1994 P Cr (PLP)

MUHAMMAD NAWAZ ABBASI, J.

This judgment will dispose of Criminal Appeal No.138 of 1991 filed by Zahid alias Zaddo appellant against his conviction and sentence and Murder Reference No.296 of 11,91 sent by the learned trial Court under section 374, Cr.P.C. for the confirmation .of death sentence awarded to the appellant.

2. Zahid alias Zaddo son of Zulfiqar Ali appellant alongwith two others namely Mazhar Hussain son of Allah Bukhsh and Sultan son of Kaura accused was tried by the learned Additional Sessions Judge, Khanewal on the charge under section 302/34, P.P.C. read with section 109, P.P.C. for having caused the murder of Abdul Khaliq deceased, who vide judgment, dated 26-5-1991 finding the appellant guilty of the charge convicted and sentenced him to death and to pay a fine of Rs.5,000 and in default thereof to suffer for a period of six months' simple imprisonment. The appellant was also directed to pay Rs.5,000 as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased or in default thereof to suffer S.I. for six months. Mazhar Hussain and Sultan co-accused of the appellant were, however, acquitted of the charge.

3. The unfortunate occurrence in the present case, resulting into the death of Abdul Khaliq deceased, a young man of 27/28 years, took place on 5-5-1990 at about 8-30 a.m. near Bus Stop Mubarik Pur in the area of Police Station Sadar IAbirwzla at a distance of four miles from the police station. The occurrence was reported by Haji Abdul Rehman father of Abdul Khaliq deceased and case was registered against the appellant and his co-accused vide F.I.R. Exh.P.B. at 9-00 a.m. on the day of occurrence by Habib Ahmad, Inspector.

4. The brief facts of the prosecution case as disclosed by the first informant in the F.I.R. Exh.P.B. are that on 5-5-1990 at 7 :30 a.m. Abdul Khaliq deceased, an employee of the Agricultural Department alongwith Khalid his brother was waiting for bus to reach to his place of duty when a bus reached there from Makhdoom Pur side. Nazir son of Sultan Sipra who reached there through the said bus was inquired giving him fist and kick blows by Abdul Khaliq deceased and his brother Khalid as to why he has given beating to their brother Irshad alias Rashid who after this incident left for Vanhoi and about 8-30 p.m. when Abdul Khaliq deceased and lqbal were present at Bus Stop Mubarik Pur, Zahid alias Zaddo, real nephew of Nazir armed with .12 bore gun and Sultan son of Kaura father of Muhammad Nazir also armed with .12 bore gun through a Suzuki car LHG 8821 which was being driven by Mazhar Kumhar reached Mubarik Pur Bus Stop. Abdul Khaliq deceased and Muhammad Iqbal were present at the bus stop waiting for bus. Zahid alias Z.addo and Sultan came near Abdul Khaliq. Sultan raised Lalkara to teach Abdul Khaliq a lesson for giving beating to Nazir and on his instigation Zahid alias Zaddo fired at Abdul Khaliq causing him injury on his chest and on the right side of the shoulder. The complainant and his son Irshad alias Rashid who were present in the Jawar field near the place of occurrence apart from Mehmood alias Mooda present at bus stop on the road witnessed the occurrence. The motive behind the occurrence as narrated was that on 4th of May, 1990 at evening time Irshad alias Rashid son of complainant and Mehmood alias Mooda were proceeding from Jat Wanoti Pul towards Hassan Pur when Zahid alias Zaddo, Nazir son of Sultan, Shaukat son of Pehlwan and Khizar Hayat picking up a quarrel with them gave them fist and kick blows for the reason that four days earlier Irshad alias Rashid had given kick and fist blows to Zahid near Village Loochungi Kabirwala. The accused for this grudge in furtherance of their common intention committed the murder of Abdul Khaliq deceased.

