QAMAR EHSAN vs THE STATE

BASHIR A. MUJAHID, J.---Qamar Ehsan son of Ehsan Sajid has challenged judgment, dated 31-8- 1998 passed by the learned Additional Sessions Judge, Wazirabad whereby he was convicted under section 302(b), P.P.C. And sentenced to death for causing murder of Asif Iqbal. He was also directed to pay a fine of Rs.80,000 or in default thereof to further undergo one year's S.I. It was further ordered that fine if realized, half of it shall go to heirs of the deceased.

2. Briefly facts of the case are that (Exh.P.D.) F.I.R. No.215 of 1995 was got registered by Muhammad Anwar P.W.4 at Police Station Ghakhar Mandi at 10-30 p.m. On 7-9-1995 alleging therein that on the same day he had gone to Butt Video Centre, Barkat Market and at about 8-00 p.m. When he was returning back and reached in front of Lone Madina Backery, Barkat Market, he saw his real brother Asif Iqbal and Qamar Ehsan (appellant) quarrelling with each other inside the shop and they were abusing each other. Ire the meantime Muhammad Akram, his brother and Muhammad Altaf P.W.5 also arrived there. They tried to intervene but Qamar Ehsan took out pistol and fired at Asif Iqbal, brother of the complainant hitting on his right thigh, who fell down after receiving fire-arm shot and Qamar Ehsan fled away from the spot Asif Iqbal was being taken to Gujranwala in injured condition who died on the way.

Motive for the occurrence was that Qamar Ehsan-appellant had a quarrel with the deceased few days ago.

Shahid Zafar, S.-I./S.H.O. P.W.8 after registration of the case undertook the investigation and prepared the injury statement of the dead body and inquest report through Exh.P.G. And Exh.P.F.

Respectively, and despatched the dead body for post--mortem examination. He also took into possession blood with cotton from the place of occurrence through Exh.P.E. He also took into possession last-worn clothes of the deceased after post-mortem examination through Exh.P.B. On 20-9-1995 he arrested the appellant, who while in police custody on 24-9-1995 led to the recovery of pistol P.5 which was taken into possession through memo. Exh.P.C. He completed the investigation and submitted challan against the appellant/accused.

4. Trial Court framed the charge which was denied by the appellant and he claimed, trial.

5. During the trial prosecution examined as many as 8 witnesses to prove the guilt of the accused.

6. Medical evidence was furnished by P.W.1 Dr. Muhammad Yousaf, M.O.T.B. Clinic Wazirabad, who on 8-9-1995 conducted post-mortem examination on the dead body of Asif Iqbal and found the following injuries:-- "A fire-arm entrance wound 0.8 c.m. x 0.8 c.m. x going deep, circular in shape on the right side of the tower abdomen, just above the right iliac crest, 5 c.m. Above and back to the right anterior superior iliac spine of the hip bone. Margins were inverted and burnt and blackening were present in an area of 2 c.m. x 2 c.m. Around the wound. "

7. Ocular account was furnished by Muhammad Anwar P. W.4 complainant who supported the version of the F.I.R. And narrated the occurrence. Muhammad Altaf P.W.5 was also an eye-witness of the occurrence. He corroborated the complainant. The remaining witnesses are of formal nature, and need not to be discussed.

8. Prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.K., report of Serologist Exh.P.L. And report of Forensic Science Laboratory Exh.P.M.

9. The statement of appellant/accused was recorded under section 342, Cr.P.C. He denied the allegations and claimed innocence and false involvement. In reply to question No.8 as to why this case against him and witnesses have deposed against him, he replied as under:-- "The P.Ws. Are inimical towards me and they have deposed falsely against me on account of said enmity. "

10. Trial culminated into conviction and sentence of the appellant as mentioned above. He has challenged his conviction and sentence through Criminal Appeal No.863 of 1998 while trial Court has sent Murder Reference No.466 of 1998 for confirmation of death sentence. Both the matters are outcome of same judgment, therefore, are being disposed of together.

11. In support of the appeal, learned counsel for the appellant has argued that it was un witnessed occurrence. Both the eye--witnesses are interested and chance witnesses; that the motive alleged has not been proved, therefore, the plea of accused that the deceased had come to the appellant for removing the bullet from his pistol is more plausible and believable and the conviction recorded against the appellant is not legal and proper and he is entitled for acquittal.

12. Conversely, appeal has been opposed by the learned State Counsel, who supported the impugned judgment.

13. Heard. Record perused.

14. The occurrence took place at 8-00 p.m. While the matter was reported to the local police at 10- 30 p.m. (same night) and the appellant has been nominated in the F.I.R. Muhammad Anwar P.W.4 complainant and Muhammad Altaf P.W.5 have no previous enmity for false implication of the appellant or substitution by letting of real culprits. The ocular account furnished by both these eye- witnesses has been fully corroborated by medical evidence and recovery of pistol. The occurrence took place inside the shop of the appellant and it was for him to explain how the occurrence took place. He has not examined any witness in support of his plea that the deceased had come to him for removing the bullet from pistol, therefore, after deep reappraisal of evidence, we find that the prosecution case has been established against the appellant beyond any shadow of doubt. We do not find any reason to interfere in the conviction recorded against him by the learned trial Court.

15. As far as the sentence is concerned --the motive alleged by the complainant was that there was a quarrel between the deceased and appellant few days ago but it has- not been proved by any independent evidence except his bald assertion. It is also admitted in the F.I.R. That the deceased was quarrelling with the appellant when they saw the occurrence. The appellant has not repeated the fire and case of the complainant is that he alongwith P.W. Tried to intervene when the appellant fired at the deceased. Nothing has been brought on record to show that what transpired between the deceased and the appellant immediately before the occurrence, therefore, we find that it is not a case of capital punishment. So, while maintaining the conviction, we reduce the sentence from death to imprisonment for life, which will meet the ends of justice. However, fine of Rs.80,000 is converted into compensation, to be paid to the legal heirs of the deceased, failing which the appellant will have to undergo six months S.I. Benefit of section 382-B, Cr.P.C. Will also be available to the appellant.

16. Appeal is dismissed with above modification.

17. Murder Reference is answered it negative.