1999 PLP 2459 (SCMR)

SH. IJAZ NISAR, J.

This appeal by leave of the Court is directed against the judgment of the High Court of Balochistan, Quetta, dated 18-12-1997, passed in Criminal Appeal No.274 of 1997 and Murder Reference No. 18 of 1997.

2. The facts, in brief, are that on 23-8-1994, at 9.00 p.m. F.I.R. No.80 of 1994, under section 324, P.P.C. was registered at Police Station Dera Murad Jamali, against Nizamuddin appellant, at the instance of Muhammad Hashim complainant (P.W. 2) for causing injuries to his son Liaqat Ali, but subsequently on the death of Liaquat Ali deceased section 302, P.P.C. was added. On the day of occurrence i.e. 22-8-1994, at 8.00 p.m. Muhammad Hashim complainant was present in his house when on the hue and cry raised by his son Liaquat Ali deceased, he went out and saw the appellant firing pistol shots at him. The deceased fell down, whereafter Nizamuddin appellant fled away. The deceased succumbed to the injuries on the following day. The occurrence was witnessed by Nawab P.W.3, and Ghulam Sarwar P.W.4.

3. The motive for the offence was that about a month prior to the occurrence the appellant and the deceased had exchanged hot words.

4. During investigation the police took into possession 4 crime empties, blood-stained earth and firearm license of the appellant which he had reportedly left at the spot. The appellant was arrested on 20-10-1994. On 30-11-1994 he led to the recovery of a pistol from the bushes. The crime empties recovered from the spot and the pistol were sent to the Forensic Science Laboratory and it was reported that the empties had been fired from the said pistol.

5. The appellant did not plead guilty to the charge. To prove its case the prosecution examined Muhammad Hashim P.W. 2, Nawab P.W.3, Ghulam Sarwar P.W. 4 as eye-witnesses and Abdul Nabi P.W. 7 as recovery witness.

6. The learned trial Court vide judgment dated 30-9-1997 convicted Nizamuddin appellant under section 302(a), P.P.C. and sentenced him to death as Qisas with a fine of Rs.100,000 payable to the legal heirs of Liaquat Ali deceased.

7. On appeal filed by the appellant, a Division Bench of the High Court of Balochistan, Quetta, vide judgment dated 18-2-1997 maintained his conviction and sentence.

8. Leave to appeal was granted by this Court vide order dated 5-6-1998 to reappraise the evidence and to see whether, in the circumstances of the case, extreme penalty was called for.

9. It is, inter alia, contended that it was an unwitnessed occurrence; Muhammad Hashim P.W.2, and Ghulam Sawar P.W.4 being closely related to the deceased were interested witnesses, while Nawab P.W.3 was a chance witness, and further that immediate cause of occurrence was not disclosed and that the cause of death of Liaquat Ali deceased was not conclusively proved.

10. Muhamad Hashim P.W. 2 is father of the deceased, while Ghulam Sarwar P.W.4 is his cousin. Since they had no enmity against the appellant, they cannot be termed as interested witnesses and their testimony cannot be discarded merely because of their relationship with the deceased. They stand corroborated by Nawab Din P.W.3, who lived at a distance of 5/10 paces from the place of occurrence and happened to be near the spot at the relevant time. He, too, had no animus or grouse against the appellant to involve him in a case of the present nature. The eye-witnesses stand corroborated by the medical evidence and matching of crime empties recovered from the spot with the pistol recovered subsequently on the pointation of the appellant. Being a case of single accused, there was no question of substitution, nor could it be a case of mistaken identity because the appellant was known to the P.Ws. previously and it was a daylight occurrence.

11. As. regards the motive, Muhammad Hashim complainant stated that about a month prior to the occurrence the deceased and the appellant had exchanged hot words but he did not give any details of the said quarrel, nor did he say anything as to what transpired between them on the day of occurrence. In the absence of these details nothing can be said about the genesis of the occurrence. Admittedly, no post-mortem examination was conducted on the dead body of the deceased, nor did Doctor Ilahi Bakhsh P.W.1. who had carried out the initial medical examination of the deceased, state that the injuries suffered by him were dangerous to life, or were likely to cause death in the ordinary course of nature. In this view of the matter, it is difficult to say with certainty about the cause of death of the deceased. According to the doctor, the deceased was bleeding from the mouth and nose when he had medically examined him and he died due to the internal bleeding. He had said, this without performing any internal post-mortem examination of the deceased. In these circumstances, it is not possible to say whether the bleeding was on account of the injuries or -by a fall after being injured or on account of any other cause. The possibility of the deceased's death due to excessive bleeding can also not be ruled out because after the first aid he was referred to Quetta where he expired on tile following morning.

12. In these circumstances, it would be more appropriate to convict Nizamuddin appellant under section 302(b), P.P.C. instead of section 302(a) P.P.C. We order accordingly, and sentence the appellant to imprisonment for C life as Tazeer with a direction to pay Rs.50,000 as compensation to the heirs of the deceased, failing which he shall undergo further R.I. for a period of six months. The benefit of section 382-B, Cr.P.C. shall also be given to the appellant. With the above modification in the sentence the appeal is otherwise dismissed. N..H.Q./N-59/S Order accordingly.