2003 P Cr (PLP)

Out of the whole lot evidence of Dr. Shaukat Ali (P.W.3), Inayat Ali (P.W.5), Younas Ali, complainant (P.W.7) and Asghar Ali (P.W.8) s of most significance and that of the remaining witnesses is of formal nature. Dr. Shaukat Ali (P.W.3) performed autopsy on dead body of Naseem Abbas deceased and observed one fire‑arm injury on its chest region. According to him, the deceased died due to haemorrhage and shock resulting from the said injury, which was sufficient to cause death the ordinary course of nature. He prepared post‑mortem report (Exh.P.D.) and pictorial diagram (Exh.P.D./1). Inayat Ali (P.W.5) appeared to prove factum of recovery of pistol (P.1) at the instance of the appellant. Younas Ali complainant (P.W.7) and Asghar Ali (P.W.8) furnished full account of the occurrence. They fully supported the prosecution case in their statements.

7. No more evidence was required to be adduced by the prosecution, so learned Prosecutor after tendering in evidence reports of Chemical Examiner,. Serologist and Forensic Science Laboratory (Exhs.P.M., P.N. and P.O.), respectively, declared the prosecution case close.

8. Trial had now shifted to the next crucial stage, which pertains to examination of the accused under section 342, Cr.P.C. All the incriminating evidence was brought to their notice to enable them to offer handsome explanation with regard to the crime imputed to them. They professed their profound innocence in the matter and alleged their false 1volvement in this false case due to animosity. They did not opt to make statements on oath in disproof accusations brought against them as envisaged by the relevant provisions of section 340(2), Cr.P.C. Riasat Ali appellant got examined Ali Hussain as D. W.1.

9. Learned counsel for both the sides addressed their arguments, which were duly considered by the learned trial Judge. He delivered verdict of guilt against the appellant and punished him as aforementioned.

10. Learned counsel for the appellant has raised following points during course of arguments on the basis of which he prayed for acquittal of the appellant:‑‑ (i) That the eye‑witnesses, are inter se related and their presence at the spot is neither natural nor the story put forth is real or genuine. It was fabricated just to implicate the appellant and others in this false case. (ii) That evidence qua recovery of empty and pistol (P.1) is highly defective. In the end, he prayed for reduction in sentence because motive is not proved.

11. Conversely, learned counsel for the State submits that the mere fact that the witnesses are related inter se would not be a sufficient ground to discard their evidence because they had no personal animosity with the appellant and they have made truthful statements. Adds that ocular account tallies with the medical evidence, which is ample proof of witnesses having stated truth. As regards motive and recovery of weapon, he concedes that both these pieces of evidence are not reliable. In the end, he supports judgment of the trial Court.

12. Both the sides have been heard at length and record perused. We nave consciously applied our minds to the facts and circumstances ‑evolving around this matter. Younas Ali complainant (P.W.7) is father of the deceased. Asghar Ali is also related to him. In this case, the deceased was taken away by the accused on the pretext of attending the meeting of Eid‑e‑Milad‑un‑Nabi. They were seen by the complainant and other witnesses. The complainant and other witnesses kept on watching television programs and listening of the address being made on the eve of Eid‑e‑Milad‑un‑Nabi.‑ This meeting was concluded at about 12‑45 a.m. (night). To the utter surprise of the complainant, Naseem Abbas did not return home and he grew anxious. Ultimately, he alongwith Akbar Ali and Asghar Ali P.Ws. left the house in search of Naseem Abbas. When the complainant alongwith his companions reached near his field, he saw Akhtar Ali and Mubarak Ali while catching hold of arms of Naseem Abbas, who was crying hoarse that he be saved. Riasat Ali appellant made a shot through his pistol, which struck left side of chest of Naseem Abbas, who immediately fell down and succumbed to his injuries. He left Akbar Ali P. W. to guard against the dead body of his son and then proceeded towards the police station to make a report of the occurrence. He came across Hidayat Ali, Inspector/S.H.O. (P.W.1) in the area of village Dholan, to whom he dictated his statement. (Exh.P.G.), on the basis of which F.I.R. (Exh.P.G./1) stood registered against the culprits.

13. This incident came into being because 15/20 days before all the three accused picked up a quarrel with Naseem Abbas. The dispute was amicably settled. However, the accused did nourish grudge against Naseem Abbas and killed him out of an elaborate planning. Younas Ali P.W.7) and Asghar Ali (P.W.8) in their statements wholeheartedly supported the prosecution version. Akbar Ali son of Inayat was not examined as a witness. Both the eye‑witnesses in their statements have stated with much exactitude as to at what time and under what circumstances deceased was taken away by them. They have made no material contradiction in their statements. They agree in their testimony as regards material facts of the story. They did not appear to be tutored witnesses. Had they been tutored, then they would not have made few minor variations in their statements. They had sufficient means for gaining correct information of the incident.. Their leaving the house after waiting for Naseem Abbas was most natural. They left the house in search of Naseem Abbas and saw with their own eyes the accused playing their parts in the incident. Learned defence counsel deployed legal engine of cross‑examination to elicit facts favourable to the cause of the appellant, but failed to create a serious dent in regard to the present appellant. It was the natural incident of father to wait for his son and when he did not come, he marched out of his house taking alongwith him His companions in search of his son. This sufficiently explains their behaviour and presence at the spot. Catching hold of the deceased by co Accused of the appellant, namely Akhtar Ali and Mubarik Ali, does not appear reasonable. Co‑accused of the appellant could not incur danger of being injured by the firing of the appellant, so their statements were not acted upon out of abundant, cautions against them and they were extended benefit of doubt, but as regards the appellant he was carrying a carbine and made a straight shot at the deceased hitting his chest. He made only one shot and did not repeat the act of firing.

14. The complainant did not see motive part of the incident. Through whom he came to know about motive was never produced by him before the Investigating Officer. None else came forward to apprise the appellant about this fact. Motive appears to be very weak.

15. As regards recovery of empty, it may be seen that only one shot was made. Unless a carbine is reloaded, the empty would not fall on the ground. It is not automatically ejected out of the chamber of weapon. Inayat Ali (P.W.5) is witness of recovery of pistol (P.1) at the instance of the appellant. He is a close relative of the complainant. Asghar Ali P.W. (not produced) the other recovery witness, is also a close relative of the complainant. Although some four/five persons were available during recovery proceedings, but they were not joined in the recovery proceedings. There is no mention of availability of empty in Column No.23 of the inquest report. In our view, recovery evidence is not credit‑worthy. It has been wrongly acted upon by the trial Court.

16. For all these reasons, we hold that the eye‑witnesses were natural. They had justification to be available at the spot and are wholly reliable. In these circumstances, we are of the view that the appellant was rightly adjudged guilty by the learned trial Judge, but his conviction under section 302(a), P.P.C. is not legal, so the same is converted into one under section 302(b), P.P.C. We find that sentence awarded to the appellant is somewhat severe. It is a case of single shot with no background of deep‑rooted enmity. Both recovery and motive are also not proved, so respectfully relying upon law laid down in case Muhammad Arshad and others v. The State PLD 1996 SC 122, we are inclined to bring about reduction in the quantum of sentence. Accordingly, death sentence of the appellant is converted into imprisonment for life. Order with regard to payment of compensation is maintained. Benefit of section 382‑B, Cr.P.C. shall be extended to the appellant.

17. With the above modification, this appeal is dismissed. Death sentence is not confirmed and murder reference is answered in the negative. H.B.T./R‑195/L Order accordingly.