2006 PLP 1959 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.643 of 2000? filed by Ghulam Abbas appellant, who was convicted and sentenced by learned Addl. Sessions Judge, Sahiwal vide his judgment dated 28-1-2000 to death under section 302(b), P.P.C. with further direction to pay Rs. One lac as compensation to the legal heirs of the deceased or in default six months' R.I. Murder Reference No.169 of 2000 for confirmation of death sentence or otherwise of the appellant shall also be disposed through this single judgment.

2. Briefly stated the facts of the case, as narrated by Muhammad Nawaz complainant, are that on the eventful night i.e. 29-6-1995 at about 2-00 a.m. Ghulam Farid informed the complainant that his brother Abdul Razzaq, deceased, had gone at the Mela of Baba Bahu Sial where he has received fire-arm injury and he is lying at the spot. The complainant along with Ghulam Farid riding upon a motorbike went at the venue of occurrence where he found that his brother Abdul Razzaq deceased, smeared with blood was lying upon earth in an injured condition. In the meanwhile, Riaz and Muhammad Anwar P.Ws. informed that Abdul Razzaq, deceased; Amir, Khadim Hussain and Abbas were speculating dance programme at Mela and they were giving money to the dancing party. Suddenly Abbas accused having armed with .30 bore pistol fired upon Abdul Razzaq deceased, which hit his right temporal region of his head and crossed the same. In the presence of P.Ws. the accused persons decamped from the place of occurrence. The complainant picked his injured brother and transited him in District hospital for his treatment. Unluckily the deceased succumbed to the injures after his arrival in the hospital. Motive behind the occurrence was that few days prior to this occurrence Abdul Razzaq, deceased Amir and Khadim Hussain had exchanged hot words against each other. In this grudge Amir, Khadim Hussain and Abbas accused with their common intention have committed the murder of Abdul Razzaq.

3. After registration of the formal F.I.R. Manzoor Elahi A.S.-I. P.W.7 reached the hospital, prepared injury statement Exh.P.G. and inquest report Exh. P. H. , then visited the spot and prepared rough sketch of the place of occurrence Exh.P.J., recorded the statement of the witnesses under section 161, Cr.P.C., took into possession blood-stained earth vide memo. Exh.P.E., thereafter, the investigation was entrusted to Muhammad Akram A.S.-I., who arrested Ghulam Abbas accused on 22-4-1996 and accused while in police custody on the same day got recovered pistol .30-bore, which was taken into possession vide memo. Exh. P. B. After completion of the remaining formal investigation, the accused was challaned to face the trial.

4. At the trial, prosecution in order to prove its case produced 11 witnesses in all, thereafter, learned D.D.A. tendered in evidence report of Forensic Science Laboratory Exh.P.K., report of Chemical Examiner Exh. P. L. , report of Serologist Exh.P.M. and closed the prosecution case, then, the statement of the appellant was recorded, in which he pleaded innocence.

5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record, learned counsel for the appellant submits that eye-witnesses were not present at the spot, that both Riaz P.W.5 and Muhammad Anwar P.W.6 are cooked up witnesses, that complainant is not an eye-witness, he was informed by Riaz and Muhammad Anwar P.W.5 and P.W.6 about the occurrence, that there was no previous background of enmity between the parties, that occurrence had taken place at the spur of the moment without taking any undue advantage. Concluding his arguments, learned counsel submits that under these circumstances, its is not a case in which death sentence can be maintained.

6. On the other hand, learned counsel for the State submits that appellant is named in the F.I.R., he is the only accused in this case, no question of substitution, he remained fugitive from law for about 10 months, that recovery was also effected from him, though the crime empties recovered from the spot were not sent to Fire-arm Expert for comparison and that ocular account is fully corroborated by medical evidence. He supports the judgment of the learned trial Court.

7. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence in this case had taken place at Mela of Baba Bahu Sial where currency notes were being showered by both the parties, on which, an altercation took place and the appellant caused single injury with fire-arm on the person of the deceased. There was no previous background of enmity between the parties; it seems that occurrence had taken place at the spur of the moment without repeating the blow. Appellant though remained fugitive from law for about 10 months but the fact remains that there was no motive to kill the deceased except, what happened at the spur of the moment at the place of occurrence. Taking all these factors to be extenuating we though maintain the conviction of the appellant under section 302(b), P.P.C. but convert the same to imprisonment of life with the benefit of section 382-B, Cr.P.C. The sentence of compensation and in default thereof is however, maintained in toto. The appeal filed by the appellant is dismissed with reduction in sentence. His death is not confirmed and murder reference is answered in the negative. N.H.Q./G-13/L??????????????????????????????????????????????????????????????????????????????????? Sentence reduced.