5. Doctor Muhammad Yousaf, Medical Officer P.W.9 conducted the post-mortem of Abdul Khaliq deceased on 5-5-1990 and found the following injuries on his person:-- (1) Lacerated wound oval in shape, inverted margins 5 c.m. x 6 c.m. on front of right upper chest, 8 c.m. above from right nipple. Depth of the wound could not be probed. Two underlying ribs were fractured. Upper part of the right lung was shattered with small pellets. Right side of pericardium of heart was also penetrated. Many small pellets plus pieces of cartridge were recovered from the depth of the wound. There was profused bleeding from the wound. In the opinion of the doctor, injury No.l was ante-mortem caused with fire-arm weapon and fatal to life which was sufficient to cause death in the ordinary course of nature. However, the death was the result of haemorrhage and shock.

6. Habib Ahmad, Inspector P.W.12 reaching at the spot prepared injury statement Exh.P.H. and inquest report Exh.P.J. of the deceased and despatched the dead body for post-mortem examination whichd was conducted by Doctor Muhammad Yousaf. He carried the investigation at the spot and later took into possession last-worn clothes of the deceased alongwith a sealed phial containing pellets P.4 produced before him by Zubair Ahmad, Constable through memo. Exh.P.E. Suzuki Car LHG &g21 with its registration book was taken into possession from the house of Mazhar Hussain acquitted accused vide memo. Exh.P.D. Zahid accused was arrested on 12-5-1990 and he while in police custody led to the recovery of gun P.5 on 14-5-1990 from Sipra Commission Shop owned by the accused with empties P.6/1-2 in its muzzle and took the same into possession vide recovery memo. Exh.P.F. He arrested Mazhar Hussain acquitted accused on 20-5-1990 and after completion of the investigation in the case submitted challan under section 302/34, P.P.C. against the accused to face the trial.

7. As a result of the denial to the charge by the accused, the prosecution to prove its case produced two witnesses namely Haji Abdul Rehman complainant P.W.2 and Mehmood alias Mooda P.W.3 as eye-witness of the occurrence. Khalid son of Abdul Rehman and real brother of deceased was examined to prove the motive and Doctor Muhammad Yousaf was produced to prove the medical evidence. The remaining witnesses being of formal nature need not to be discussed.

