1993 P Cr (PLP)

MIAN ABDUL KHALIQ, J.

This is an appeal by Muhammad Boota aged 32 years to challenge his conviction under section 302, P.P.C. by the learned Additional Sessions Judge, Sheikhupura, who vide his judgment, dated 2-5-1991 sentenced him to death and a fine of Rs.20,000 in default whereof to undergo R.I. for one year for the murder of Rehmat Ali. He was further ordered to pay Rs.20,000 as compensation to the legal heirs of the deceased, in default whereof to suffer R.I. for six months. Reference under section 374, Cr.P.C. has also been sent to this Court for confirmation of death sentence of the appellant.

2. Briefly, the prosecution case is that P.W.3 Sami Ullah on 14-5-1989 at 3-15 p.m. lodged F.I.R. Exh.P.B. at Police Station Sharaqpur, District Sheikhupura with P.W.10 Liaqat Ali, S.H.O. to the effect that he was dealing in the sale and purchase of wheat with his father in Mauza Sikhanwala and on 14-5-1989 he alongwith his deceased father Rehmat Ali was present at the shop when appellant Muhammad Boota who was a neighbour and used to visit the shop reached and asked the deceased that he had some work with him and asked him to listen to him separately. Appellant Muhammad Boota was armed with .12 bare gun. The complainant's father Rehmat Ali deceased and Muhammad Boota appellant while talking went in Darbar Baba Hashim Shah when Inayat P.W. (given up), Rana Walayat Khan (P.W.4) and Khalid Hussain P.W. (given up) in connection with the business reached their shop and asked about the deceased. The complainant alongwith the P.Ws. went towards his father, and when they reached near Darbar Baba Hashim Shah, the deceased and the appellant were quarrelling and the deceased was saying that he had no money and it was at the shop. The appellant was demanding money and within the view of the P.Ws. the appellant fired with his .12 bore gun on the deceased which had hit on the front side of his left thigh, who became injured and fell down and succumbed to his injuries at the spot. The appellant alongwith his gun while firing escaped. Leaving behind Inayat P.W. (given up), Rana Walayat Khan (P.W.4) and Khalid Hussain P.W. (given up) to guard the dead body at the spot, the complainant Sami Ullah (P.W.3) reached the police station. He stated that besides himself the occurrence was witnessed by P.W. Inayat (given up), P.W.4 Rana Walayat Khan and P.W. Khalid Hussain (given up). The appellant had killed his innocent father for getting money.

3. P.W.10 Liaqat Ali Inspector/S.H.O. after recording F.I.R. Exh.P.B. proceeded to the spot, prepared injury statement Exh.P.H, inquest report Exh.P.J. of the deceased and despatched his dead body to the mortuary. He secured blood-stained earth from the spot vide memo. Exh.P.C. and one empty cartridge P.5 vide memo. Exh.P.D. P.W.10/S.H.O. arrested the appellant on 31-5-1989 and got recovered .12 bore gun P.4 from his house which was secured by him vide memo. Exh.P.G. and made it into a sealed parcel. The gun P.4 and crime empty cartridge P.5 recovered from the spot were sent to the Technical Services, Crimes Branch, Punjab, Lahore and the report of the F.S.L. Exh.P.N. was positive.

