DILBAR vs STATE etc.

Shahji Rehman Khan, J.--The Prosecution story as spelt out in the FIR, is that on the day of occurrence the complainant Hasib Gul produced the dead body of his deceased son Jan Muhammad before the local Police at Police Station, Lahore and stated that he alongwith his sons Muhammad Hayat and deceased Jan Muhammad was going to the Bazaar of village Tordher. Jan Muhammad, deceased, was ahead of them at a distance of few paces. As soon as they reached near the 'Farsh' situated on Tordher Jalbai road, known as `Chontro Lar', meanwhile Dilbar appellant herein and Intihar, the, absconding co-accused, already sitting there, duly armed, started firing at Jan Muhammad with their intention to commit his murder, who on being hit died on the spot while his father and brother escaped unhurt. Both the accused decamped from the spot. Motive for the occurrence was stated to be previous blood feud between the parties. The matter was reported and a case under Section 302/34 PPC was registered against them, Vide FIR No, 525 dated 9.9.2003 in Police Station Lahor District Swabi.

2. After the arrest of the appellant and completion of the investigation, he was sent for trial to the learned Additional Sessions Judge, Lahor District Swabi, who on conclusion of trial found him guilty of the charge and convicted and sentenced him to death under Section 302 (b) of the PPC as tazie and to pay Rs,50,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. or in default to undergo further six months S.I., vide judgment dated 29.4.2000, while Intihar, the absconding co-accused, was, declared proclaimed offender in the instant case and perpetual NBWA was issued against him. Hence this Criminal Appeal and Murder Reference.

3. Learned defence counsel appearing on behalf of the appellant contended that the narration given by the P.Ws. does not fit in with the entries made in the site-plan notwithstanding it was admittedly prepared at their instance. No doubt the story of seeing the assailants is correct, the learned counsel added, but Hasib Gul, P.W.7 (complainant) and Muhammad Hayat, PW 8, being father and brother of the deceased, their testimony cannot be safely trusted upon in a case involving capital punishment, when the possibility of exaggeration in their testimony cannot be ruled out. The learned counsel in the alternative urged for conversion of the death sentence into imprisonment for life by submitting that when the ocular account furnished by the father and brother of the deceased, being interested witnesses, it cannot be Said with certainty that the occurrence has taken place in the manner as prescribed by them in their statements or shown in the FIR and thus this fact is still shrouded in mystery and the sentence of death shall be too harsh in the circumstances of the case.

4. As against that, the learned State counsel appearing on behalf of the State assisted by the learned counsel for the complainant argued that the account furnished by the P.Ws., besides being credible, confidence inspiring, in line with the medical evidence and entries made in the site-plan coupled with the absconsion, was rightly relied upon by the learned trial Court while convicting the appellant. In the absence of any mitigating circumstance, the learned counsel submitted, the sentence of death is not open to any interference, that too, when the previous blood feud between the parties as a motive stands unshakably established on the record.

5. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.

6. A perusal of the statements of Hasib Gul and Muhammad Hayat, P.Ws, would reveal that they furnished a natural and straight forward account of the occurrence by recounting the facts mentioned in the FIR. They clearly and distinctly stated the events and places wherefrom the deceased was going and he was fired at by the appellant. They were subjected to a lengthy searching cross-examination but nothing could be extracted from their mouths as could diminish the probative worth of their testimony. There is absolutely no conflict between the account furnished by them and the entries made in the site-plan, when seen with open eyes and attentive mind. There is also no conflict between the ocular account and the medical evidence as indeed they supplement each other. The account furnished by the official witnesses also appears to be natural and straight forward, when no significant discrepancy is noticed in their statements.

Omission, if any, on the part of the Investigating Agency to examine any person in the matter is not of much importance when the entire evidence on the record went unshaken and the offence was committed during absconsion. In this background, we have no hesitation to hold that the charge against the appellant has, been proved beyond any reasonable doubt and that he was rightly convicted by the learned trial Court.

7. The argument urged in the alternative is, however, not without substance, when according to the evidence recorded in the Court, there was previous blood feud between, the appellant and the family of the deceased and being closely related with each other, the fact that the occurrence has taken place in the manner that both, the appellant aged 68 years and his young son (absconding accused) fired at the deceased is still shrouded in mystery especially when it is not certain as to whose shot turned effective and is a begging question in the circumstances of the case, which cannot be answered from the available record. The normal sentence of death, in the circumstances of the case, shall certainly be too harsh. We, therefore, convert the sentence of death into imprisonment for life while the amount of compensation awarded by the learned trial Court is left intact. However, the appellant shall be entitled to the benefits of Section 382-B Cr.P.C.

This appeal is disposed of with the modification hinted to above. The murder reference is thus answered in negative.