2002 P Cr (PLP)

Penal Code (XLV of 1860)‑‑‑ ‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Accused remained in custody of police for 5 days after his arrest‑‑‑Magistrate who recorded confessional statement of accused had admitted to have not mentioned that he disclosed his identity to accused‑‑‑Nothing was on record showing that Magistrate had put question about period of custody or that he disclosed his identity to accused‑‑‑Magistrate had not assured accused that in case accused did not make confession, he would not be remanded to police custody‑‑‑For safe administration of justice, confessional statement was ruled out from consideration‑‑‑Prosecution witnesses though were brothers of deceased, but mere relationship was not enough to discard their testimony because no previous blood feud enmity or ill‑will existed between accused and such witnesses so as to come out with a false charge of murder against accused‑‑‑One of prosecution witnesses stuck to his version given earlier in report and his such version could not be shattered in cross‑examination and other prosecution witness corroborated his testimony on all material aspects and nothing damaging could be brought out during cross‑examination‑‑‑One empty of .30 bore recovered from (b) Ocular testimony consisting ' of P. Ws. 5 and 6 is not reliable being interested and close relatives of the deceased. The claim of production of pistol by the father of the appellant is fake and fictitious as the house was searched on the date of the arrest of the appellant and nothing was recovered and further Khan Zada was not produced in the witness‑box by the prosecution.

4. The appellant was arrested on 17‑5‑1996, while he was produced before the Magistrate on 21‑5‑1996 and thus remained in custody of the police for 5 days. Akbar Khan, Magistrate (P. W.9) conceded in the cross‑examination that he only put questions which appeared in the questionnaire for the purpose of satisfying himself. He further admitted that except the certificate and question. he did not make any disclosure to the appellant. Again, he admitted to have not mentioned that he disclosed his identity to the appellant There is nothing in the questionnaire that he put question about the period of custody or that he disclosed his identity. Similarly he never assured the appellant that in case he did not make confession, he would not be remanded to the police custody. This being the position, for safe administration of justice, we rule out of consideration the confessional statement. No doubt P. Ws. Muhammad Yasin and Azmatullah are brothers of the deceased but mere relationship is not enough to discard their testimony. There is no previous blood feud enmity or ill‑will so as to come out with a false charge of murder against the appellant. Appearing in the witness‑box P.W. Yasin stuck to his version given earlier in the report and he could not be shattered in the cross‑examination. Similarly Azmatullah P. W.6 corroborated the testimony of P.W.5 on all material aspect and nothing damaging could be brought out during the cross‑examination. The three brothers including the deceased had their morning tea before the tragedy and medico‑legal report confirmed as the stomach of the deceased contained fluid diet. One fire‑shot was heard and according to Dr. Khalid Farooq, Medical Officer, D.H.Q. Hospital, D.I. Khan (P.W.4) the deceased suffered fire‑arm injury 1/4" x 1/4" at the back of left side of skull with corresponding exit wound of 1/3" x 1/3". One empty of .30 bore was recovered from the spot which was found by the Ballistic Expert to have been fired from the pistol produced by the rather of the appellant. One spent bullet was also recovered from the inside of the shop. The site plan revealed that the three brothers lived in one house and towards the west is the shop of the deceased which is in fact a portion of the house. Similarly the shop of P.W. Azmatullah is adjacent to the house towards the north. Muhammad Yasin P. W. was at point No. "A" which is hardly at a distance of 8 paces from the place of the accused when he was seen by the former. No doubt P.Ws. had riot seen the firing with their own eyes but in the circumstances of the case it would hardly make. any difference. Azmatullah P.W.6 claimed that they had opened their shops and he happened to be outside when the appellant Came and entered into the shop of. Naqibullah. At that time P.W. Yasin Khan had also come out of the house. He heard the report of fire‑shot, and they both rushed there, saw the accused decamping and inside the shop they found their brother lying injured in pool of blood. None else was present. The conclusion is inevitable that the culprit was indeed the appellant and none else. The pistol was produced by the father of‑ the appellant on 23‑5‑1996 to the investigating Officer in the presence of Mir Baz F.C. and Muhammad Ali (P.Ws.) P.W. Mir Baz F.C. did state that Khan Zada produced the .30 bore pistol Exh. P.1 to the Investigating Officer. Non‑production of Khan Zada does not reflect on the prosecution case for the reason that being father of the appellant, he could not be expected to give evidence on a capital charge against his son. , It is a matter of common knowledge that people are generally reluctant to be a witness in criminal cases. The pistol and the crime‑empty recovered from the spot was sent to the Fire‑arm Expert who reported that the crime‑empty was wedded to ID the pistol. The house was searched on the date of the arrest of the appellant and if nothing was recovered on search that does not mean that the pistol was not used. The pistol is a small weapon which can be kept hidden easily.

7. Considering the ocular testimony, the various recoveries, report of the Expert and the medical evidence, we are clear in our mind that the prosecution has successfully established the charge against the appellant. Taking up the question of sentence, the appellant was arrested on 17‑5‑1996 and he was sentenced to death on 12‑10‑1998 and he remained in the death cell as condemned prisoner uptil 18‑11‑1999 when the case was again remanded for retrial to the Court of Session. Again he is in death cell, since 11‑6‑2001. Twice he faced the rigors of trial E since 17‑5‑1996, just one shot was fired although he could resort to further firing. Further relying on the case of Iftikhar Ahmad alias Gulla v. The State PLD 1990 SC 820 and principles laid down in the case of Bahadur Ali and others v. The State and others 2002 SCMR 93, we reel that the sentence of imprisonment for lifc would meet the ends of justice. . Accordingly the death sentence is altered to one for imprisonment for life with the benefit of section 382‑B, Cr.P.C. The award of compensation, under section 544‑A, Cr.P.C. is maintained. Death sentence is not confirmed. H.B.T./514/P Order Accordingly