8. The appellant when examined under section 342, Cr.P.C. denied the charge taking the plea of self-defence. His answer to the question "Why the case against you and why the P.Ws. deposed against you?" was as under:-- "The witnesses have deposed against me due to enmity and some witnesses are closely related to deceased. As regards why the case against me, my submission is that on the day of occurrence, I alongwith Muhammad Arif son of Pehlwan was going to Pull V anoi. Arif had his licensed gun with him. We started from Multan to Pull Vanoi in the morning when we reached near Mubarik Pur Bus Stand. I saw many persons gathered there. On our inquiry we were told that some Rajputs of Mubarik Pur were beating my uncle Nazir Ahmad Sipra. We stopped the taxi car in which we were travelling near the bus stand. I and Muhammad Arif came out of the car, I asked the assailants not to beat Nazir my uncle, but they did not pay any heed to it. The assailants were Abdul Khaliq (since deceased), his brother Khalid and close relative of Abdul Khaliq, Iqbal. Abdul Khaliq was armed with a gun while the others were armed with Dandas. Within our view Abdul Khaliq gave two blows with the butt of the gun. I asked them again to behave and not to beat Nazir Ahmad in harsh tone. On this Abdul Khaliq (since deceased) fired at me but it missed hiding myself and Nazir who was being dragged by the assailants in imminent danger of life, picked the gun lying in the car, fired in exercise of right of private defence. The fire hit Abdul Khaliq deceased who fell down alongwith his gun on the ground. Other Rajputs ran away for their lives. I, myself and Muhammad Arif went upto Nazir and found him lying unconscious. We picked him, placed in the car and removed him to Civil Hospital, Kabirwala. On reaching Kabirwala I handed over Nazir injured to the said Muhammad Arif and asked him to get him admitted in the hospital and obtained medical certificate. I also asked him that after obtaining medical certificate go to police station, get the case registered under the appropriate section and then I left in the taxi car for Multan to inform my father about the occurrence. There was only one incident which occurred at 7-30 a.m. My co-accused Sultan was not with me at the time of occurrence he is an old man of 81 years. Police had investigated the case partially and placed twisted version before the Court. Complainant and the witnesses had not come with clean hands. The police was under the thumb of complainant party." He tendered in evidence medico-legal report Exh.DA. and copy of F.I.R. No.155/1990 Exh.D.B. He also produced Muhammad Arif D.W.1 and Shahzada Jahangir, Medical Officer as D.W.2. D.W.2 examined the appellant on the day of occurrence at 9-15 a.m. on 5-5-1990 and found the following injuries on his person:-- (1) Lacerated wound 2.5 c.m. x 1/2 c.m. on the middle of left eyebrow, depth is not probed. (2) Lacerated wound 1 c.m. x 1/2 c.m. x bone deep on the right side of the chin. (3) Contused swelling 6 c.m. x 4 c.m. on the medial side of the left clavical. (4) Contusion mark 5 c.m. x 1 c.m. on the left knee cap. (5) Contusion mark with swelling 12 c.m. x 4 c.m. on the back of left forearm. The condition of the patient was dangerous to life at that time because of profuse bleeding from injury No.l. The injuries were caused with blunt weapon. He did not appear as his own witness under section 340(2), Cr.P.C. Sultan, acquitted accused denying the charge pleaded his non-presence at the spot whereas Mazhar Hussain co-accused admitted to bring Zahid Hussain and Sultan to the place of occurrence through his Taxi as passenger and after the occurrence took them in his car under threat. He pleaded his innocence and not party to the occurrence.

9. The learned counsel for the appellant argued with the following three fold points:-- (i) That the prosecution case being based on distorted facts is not proved beyond reasonable doubt. (ii) That the defence of the appellant seeking support from the evidence and the attending circumstances of the case is reasonably possible to be accepted. (iii) That even if the prosecution case is believed, the act on the part of the appellant under grave and sudden provocation did not constitute an offer under section 302, P.P.C. and can hardly be bur doned with the liability under section 304, P.P.C. In order to substantiate his points, he argued that there being no serious background-of enmity between the parties and the motive of the nature do suggest it a calculated murder. He submitted that Haji Abdul Rehman admittedly was not a witness of earlier incident, therefore, his evidence regarding the motive being hearsay is inadmissible and that Muhammad Arshad who was earlier given beating by the appellant having been not produced, the motive given remained unproved. He next argued that according to the prosecution own story Khalid who had given beating to Nazir in an incident having taken place an hour earlier to the occurrence was not caused any damage by the accused. He arguing the point stressed that the complainant side being aggrieved had the motive to commit aggression and not the accused. His second limb of the arguments was that in fact Nazir, real uncle of Zahid appellant, was attacked by Abdul Khalig deceased and Muhammad Khalid, his real brother, at Bus Stop Mubarik Pur when by chance Zahid appellant alongwith one Muhammad Arif reached there and on coming to know that Nazir was being caused injuries by the fired single shot with the licensed gun which caused injury to the deceased proving fatal to his life. According to him, Nazir real uncle of Zahid appellant was caused a grievous injury dangerous to life who immediately after receiving injury was brought to the hospital and examined at 9-15 a.m. He argued that the time of his examination and the main occurrence which is stated to have taken place at 8-30 removes the doubt that Nazir received injuries on his person before the occurrence. As per prosecution case, Nazir was caused injuries with kicks and fist blows by deceased and Khaliq but the nature and the size of the same indicate that the same were caused with some weapon, therefore, the defence plea of Zahid that Nazir was caused injuries by Abdul Khaliq with butt of gun seeks support from the medical examination of Nazir contended by D.W.2. The learned counsel submitted that the prosecution has .not offered any explanation as to why Abdul Khaliq deceased not left the place of occurrence after the earlier incident and remained present at the spot till 8-30 when he had to go to the place of his duty. This is indicative of the fact that there was only one occurrence which took place at 8-30 a.m. and no incident happened at 7-30 a.m. on the same day as stated by the prosecution. He questioning the presence of Abdul Rehman submitted that he could not possibly reach at the spot before or during the occurrence even if he was present in the Jawar field situated near the place of occurrence. It appears that he reached at the spot on receiving information after the occurrence and lodged a report claiming himself as eye-witness of the occurrence. He argued that Mehmood alias Mooda having been disbelieved by the trial Court and the presence of Abdul Rehman father of the deceased at the spot at the relevant time being not free from doubt, the prosecution is left with no evidence to prove the charge. This being the position, the appellant deserves total acquittal both for failure of the prosecution to prove its case and m the alternate on the basis of exercise of his right of private defence. He further submitted that the co-accused of the appellant having been acquitted arid the prosecution evidence not given weight qua them, the sole testimony of Abdul Rehman, real father of the deceased without seeking corroboration from independent source cannot safely be made basis of the conviction. he while summing up his argument submitted that the prosecution case even if proved in toto, there is no evidence to prove it a pre-meditated occurrence to attract the provisions of section 302, P.P.C. Admittedly, Nazir was caused injuries by the deceased and Muhammad Khalid, therefore, it was natural for the appellant, real nephew of Nazir to react and failing to pocket the insult done to his uncle, the accused in pulse of grave and sudden provocation fired a single shot hitting the deceased, has not committed an offence under section 302, P.P.C.

