed before the trial Court were introduced later on to strengthen the prosecution case; that both the eye-witnesses who have deposed against the appellant were closely related to the deceased and no independent witness has been produced by the prosecution in support of its case; that the motive for the occurrence as alleged in the F.I.R. Has never been proved by the prosecution before the trial Court. Conversely learned counsel for the State while supporting the impugned judgment vehemently opposed this appeal.
17. It is a case of two versions. Time, weapon used and the venue of occurrence are almost admitted factors and need no discussion. Only the question to be resolved is whether appellant had committed the murder of Maqsood deceased in the circumstances as narrated by the prosecution witnesses or the defence plea taken up by the appellant under section 342, Cr.P.C. Is to be accepted in totality.
18. According to the prosecution case this occurrence took place in front of the house of the complainant. At the relevant time the complainant alongwith Zahid Jameel (P.W.3) and Muhammad Sharif was sitting on the Thara outside the Baithak of his house and they were gossiping. Statedly there was ample light of electric bulb and they in the same light had witnessed the occurrence. Abdul Aziz P.W.2 is the father of the deceased whereas Zahid Jameel P.W.3 is distantly related to the complainant party. He had come to see the complainant. The presence of witnesses at the spot in the circumstances is very natural and plausible. A Both the witnesses were subjected to lengthy, cross-examination before the trial Court but a careful study of the statements of these witnesses show that they remained steadfast and there is nothing on the record to doubt the credibility of these witnesses. Admittedly, none of the witnesses had any enmity with the appellant to falsely implicate him in this case. The ocular account narrated by the said witnesses also stands corroborated by the medico-legal report. The duration, location and nature of injury as narrated by the eye-witnesses stands affirmed by this piece of evidence. It is also apparent from the record that matter was reported to the police without wastage of time nominating the appellant with a specific role. The promptness in lodging the F.I.R. Is yet another factor to strengthen the prosecution case. The statements of both the eye-witnesses coupied with the surrounding circumstances are sufficient to believe the prosecution story and to rely upon the same for upholding the conviction of the appellant.
19. On the other hand, the defence plea taken up by the appellant while making statement under section 342, Cr.P.C. Is that he committed the murder of Maqsood Ahmad in order to protect the honour of his sister. It is apparent from the record that the appellant was arrested in this case after almost two months of the occurrence. The possibility that defence plea taken up by the appellant was under some legal advice cannot be ruled out. It is also clear from the statement of both the Investigating Officers that Mst. Rahat Bibi (D.W.1) sister of the appellant never appeared before the Police Officer in support of the defence plea and for the first time she made statement before the Court as D.W.1. Before the trial Court in support of his defence plea the appellant never offered to make statement on oath to show his truthfulness and this fact itself is sufficient to doubt the credibility of the defence plea.
20. The motive for this occurrence as narrated by the prosecution while lodging the F.I.R. Was that there was a quarrel between the deceased and the appellant in the morning on the day of occurrence but the matter was got patched up by the intervention of respectables. Before the trial Court the stand of above said eye-witnesses was that at the time of quarrel between the deceased and appellant they alongwith other got separated them. Both of them were got confronted with their previous statements made before the police as they never said so while making statement under section 161, Cr.P.C. It is interesting to note that Abdul Aziz P.W.2 during the cross-examination has stated that Arshad and Younis were also attracted to the spot when deceased and appellant had quarrelled in the morning but said Arshad while appearing as P.W.5 has not said a single word about the motive part of the prosecution case. Similarly, during the investigation no serious attempt was made to collect evidence in support of motive part of the prosecution case. In this view of the matter we find force in the arguments of the learned counsel for. The appellant that prosecution has failed to prove this limb of its case. Even otherwise, if the appellant had the said motive in his mind to wreak vengeance then he could have selected some other time and place for achieving the goal. The site plan and statements of witnesses show that house of the appellant and the deceased are contiguous and the exact place of occurrence is in front of the Baithak of complainant. In the light of the venue of occurrence and the circumstances, it seems that immediately before the occurrence something else had happened and this fact has been concealed by both the parties. In this view of the matter we are persuaded to take a lenient view about the quantum of sentence of the appellant.
21. We have observed that there is nothing on the record to show that during the trial the Court has complied with the provisions of section 304, P.P.C. Therefore, the conviction of appellant under section 302(a), P.P.C. Is not correct.
22. The crux of the above discussion is that this appeal has no force and the same stands dismissed. The conviction of the appellant under section 302(a), P.P.C. Is not sustainable, the same stands converted into section 302(b) and the appellant is sentenced to imprisonment for life with benefit of section 382-B, Cr.P.C. Appellant is also directed to pay Rs,50,000 as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C. Or in default whereof to further undergo six months' S.I. With this modification the instant appeal is otherwise dismissed.
23. Death sentence of the appellant is not confirmed and the murder reference is answered in the negative.