2002 PLP 3650 (YLR)

4. Investigation of the case was taken over by Abdul Kareem, A.S.I. P.W.11. He after registration of the case reached Allied Hospital, Faisalabad. After permission from the doctor statement of the injured was recorded, who alleged that he was tired at by Naeem‑ur‑Rehman. Thereafter, he went to the place of occurrence, prepared rough site plan Exh.P.W.11/A, blood‑stained earth was taken into possession vide memo. Exh.P.C., a crime empty of.30 bore pistol was found lying outside the house which was secured vide memo. Exh.P.D. Nasrullah injured expired in the hospital and thereafter, the investigation was taken over by Muhammad Arshad Javaid, S.I. P. W.12. He inspected the dead body, prepared injury statement Exh. P.W.12/A, inquest report Exh. P.W.12/B and on 4‑3‑1996 he was able to arrest the accused. The accused while in custody led to the recovery of cycle P.5 which was taken into possession vide memo. Exh.P.F. A pistol .30 bore P.4 was taken into possession vide memo. Exh.P.E. After completion of the remaining investigation, the accused was challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced 12 witnesses in all, then the learned A.D.A tendered in evidence, report of the Chemical Examiner Exh.P.O, report of the Serologist Exh. P.O/1, report of the F.S.L Exh.P.P and closed the prosecution case, thereafter, the statement of the accused was recorded under section 342, Cr.P.C. in which he pleased innocence and claimed false implication. After conclusion of the trial, the appellant was convicted and sentenced as stated above.

6. 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 it was an un witnessed occurrence, that complainant Exh.P.A is also in the hands of same A.S.I., namely, Abdul Kareem, who had recorded Karwai Police on the said Exh.P.A, that F.I.R. was recorded after getting the medico‑legal report, that there is no mention in the F.I.R. of the statement, of the doctor, namely, Qaiser Abbas who had stated before the learned trial Court that when the deceased came out of the shock he told the said doctor that he was fired at by one Naeem‑ur‑Rehman, that according to the post‑mortem report, there was semen on the tip of penis of the deceased. Elaborating his arguments, learned counsel submits that at the time of occurrence it seems that deceased was busy in sexual intercourse and prosecution wanted to conceal this fact from the trial Court, that there was no reason for the murder of the deceased, that all the prosecution witnesses including the eye‑witnesses had not given the reasons for the murder of the deceased, that F.I.R. was recorded after due deliberation and consultation outside the police station and also with the delay of 4 hours, that story of the prosecution is unbelievable, that prosecution has failed to prove its case against the appellant beyond any shadow of doubt.

7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that Article 19 of the Qanun‑e‑Shahadat, Order, Ordinance, 1984 is very important in this case because soon after the occurrence deceased had told the eye?witnesses that he was fired at by Naeem‑ur-?Rehman, appellant, that there was no earthly reason on the part of the complainant and his son, namely, Asad Ullah P.W. to falsely implicate the appellant, that it was a case of single accused, that complainant who is father of the deceased would not implicate the present appellant falsely in place of actual culprit, that parties were known to each other because they were residing in Agricultural University, Faisalabad, that deceased fell on the ground after receiving the injury when inmates of the house were present there, that mere relationship of the witnesses with the deceased is no criteria to discard their evidence. He has also drawn our attention to Exh.P.K, that in the recent judgment of the Honourable Supreme Court of Pakistan, that's 2001 SCMR 1334 and 1474, it is not necessary to prove the motive because motive is always in the mind of the accused. He has also relied upon PLD 1992 SC

211. Further submits that deceased had made a dying declaration before Dr. Qaiser Abbas and also before his father when his father alongwith his son Asad Ullah came near him after hearing the fire shot, that it was Naeem appellant, who committed the murder of deceased. He submits that as far as, semen on tip of the penis of the deceased is concerned, that was for the following reasons i.e. due to anxiety or due to some disease or it is secreted with urine, that there was no previous background of enmity between the parties so there was no reasons to falsely implicate the appellant, that as far as quantum of punishment is concerned, a young man has been murdered so the death sentence may be maintained. He lastly, submits that prosecution has proved its case against the appellant beyond any shadow of doubt.

8. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant case, occurrence had taken place on 27‑2‑1996 at 10‑15 p.m., complaint Exh.P.A was recorded at main gate of University at 2‑30 p.m. on 28‑2‑1996 and the formal F.I.R. Exh. PA/ 1 was recorded on the same day at 2‑50 p.m., no electric light whatsoever natural or unnatural was mentioned in the F.I.R., though the drafts?man, namely, Aurang Zaib, who prepared the site plan and was examined as P.W.9 had shown the same points Nos.5,6 and

