ASIF SAEED KHAN KHOSA, J.---Nazar Hussain Shah appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment dated 23-11-1998 rendered by the learned Additional Sessions Judge, Bhalwal, District Sargodha and was sentenced, to death by way of Ta'zir and was ordered to pay a sum of Rs,30,000 to the heirs of Riaz Hussain Shah deceased by way of compensation under section 544-A, Cr. P.C. Through the same judgment the appellant's nine co-accused were acquitted by the learned trial Court. The appellant has challenged his conviction and sentence before this Court through this appeal which has been heard by us alongwith Murder Reference No,30 of 1999 seeking confirmation of the sentence of death passed against the appellant. We propose to decide this appeal as well as the Murder Reference together through the present consolidated judgment.
2. The prosecution's case unfolded in the F.I.R. Was that Ghulam Abbas Shah complainant was a resident of village Zereen Nabi Shah situated within the area of Police Station Bhera, District Sargodha and at about 7-30 p.m. On 3-7-1993 he was sitting at the house of Riaz Hussain Shah alongwith Shabbir Hussain Shah, Khadim Hussain Shah son of Mehtab Shah and the said Riaz Hussain Shah. Suddenly Nazar Hussain Shah appellant and his four co-accused started tiring at the complainant party from the neighboring house of Khadim Hussain Shah son of Bahadur Shah after raising a Lalkara. Upon that firing the complainant party took their positions in defence and Riaz Hussain Shah went to the roof-top of his house with his licensed gun and after taking cover behind a wall he tired 3/4 shots at the accused party. Thereafter Nazar Hussain Shah appellant fired at Riaz Hussain Shah hitting him on his chest and making him fall down. Riaz Hussain Shah immediately succumbed to his injury and died at the spot. The complainant and his sonShabbir Hussain Shah also fired two shots each at the accused party. The motive set up in the F.I.R. Was that on 27-2-1992 Nazar Hussain Shah appellant's brother namely Azhar Hussain Shah had been murdered and for that murder the complainant and others, including Riaz Hussain Shah, had been challaned but on 31-3-1993 the learned trial Court had acquitted Riaz Hussain Shah and others while a brother of Riaz Hussain Shah namely Sikandar Shah had been sentenced to death.
According to the F.I.R the present occurrence had taken place because Nazar Hussain Shah appellant and others wanted to avenge the earlier murder and get even with Riaz Hussain Shah and others. It was mentioned in the F.I.R. That Nazar Hussain Shah appellant and his tour co- accused had committed the murder of Riaz Hussain Shah with the abetment of five other accused persons. Leaving the dead body of Riaz Hussain Shah at the spot Ghulam Abbas Shah complainant went to Police Station Bhera, District Sargodha and lodged F.I.R. No,86 in respect of the above mentioned incident at 10.30 P.M. On 3-7-1993 for offences under sections 148/302/149/109, P.P.C.
3. The post-mortem examination of the dead body of Riaz Hussain Shah deceased was conducted by Dr. Zafar Iqbal Bhatti at 8-00 A.M. On 4-7-1993. The case was then investigated by Maula Bakhsh, S.-I. (P.W.11) who took various steps during the investigation including effecting recoveries from the spot, arresting various accused persons and recovering weapons of offence from some of them including the appellant.
4. At the commencement of the trial the learned trial Court framed a charge with two heads under sections 148 and 302/149, P.P.C. Against the appellant and his co-accused to which they pleaded not guilty and claimed a trial.
5. During the trial the prosecution produced as many as thirteen witnesses in support of its case against the appellant and his co-accused. Ghulam Abbas Shah Complainant had already died by then and the ocular account of the incident in question was furnished by Shabbir Hussain (P.W.9) and Khadim Hussain Shah (P.W.10). Both the said witnesses had also deposed about the motive as well as about overhearing a conspiracy allegedly being hatched by the accused party for getting even with the complainant party. Dr. Zafar lqbal Bhatti had already proceeded abroad, and, thus, the facts about conducting post-mortem examination of the dead body by him and preparation of the post-mortem examination report by him were proved by Dr. Ehsan Elahi (P.W.5) on his behalf.
