SANA ULLAH vs THE STATE

' KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No,66/J of 2001 filed by Sana Ullah, appellant, who was convicted and sentenced by learned Sessions Judge, Mianwali vide his judgment, dated 20-2-2001 to death under section 302(b), P.P.C. With further direction to pay Rupees one lac as compensation to the legal heirs of the deceased or in default six months' S.I.

' Murder Reference No,237 of 2001 for confirmation or otherwise of death sentence of the appellant shall also be disposed of through this single judgment.

2. Brief facts of the case as disclosed by Ghulam Rasool complainant are that on the day of occurrence, i,e, 20-9-1999 he was sitting in the house of his sister, namely Mst. Kausar Bibi along with Muhammad Amir, and Muhammad Azeem, when Sana Ullah was also present there. Sana Ullah accused called Mst. Kausar Bibi inside the room and demanded money from her and- on her refusal he took out pistol .12 bore from his Dub and fired at Mst. Kausar Bibi (deceased), which hit her on the chest and died. She fell down and the accused fled away from the place of occurrence.

3. After registration of the formal F.I.R. Noor Muhammad, A.S.-I. P.W.8 went to the place of occurrence, prepared injury statement Exh.P.D. And inquest report Exh.P.E. Took into possession blood-stained earth vide memo. Exh.P.G. Prepared site plan Exh.P.G., thereafter, the investigation was taken over by Farhat Mahmood Bhatti, Inspector/ S.H.O. P.W.9 who on 28-9-1999 arrested Sana Ullah accused and got recovered pistol P.3 along with three live cartridges P.4/1-3, which were taken into possession vide memo. Exh.P.H. After completion of remaining formal investigation, the accused was sent to face the trial.

4. At the trial, prosecution in order to prove its case produced nine witnesses in all, thereafter, learned D.D.A. Tendered in evidence report of Chemical Examiner Exh.P.K., that of Serologist Exh.P.L.

And closed the prosecution case, then, the statement of the accused under section 342, Cr.P.C.

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 both the eye-witnesses, namely, Ghulam Rasool and Muhammad Azeem P.W.6 and P.W.7 were not the residents of, the place of occurrence, the house where the occurrence had taken place, was owned by Ramzan husband of Kausar Bibi deceased and that the said Ramzan neither appeared before the Investigating Officer nor before the learned trial Court. Further submits that the learned trial Court has disbelieved recovery of fire arm from the appellant.

According to learned counsel, the first version of the appellant before the police was that on the day of occurrence at 5-30 a.m. He had seen the deceased in a compromising position with a stranger, took out a pistol from another room and fired at the deceased while the stranger ran away. He submits that the appellant in his statement recorded under section 342, Cr.P.C. Has also stated that some unknown person committed the murder of the deceased when the deceased was seen in an objectionable condition. In nutshell learned counsel submits that the case of the appellant is not of a pre-meditated murder but he acted under the impulse of provocation and committed the murder of the deceased. Adds that it is a case of single shot also.

6. Learned counsel for the State submits that appellant having no direct relationship with the deceased; it was a pre-meditated murder, case of single accused and also of promptly lodged F.I.R.

7. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. The motive behind the occurrence as alleged by the prosecution was that the appellant demanded some amount from Kausar Bibi and on her refusal, he committed her murder. The time is of much significance in this matter. It does not appeal to reason that at such an early hours of the day, i,e, 5-30 a.m. When the sun has just arisen, the appellant would demand the money from deceased and on her refusal committed her murder but on the other hand, the eye-witnesses, who are though related to the deceased, had no animosity against the appellant. It has come on record that the deceased was wife of brother-in-law (URDU TEXT) of the appellant. They had no or mala fide against him, it is a case of single accused and in a case of such-like nature, substitution is a rare phenomenon. The ocular account furnished by these two eye-witnesses is fully supported by medical evidence furnished by lady Dr., Yasmeen Akbar, P.W.5, who conducted post-mortem examination on the dead body of deceased lady. The recovery is a corroborative piece of evidence and cannot be made basis either to maintain conviction or acquittal of the convict. We are thus, of the considered opinion, that the prosecution has been successful in proving its case against the appellant beyond any shadow of doubt. However, there are some mitigating circumstances in favor of the appellant such as, it is a case of single shot, the appellant did not take undue advantage and that motive in this case is also shrouded in mystery and nobody known as to what happened just prior to the occurrenc;, rather it is a case, according to prosecution itself, where the occurrence took place at the spur of the moment because the appellant gunned down the deceased on her refusal to pay him some amount.

' For what has been discussed above, we though maintain conviction of the appellant under section 302(b), P.P.C. But reduce his sentence from death to imprisonment for life with the benefit of section 382-B, Cr.P.C. Hence the death sentence of the appellant is not confirmed and murder reference is .

Sentence reduced.