10. Conversely, Sahibzada Farooq Ali learned counsel appearing on behalf of the complainant and the A.A.-G. submitted that no doubt appellant after his arrest after seven days of the occurrence took the defence plea before the Investigating Officer but he did not produce any evidence in support thereof. Muhammad Nazir who is stated to have received injuries during the occurrence neither appeared before the Investigating Officer nor was produced at the trial. According to the defence plea, one Muhammad Arif was accompanied by the appellant but he too was not produced at any stage to substantiate the defence plea. The evidence of Doctor Shahzada Jahangir D.W.2 was seriously questioned to be a fabricated piece of evidence. It is further argued that because of undue favour extended by this doctor to the accused party on the day of occurrence, while conducting the medical examination of Muhammad Nazir case was registered against the complainant at his instance on their refusal to get the post-mortem examination of the deceased conducted by him. He with reference to the medical examination of Nazir argued that the condition shown by the doctor at 9-15 a.m. on the day of occurrence was the sign of least chance of survival whereas on the next day the patient was found by this doctor normal. He submitted that the conduct of the doctor and the discrepancies in his statement coupled with the attending circumstances under which he performed the medical examination of Nazir is an evident proof of his partiality and not an independent person to be believed. He argued that who prevented Muhammad Nazar to appear in the witness-box and plead the defence case. Non-production of this witness by the defence itself refuted the defence story to be entertained. The learned counsel contended that Khalid who was present with deceased in the earlier occurrecne was produced as P.W.4 to prove the motive given by the prosecution. It was vehemently argued that the presence of Abdul Rehman at the spot having been proved beyond doubt and admittedly there being no previous enmity between the parties except the tention created during the last few days over a petty matter, the evidence of Abdul Rehman, a natural and truthful witness of the occurrence without any confirmatory circumstance can safely be placed reliance for conviction. However, in the present case, the motive and the medical evidence coupled with the admission of the accused is a strong corroboration to prove the guilt of the appellant.

11. We have heard the arguments advanced by the learned counsel for the parties and have perused the record with their assistance.