Abdul Ghaffar, H.C. (P.W.4) and Nazir Ahmad (P.W.7) had stated about recovery of weapons from the appellant and one of his co-accused. Muhammad Arshid, A.S.-I. (P.W.12) had stated about the steps taken by him for getting the appellant served with a proclamation in connection with the appellant having been declared as a Proclaimed Offender. Maula Bakhsh, S.-1. (P.W.11) deposed about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
6. In their statements recorded under section 342, Cr. P. C. The appellant and his co-accused denied and controverted all the allegations of fact levelled against them by the prosecution and professed their innocence. They, however, opted not to make any statement on oath under section 340(2), Cr.P.C. And did not produce any witness in their defence. During the trial the learned trial Court also examined three police officials as court-witnesses who had taken various steps during the investigation of this case.
7. At the conclusion of the trial the learned trial Court acquitted the appellant's nine co-accused but, after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt. Convicted and sentenced the appellant as mentioned and detailed above.
Hence. The present appeal and the connected Murder Reference before this Court.
8. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that the eye-witnesses produced by the prosecution were inimically disposed towards the appellant and they had failed to receive corroboration from any independent source. It has also been argued that before the learned trial Court the eye-witnesses had significantly deviated from their statements made before the police during the investigation of this case and had also given a lie to the contents of the F.I.R. It has. Thus, been maintained that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. It has lastly been added that, in the alternative, the appellant did not deserve the extreme penalty of death in the peculiar circumstances of this case. As against that the learned counsel for the State has submitted that the prosecution had succeeded in proving the guilt of the appellant to the hilt and there is no mitigating circumstance available in this case to reduce the appellant's sentence.
9. After hearing the learned counsel for the parties and going through the record we have noticed that Nazar Hussain Shah appellant and Riaz Hussain Shah deceased were immediate neighbors of each other in the village in question and their houses were situated opposite to each other with an empty space of about 68 feet between them. It has further been noticed that admittedly the parties to this case were locked in pitched enmity with each other and numerous cases of murder and attempted murder had been lodged by them against each other in the past. It is not disputed that in the year 1992 a brother of the appellant had been murdered and Riaz HussainShah deceased of the present case was one of the accused persons booked for that murder but only a few months before the present occurrence Riaz Hussain Shah had been acquitted by the learned trial Court in that case. In that backdrop it was but natural for the appellant to be recoiling in anger and frustration while watching Riaz Hussain Shah living in the house next door and leading his normal life after his acquittal in the case pertaining to the murder of the appellant's brother. In these circumstances we have entertained no doubt that the appellant had the requisite motive to do away with Riaz Hussain Shah deceased so as to get even with him on that score.
10. The ocular account of the occurrence in question had been furnished before the learned trial Court by Shabbir Hussain (P.W.9) and Khadim Hussain Shah (P.W.10) who had made consistent statements vis-a-vis the role attributed by the prosecution to the appellant and despite lengthy cross-examination of the said witnesses the defence had failed to elicit anything to discredit the prosecution's case against the appellant regarding his involvement in the occurrence and tiring of the fatal shot at the deceased by him. The medical evidence had provided ample support to the eye-witnesses in that regard and the motive, as already observed above, stood sufficiently established providing corroboration to the ocular account. Apart from that it had been proved on the record that the appellant had become a fugitive from law for a period of about three years after the present occurrence and had been declared to be a Proclaimed Offender which too has been found by us to be a corroboratory circumstance pointing towards the appellant's guilt. In these circumstances we have entertained no manner of doubt that it was the appellant and none else who was responsible for the murder of Riaz Hussain Shah deceased and the prosecution had indeed succeeded in establishing its case against the appellant in that regard beyond reasonable doubt.