4. The prosecution examined 10 P.Ws. in all to prove its case. The motive on record was furnished by the statements of P.W.3 complainant and P.W.4 Rana Walayat Khan i.e. that there was money dispute between the deceased and the appellant. The ocular account of the case was also brought on record by the statements of P.W.3 Sami Ullah and P.W.4 Rana Walayat Khan, who corroborated each other. P.W.7 Syed Mu7ammal Hussain Shah, who was a dispenser of D.H.Q. Hospital, Sheikhupura stated that he knew Dr. Sikandar Manzoor who had conducted autopsy on the dead body of the deceased on 15-5-1989 at 10-00 a.m., had proceeded to America. He claimed himself to be well conversant with his handwriting. According to him, Exh.P.F. is the correct carbon copy of post-mortem report written by the Doctor himself. As per post-mortem report, the doctor found the following injuries on the dead body of Rehmat Ali deceased:-- (1) A fire-arm wound of entry 9.5 c.m. x 4.00 c.m. on the front of left thigh, upper part and left inguinal region making four wounds of exit each measuring 1.00 c.m. x 1.00 c.m. in the area of 6 c.m. x 4.00 c.m. on the front of right thigh, upper part and the below right inguinal ligament. (2), A lacerated wound 2.5 c.m. x 1.00 c.m. on the back of 2nd metacarpo phalangeal joint of right hand. Wound in muscle deep. No injury to underlying bone. In the opinion of the doctor, the death occurred due to cardiorespiratory failure due to haemorrhage and shock. All injuries collectively and injury No.1 individually were sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem and caused by fire-arm. The time elapsed between injuries and death was 15 to 30 minutes and between death and autopsy was within 24 hours.

5. The recovery of gun .12 bore single-barrel P.4 was made at the instance of the appellant from an iron box lying in the room of his house which was secured by P.W.10 Liaqat Ali, S.H.O. vide memo. Exh.P.G. attested by P.W.8 Bashir Ahmad, P.W. Muhammad Aslam (given up) and P.W.10. 6: P.W.3 Sami Ullah is no doubt son of the deceased, but PWA Rana Walayat Ali Khan is of a different caste and even not related either to the accused or the complainant P.W.4 is resident of Mandi Faizabad while P.W.3 is resident of Mohallah Eidgah of Sharaqpur Sharif, Tehsil Ferozewala. The occurrence took place in village Sikhanwala where the deceased was having a shop and P.W3 Sami Ullah, his son was working with him. It was a broad day murder. The occurrence took place at 2-30 p.m. while the matter was reported to the police on the same day at 3-30 p.m. vide F.I.R. Exh.P.B. Name of the appellant, witnesses, weapon offence carried by the appellant and the manner an which the occurrence took place, all are explained in the said F.I.R. Exh.P.B. which was lodged with promptitude and without deliberations. There was no enmity between the appellant and the P.Ws. The ocular evidence furnished on record by the statements of P.Ws. 3 and 4 is in consonance with the medical evidence i.e. the post-mortem report Exh.P.F. The. gun P.4 recovered at the instance of the appellant is wedded with the empty cartridge P.5 secured from the locale as has been found by the Arms Expert vide his report Exh.P.N. to have been fired by gun P.4. The P.Ws. had no motive whatsoever to falsely involve the appellant in the present case and every reliance can be placed on their testimony. P.Ws. 3 and 4 have corroborated each other in minute details.

7. The appellant when examined under section 342, Cr.P.C. made denial simplicitor and had disowned the recovery of gun P.4 at his instance. He also stated that he had been implicated due to enmity. Neither he produced evidence in defence nor gave statement on oath as envisaged under section 340(2), Cr.P.C.

8. We have heard the learned counsel for the appellant and learned counsel for the State and have perused the record. Learned counsel appearing for the appellant had not seriously challenged the conviction and sentence of the appellant, but has prayed for leniency in the matter of sentence.

9. The motive is shrouded in mystery. P.Ws.3 and 4 have unanimously stated that when they reached Darbar Baba Hashim Shah, they found the appellant and the deceased quarrelling with each other and the deceased was telling that he had no money with him and it was on the shop and the appellant was demanding money. Within their view the appellant fired a shot with his .12 bore gun on the front side of the left thigh of the deceased, but had not repeated the shot. It all happened at the spur of the moment.

10. Pursuant to the above discussion, we alter the sentence of the appellant under section 302, P.P.C. from death to imprisonment for life, but maintain the sentence of fine of Rs.20,000, in default whereof the appellant shall undergo R.I. for one year further. The compensation of Rs.20,000 ordered by the trial Court to be paid to the legal heirs of the deceased, in default whereof to suffer further R.I. for six months, is maintained. The appellant shall be extended the benefit of section 382-B, Cr.P.C.

11. The death sentence is NOT confirmed. N.H.Q./M-1106/L Sentence reduced.