12. The occurrence in the present case is admitted with the plea of self defence. The appellant also admitted the cause of fire-arm injury to the deceased. Mazhar Hussain his co-accused admitted that he has brought the appellant and Sultan Ahmad in his Taxi to the place of occurrence but denied to be a party in the occurrence. Sultan, the uncle of Zahid appellant, however, denied his presence and participation in the occurrence. Zahid appellant raising the plea of self-defence stated that the fact of the matter was, that deceased committing aggression on Nazir Ahmad caused him injuries and on the intervention of appellant who reached there by chance was fired at by the deceased but it missed and the appellant in the exercise of his right of private defence of his person and Nazir Ahmad fired which hit the deceased. The total evidence produced by the defence in support of this plea was Doctor Shahzada Jahangir D.W.2 who conducted medical examination of Nazir Ahmad shortly after the occurrence. The other witness produced was Muhammad Arif who supporting the defence plea stated that Nazir Sipra was given beating by Abdul Khaliq deceased with the butt of his gun and despite repeated efforts the deceased did not withdraw himself and instead fired at Zahid appellant who in retaliation fired at from his licensed gun at Abdul Khaliq in his defence and the defence of his uncle Nazir. This witness is son-in-law of Sultan acquitted accused and Nazir Sipra is his brother-in-law, whereas Zahid appellant is nephew of his wife. Doctor Shahzada Jahangir D.W.2 stated that patient was not willing for X-ray, so injuries were kept under observation and declared as simple. According to this witness Nazir Ahmad injured was brought to the hospital in an unconscious condition, however, he admitted that the patient was fully conscious next day which fact was recorded by him in his report Exh.DA. with the remarks that the patient was f t for daily performance. Nazir Sipra, the .injured was not produced as a witness in support of the defence plea. The whole controversy for determination to come to a correct decision is whether Nazir Sipra was given beating by the deceased and Khalid at 7-30 a.m. or he received injuries in the occurrence in which the deceased was murdered. The trial Court believing the evidence of Abdul Rehman father of the deceased who is eye-witness and first informant in the case rejected the defence plea. According to him, the appellant alongwith Sultan coming out of the car driven by Mazhar Hussain acquitted accused fired a gun shot at the deceased sitting on his chest. He has denied the suggestion put to him that Nazir Sipra was being beaten by the deceased when Zahid alongwith Arif suddenly reached there and the appellant in the exercise of right of private defence of Nazir and of his own person fired at the deceased. The trial Court, however, disbelieved the other witness Mehmood alias Mooda. The fact that Nazir Sipra was given beating by the deceased and Khalid prior to the occurrence is not deniable. It is the prosecution case that Nazir was given beating an hour before the occurrence which incident was the immediate cause of occurrence and probably the appellant taking the benefit of the same pleaded self-defence.

13. It would be advantageous to consider that under what circumstances, the occurrence took place and to what extent the defence plea carries truth in it. The defence despite lengthy cross-examination has not been able to dislodge the presence of Haji Abdul Rehman at the spot. Nazir Ahmad being the major character in the occurrence was most important witness in support of the defence plea prove that he received injuries in the occurrence in which deceased was murdered and that no incident earlier to the occurrence had taken place on that date. The defence withholding the evidence of Nazir Sipra itself demolished the defence story which was built by producing Muhammad Arif and Doctor Shahzada Jahangir. It is- a matter of record that the complainant after arrival in the hospital with dead body of Abdul Khaliq exchanged hot words with doctor. Shahzada Jahangir and refused to get the post-mortem examination on the dead body conducted by him. Doctor Shahzada Jhangir got a case registered against the complainant under section 186, P.P.C. and in consequence thereof the post-mortem on the dead body was performed by another doctor. This indicates that the complainant party taking notice of some foul play on the part of this doctor protested against his conduct. In the normal course, in such cases, the matter is reported to the police by the hospital authorities and the doctor concerned, but strange enough that in the present case no such step was taken by the doctor before or after the examination of the injured Nazir Ahmad. The report of the occurrence was lodged within half an hour and, the deceased was removed to the hospital without loss, of time for post-morem examination. The complainant party and the police remained present in the hospital with the dead body till the post mortem was not performed but strange enough that police did not arrest Nazir uncle of accused who was admitted in the hospital as an indoor patient and later after seventh day of occurrence on discharge from hospital was arrested. According to the statement of Doctor Muhammad Yousaf, that in injured was unconscious when he was admitted in the hospital on 5-5-1990 but on the very next day he was normal person having the capability of performing usual daily business, which in view of the nature and the size of injury described dangerous to life was not possible for want of rapid recovery as stated by the doctor.