11. Much stress has been laid by the learned counsel for the appellant on the point that according to the F.I.R. As well as the statements made by the eye-witnesses before the police during the investigation of this case Riaz Hussain Shah deceased as well as the complainant and his son had also resorted to tiring at the accused party but during the trial the eye-witnesses had deviated from that stand and had not only changed the complainant party's place of presence but had also tried to suppress the factum of firing by the deceased as well as by the complainant and his son and had further tried to maintain that no gun of the deceased or any empty had been recovered from the spot by the Investigating Officer. This shifting of stand, according to the learned counsel for the appellant, established that the eyewitnesses were capable of telling lies and were not shy of changing their stance to hide the truth. According to the learned counsel for the appellant it is unsafe to rely upon the statements of such witnesses to maintain a conviction of the appellant on a capital charge. We have attended to this argument of the learned counsel for the appellant with the seriousness that It deserves but have found this submission to be insufficient to totally discard the entire testimony of the eye-witnesses produced by the prosecution in this case. After going through the evidence in general and the statements of the eye-witnesses in particular over and over again we have found that apart from this particular inconsistency between the statements of these witnesses made before the learned trial Court and their statements made before the Investigating Officer there is no other material inconsistency in their statements, especially regarding the role played by the appellant during the incident in question. The above mentioned inconsistency is only confined to the aspect of firing by the complainant party at the accused party which firing had admittedly remained ineffective and we have entertained no doubt that the said deviation adopted by the eye-witnesses before the learned trial Court had been intended only to minimize and play down the response of the complainant party to the firing of the accused party so that at the end of the trial the accused party might not take up a plea of self-defence. We have further noticed that this effort by the eye-witnesses was only confined to this aspect of the case and this exercise itself had not caused any major dent because at the end of the trial the accused party had indeed chosen not to take a plea of self-defence and had remained contended with a bare denial. Had the accused party taken up a plea of self-defence then, obviously, such a suppression by the eye-witnesses qua the initially asserted claim of firing by the complainant party could have assumed greater importance and significance in this case. Keeping in view all these aspects of the matter we have confidently arrived at a conclusion that this particular inconsistency in the statements of the eye-witnesses produced by the prosecution had not caused any major dent or significant damage to the prosecution's case against the appellant and, therefore, the appellant's conviction recorded by the learned trial Court can be maintained despite the said deviation adopted by the eye-witnesses in this regard.
12. Pursuant to the discussion made above a conclusion is inescapable that the prosecution had proved the guilt of the appellant beyond reasonable doubt and, thus, his conviction for an offence under section 302(b), P.P.C. Recorded by the learned trial Court is hereby upheld.
13, We have also given our anxious consideration to the question of sentence to be passed against the appellant and in this context, in the peculiar circumstances of this case, we have felt it to be unsafe to uphold the sentence of death passed against the appellant by the learned trial Court.
Various considerations have weighed with us in this regard. Firstly, four co-accused of the appellant who had also been attributed tiring at the complainant party had been acquitted by the learned trial Court by extending the benefit of doubt to them. Secondly, while labouring under the sustained provocation of seeing an alleged murderer of his brother roving scot free and living next door the appellant might have been further provoked at the time of the present occurrence by the getting together of the complainant party as a cluster in the neighbouring house of the deceased fanning the flames of frustration already disturbing the appellant's peace and sanity. Thirdly, we have also felt that the effort made by the eye-witnesses to suppress at the trial their initially asserted factum about firing by the complainant party at the accused party might well be an effort to hide something from the Court which had in fact sparked off the incident in the present case at the relevant time. Keeping in view all these considerations we have chosen to exercise our discretion in the matter of sentence so as to err on the side of precaution and to withhold the sentence of death in this base. For all these reasons we substitute the sentence of death passed against the appellant by the learned trial Court with a sentence of imprisonment for life. The benefit under section 382-B, Cr. P. C. Shall be extended to the appellant and in default of payment of compensation ordered by the learned trial Court the appellant shall suffer simple imprisonment for six months.
14. Criminal Appeal No,1094 of 1998 is hereby disposed of in the terms recorded above and Murder Reference No,30 of 1999 is answered in the negative.
15. The sentence of death passed against Nazar Hussain Shah appellant by the learned trial Court is NOT CONFIRMED.