7. As far as, dying declaration before Dr. Qaiser Abbas is concerned, we are not going to believe the same because if one goes to the medico legal report of the deceased, the doctor had given the condition of the deceased in following manner:‑ "Patient is bleeding profusely, cold clammy, sweating and low B.P. rapid pulse under shock condition serious and injury is dangerous to life vide operation notes laparotomy and thorocotomy done. Blood present in thoracic and paristonial cavity. At present injury No.1 falls under Jaifa, however, referred and admitted in SUI for further evaluation". There is no mention of this so‑called dying declaration in this medico‑legal report, the said doctor when handed over M.L.R to complainant who took the same to police for the purpose of registration of case because even then this fact was not told by the doctor to the said Muhammad Siddique complainant. Moreover, after sending the complaint to the police station for the registration of the F.I.R. the Investigating Officer came to the hospital, he should and must have been given an application to the doctor for recording the dying declaration of the deceased by stating in the said application whether the deceased was fit to make a statement or not, he did not do so, it also proves that so‑called dying declaration as stated by doctor is full of E concoction. As far as, Exh.P.K is concerned, that's on the judicial record though not on the paper book, we have gone through the same, at least this is first time, we are seeing such types of application by an Investigating Officer which is reproduced below alongwith observation of the doctor as under:‑‑ "I was on duty when I received Nasrullah Siddique son of Muhammad Siddique injured. I examined him medically and issued M.L.C No. 400 of 1996 accordingly. When he was received, he was bleeding profusely and was under shock. Immediately necessary treatment was given and he came out of shock. He told me verbally that Mr. Naeem son of Qadri has injured me with pistol. Signed in English/28‑2‑1996 Dr. Qaisar Abbas, C.M.O Allied Hospital, Faisalabad." This all fact mentioned above seems to be fabricated and fictitious one so we are not going to accept this so‑called dying declaration. So far as, semen on the tip of the penis of the deceased is concerned, learned counsel for the complainant was right in, arguing that it can be due to anxiety or disease or it can come out as a secret alongwith urine, so this contention of learned counsel for the appellant in this regard has no legs to stand, but the fact remains that semen was there on the tip of the penis of the deceased. It is correct that there was no previous background of enmity between the parties but it is also correct that no motive either in the F.I.R. or in the statement of the witnesses recorded under section 161, Cr.P.C. and even before the learned trial Court has been mentioned by the prosecution witnesses including the complainant party. In our considered opinion, motive from the day of occurrence uptill today remained shrouded in mystery. F.I.R. was recorded outside the police station. Allied Hospital is the biggest Hospital in Faisalabad, father of the deceased, who is complainant remained in the hospital for about 4 hours alongwith his sons who are eye‑witnesses but neither the doctor nor anybody of them made a telephonic call at the police station about the occurrence. It has also come on record that there were five licenced arms in the house of the complainant, they had also got motor‑cycle but neither in retaliation they fired shot at the appellant or followed him on motorcycle in order to apprehend the appellant, who was on only bicycle, no time even has been mentioned in column No.3 of the inquest report about the information of death of the deceased. It may also be noted here, that occurrence had taken place on 27‑2‑1998, matter was reported to the police on 28‑2‑1996, empty was taken into possession on 28‑2‑1996, appellant was arrested on 4‑3‑1996, pistol, cycle, gatra along with live bullets were recovered on 8‑3‑1996 but according to the report of Fire‑arm Expert Exh. P. P which is at page 28 of the paper book, the crime empty and the pistol were received in the said office on 31‑3‑1996, as those were sent together and in our considered opinion, it has lost his evidentiary value and same is rule out of consideration. It may also be noted here that deceased according to the prosecution case climbed over the wall which was 5? feet High and it was termed as "Pardawall" he received an injury on his right arm which created two exit wound one on his arm and other on his chest, naturally, after receiving the same, he must have fallen on the ground but he did not receive a single scratch on his body, even not on any part of his head. Although there are some doubts in the prosecution story as we have stated above but it is also a fact that there was no previous background of enmity between the parties, so there was no question of false implication of the appellant in the instant case. It was a case having no motive, it was also a case of single shot. According to section 302(b), P.P.C. there are two sentences, one in death and the other is life imprisonment. For the safer criminal administration of justice we may rely on NLR 1983 SC (Cr.) 682 titled as Ali Hussain, Mumtaz Ahmad v. Mukhtar, Sabir Ali and State where in their lordships of the Honourable Supreme Court ruled that motive is not a sine qua non for bringing offences of murder home to an accused and that it is relevant on the question of sentence. In Kaber Ali Shah v. The State (PLD 1959 (W.P.) Karachi 460) a Division Bench of the Sindh High Court observed that in the absence of motive having been established by the prosecution for the appellant having committed the offence, the extreme penalty of death was considered to be inexpedient and sentence of transportation for life was held sufficient to meet the ends of justice. So far as question of single shot is concerned guidance can be had from Muhammad Arshad and 2 others v. The State (PLD 1996 SC 122) where in the factum of single shot was treated to be a mitigating circumstances to award the lesser penalty. After having critically examined the entire prosecution evidence, defence produced by the convict appellant and the law declared by the Honourable apex Court of the country, in the absence of motive and the shot fired by the appellant having not been repeated, we though maintain the conviction and sentence of the appellant under section 302(b), P.P.C. but reduce the same from death to imprisonment for life with the benefit of section 382‑B, Cr.P.C. The compensation awarded by the trial Court is also maintained. Death sentence of the appellant is NOT confirmed. Murder Reference is replied in the NEGATIVE. H.B.T./N‑206/L?????????????????????????????????????????????????????????????????????????????????? Order accordingly.