14. Without-giving any compelling reason, the non-production of Nazir in the witness-box would suggest that the defence plea was afterthought and the evidence in support thereof was not truthful to be believed. The production of Muhammad Arif, a close relative of the appellant as a defence witness was not difficult.

15. The close scrutiny of the defence version reveals it an unnatural story. According to the defence the appellant fired at the deceased from the car at some distance whereas the injury having blackening and charring is a positive proof that fire was made from a close range. This being the position, it is unbelievable that fire shot by the deceased missed. This is a positive proof of the fact that the deceased was empty-handed and had no weapon with him, otherwise in the circumstances deposed by the defence witnesses, the appellant was bound to receive injuries at the hand of deceased.

16. In view of the location and the nature of the injuries suffered by the deceased it is difficult to digest the defence plea. The injury was on the front upper chest of the deceased, a number of small pellets and pieces of cartridge having been recovered from the depth of the wound clearly indicates that victim was fired at from close contact. This further rules out the possibility that deceased had slight freedom of movement. This offers a strong support to the prosecution version that the deceased was fired when he was empty-handed and helpless to take any step to avoid injury to himself. Had the deceased a gun with him as stated by the defence, he would not have allowed the appellant to come near him. As a result, in absence of any convincing evidence, mere fact that Nazir was found injured by the doctor, the defence plea is not proved and the same is demolished to the ground.

17. The close scrutiny of the evidence bring us to believe that the occurrence took place in the manner disclosed by the prosqution. Abdul Khaliq and his brother Khalid gave kick and fist blows to Nazir an hour before the occurrence and Zahid appellant on coming to know about the incident retaliated and taking opportunity fired at the deceased. The question whether Nazir was beaten with fist and kick blows or with some weapon is a matter of doubt. However, the evidence available on the record and the circumstances of the case with no doubt proves that the injuries on the person of Nazir were not received by him in the occurrence in which Abdul Khaliq was killed and, therefore, there was no question of right of self-defence available to the appellant. He in fact coming to know about the earlier incident and insult of his uncle appeared at the scene with determination and armed with a gun to take revenge from the deceased.

18. After excluding the defence plea from consideration the next ground agitated by the learned counsel was that the occurrence being the result of a grave and sudden provocation, the conviction under section 302, P.P.C. is not sustainable.

19. There is a difference between the two occurrences. The earlier incident could be a reason to take it a matter of prestige and insult and appellant being revengeful had a reason for the attack but in no case it could attract Exception IV of section 300, P.P.C. The gravity undoubtedly by itself does not contain the element of enmity or the grudge and it is peculiar circumstances while loosing the control and the normal condition of thinking an act if done shall of course be differently taken to that of the act done under the circumstances leading to be revengeful with intention to take the life of individual. .

20. In the present case, the appellant armed with a gun came to the place of occurrence with the determination not to spare the deceased for the insult done by him to his uncle Nazir. Thus, it being an intentional murder, the offence falls within the purview of section 302, P.P.C.

21. The occurrence in the present case took place in the broad daylight and the accused were known to the eye-witnesses. The earlier incident providing the motive for the occurrence is proved by Khalid P.W.4 and the parties had no background of serious enmity except the tention created because of the earlier quarrel. The fact that Abdul Rehman first informant was F present in his Jawar field near the place of occurrence made him a natural witness. It is significant to point out that the defence has not denied the presence of Muhammad Khalid and Iqbal with the deceased at the time of occurrence. This admission supports the prosecution version that deceased in company of Khalid and Iqbal was present at Bus Stop Mubarik Pur when was 113 attacked by the accused.

21. The contention of the learned counsel that the co-accused of the appellant having been acquitted of the charge, it is not safe place of occurrence on the same evidence against the appellant. It is now settled principle of law in C this country that the principle falsus in uno, falsus in omni bus cannot be made applicable to the administration of criminal justice and the Courts are under duty to sift the grain from the chaff.

22. It is important to point out that the appellant despite raising a specific plea of self-defence and admitting the causing of injury to the deceased purposely did not produce Nazir injured in the witness-box and accordingly the appellant failed to establish the defence plea. Similarly, the plea of grave and sudden provocation remained weightless. However, the prosecution must prove the death as a result of voluntary act of the accused and his intention to kill, whether express or implied. If the death is the result of voluntarily act of the accused with no element of provocation, still he is entitled to show by evidence or by examination of the circumstance that the act on his part was unintentional or the result of provocation. A reasonable doubt if arising in the circumstances undoubtedly is extended to the accused, but in such like cases there must be the proof of the specific plea through direct or circumstantial evidence. It is not the duty of the prosecution to examine all possible defence might be taken by the accused. Anyhow the failure of the appellant to substantiate the plea of self-defence to avail the benefit of exception to section 300, P.P.C. the second line of defence itself, the Court has to examine the plausibility of such plea to be accepted. In a criminal case it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence and if after examination of the evidence, the Court is of the D opinion that there is a reasonable possibility of the correctness of the defence plea, the accused entitles to the benefit of doubt not as a matter of grace but as of right. Thus it will be seen that the plea of self-defence was specifically raised and some evidence was also led in support thereof which evidence was found to be inadequate to bring the case within the purview of Exception IV to section

300. The plea of grave and sudden provocation being unfounded cannot be given any weight.

23. In the facts of the present case, in no manner of doubt, the defence plea raised by the appellant is not substantiated by a convincing evidence, therefore, the possibility of any reflection on the prosecution case is excluded. Needless to emphasis that the defence plea has no legs to stand. Law allows an accused the benefit of reasonable doubt not of imaginary nature and what is reasonable doubt is essentially a question to be judged and in each case in the IF light of the facts and circumstances appearing on the record.

24. The stress of the learned counsel that non-production of the witnesses of the occurrence namely Khalid and Iqbal was not without purpose which effects the prosecution case.

25. Undoubtedly, as a general rule, all witnesses should be called to the witness-box but it is not obligatory to the prosecution to call all witnesses on the same facts desired to be proved. The fate of the case rest on the quality of the evidence and not quantity. However, it is a matter with the discretion of the prosecution to produce its evidence with a particular number of witnesses. The non-production of a witness if has some material effect on the defence, no doubt, notice is taken of but the effect if any must be seen in the evidence as a whole to come to a conclusion.

26. Finally, learned counsel argued that the appellant, a young man of 25/26 years act--ig under the influence of his uncle Nazir Sipra, fired a single shot at the deceased deserves leniency in the matter of sentence.

27. Having given our careful perusal to the evidence on record and the circumstances of the case, we are of the considered opinion that the case against the appellant is established beyond any reasonable doubt and his conviction under section 302, P.P.C. is unexceptionable. However, the fact that there was no serious enmity between the parties and the appellant being a young man having failed to pocket the insult to his uncle fired a single shot at the deceased, is a mitigating circumstance for lesser penalty. We accordingly do not confirm the death sentence awarded to him and alter the same into life imprisonment, maintained the sentence of fine and the compensation. However, the appellant shall be entitled to the benefit of section 382-B, Cr.P.C. subject t4 the payment of fine and compensation. The appeal with the above alteration in the sentence stands dismissed and the Murder Reference is answered in negative. N.H.Q/Z-128/L Sentence reduced.