1. IFTIKHAR HUSSAIN BUTT, JJ-- As the above stated appeal and reference arise of the same incident and the judgment of District Criminal Court, Mirpur, we propose to dispose of the same by this single judgment.
2. The facts forming the background of the instant appeal and reference are that complainant, Farrukh Zareen, lodged a written F.I.R. on 6-7-1999 at 6-45 a.m. at Police Station Thothal, District Mirpur. It was alleged that his deceased father Gul Zareen was employed as a reader in the Court of Sub-Judge Dudyal. On 6-7-1999 at 5-00 a.m., he along with his deceased father and Murawwat Hussain uncle came out of the house. His deceased father had to attend his office at Dudyal. The complainant along with his uncle Murawwat Hussain, who is a painter, was also proceeding towards Nathia. When he along with his father Gul Zareen and uncle Murawwat Hussain reached near the house of Muhammad Bashir son of Sher Alam at Gadian, all of a sudden Tariq Mahmood, accused, appeared at the place of occurrence while raising a Lalkara. The accused was armed with a .30 bore pistol, who fired three shots of pistol one after another which hit him on the chest and back. In consequence of the firing his father injured and died spontaneously. The accused fled away towards Nathia after commission of the offence. The occurrence was witnessed by the complainant, Murawwat Hussain his uncle and Muhammad Bashir.
3. The motive behind the occurrence has been stated to be that some days prior to the occurrence an altercation took place between the accused and Javed Iqbal brother-in-law of the deceased.
4. The accused had a grudge against the deceased that he did not negotiate a compromise between them.
5. On this report a case under section 302, A.P.C. was registered by Ansar Ali, A.S.-I. Police (P.W.14).
6. On 6-7-1999 after arriving at the spot, Ansar Ali A.S.-I. Police (P.W.14) prepared an inquest report Exh.P.Q. and an injury form of the deceased Exh.P.R. On the same day, he took into possession a cash of Rs,8,316 P.5, three keys P.6, a prescription written by Dr. Marghoob Khan P.14, an amulet P.7, a card about "Nad-e-Ali"P.8, an application of Malik Muhammad Nazir Junior Clerk P.9, an electricity bill pertaining to Account No,105CC P.10, an electricity bill pertaining to Account No,217CCP/11, one wrist watch Seiko 5 P.12 (vide recovery memo. Exh.P.E.), one file of Civil Case No,6 of 1994 P.13 (vide recovery memo. Exh.P.F.), blood-stained clay from the place of occurrence P.1 (vide recovery memo. Exh.P.C.), three empties of .30 bore pistol P.2, P.3 and P.4 (vide recovery memo. Exh.P.D.) testified by Farrukh Zareen (P.W.1) and Murawwat Hussain (P.W.2).
7. The blood-stained clothing of the deceased, trousers P.15, Shirt P.16 and Vest P.17 (vide recovery memo. Exh.P.G.) one pair of shoes () P.18 from the place of occurrence (vide recovery memo.
8. Exh.P.H.) were taken into possession by said Ansar Ali, A.S.-I. Police in the presence of Farrukh Zareen (P.W.1) and Sheraz Akhtar (P. W . 5).
9. The post-mortem of the deceased was conducted by Dr. Azeem Ratyal (P.W.13) C.M.O. District Headquarter Hospital, Mirpur on the same day vide its report Exh.P.BB. He noticed the following injuries caused by fire-arm on the person of the deceased:-- (1)An elliptical wound 1 inch diameter on the right posterior chest 3 inch below the spine of scapula with surrounding blackening of skin.
10. (2)A 1 inch diameter exit wound with everted edges on the back of left shoulder joint with fracture of corticoid process.
11. (3)An entry wound 1/4 inch in diameter with inverted edges 3 inch at the level and to the left of nipple. Lower border of 3rd rib close to the costal cartilages is fractured.
12. (4)An entry and exit wound forming an oblique track in upper lobe of right lung.
13. After the post-mortem, the dead body of the deceased was handed over to Farrukh Zareen (P.W.1) vide receipt Exh.P.L. On the same day, the accused was also apprehended.
14. On 8-7-1999 the accused led to the recovery of .30 bore pistol and magazine P.20 along with three rounds P.21, P.22 and P.23 (vide recovery memo. Exh.P.M.) attested by Sheraz Akhtar (P.W.5) and Muhammad Qadeer (P.W.6). Ansar Ali, A.S.-I. Police (P.W.14) also prepared the site plan (Exh.P.S.) of the place of recovery of weapon of offence.
15. On 4-8-1999 Muhammad Ashraf Khan, A.S.-I. Police (P.W.15) got prepared the site plan Exh.P.M. and a copy of Khasra Girdawari Exh.P.O. from Abdul Qayyum Patwari (P.W.12).
16. On 26-8-1999 a bullet P.19 extracted from the body of the deceased during the post-mortem was produced by Ashiq Hussain Constable No,1966 which was taken into possession by Ansar Ali, A.S.-I.
17. Police (P.W.14) vide recovery memo. Exh.P.K. in the presence of Farrukh Zareen (P.W.1) and Murawwat Hussain (P.W.2).
18. The report of Chemical Examiner is also at page 35 of challan file which discloses that the earth and clothes of the deceased are stained with blood.
19. A perusal of the report of Director, Forensic Science Laboratory Punjab which is appended on page 37 of the challan file shows that three crime-empties were found to be fired by the weapon of offence i,e, .30 bore pistol which was sent to him for his examination, allegedly recovered from the accused.
20. During the investigation, the offences under section 341, A.P.C. and 13/20/65, Arms Act were added and after completion of the investigation, the accused was challaned before District Criminal Court, Mirpur on 18-9-1999. The charge was framed under section 242, Cr.P.C. but the accused pleaded not guilty and opted for trial.
21. In support of the prosecution story Farrukh Zareen (P.W.1), Murawwat Hussain (P.W.2), Muhammad Bashir (P.W.3), Javed Iqbal (P.W.4), Sheraz Akhtar (P.W.5), Muhammad Qadeer (P.W.6), Ashiq Hussain, Constable Police No,1866 (P.W.7), Khalid Mahmood (P.W.8) Sabir Hussain Constable Police No,1862 (P.W.9), Tanveer Khalid Constable Police No,1866 (P.W.7), Khalid Mahmood (P.W.8), Sabir Hussain, Constable Police No,1951 (P.W.10), Sabir Hussain Head Constable Police (P.W.11), Abdul Qayyum Patwari (P.W.12), Ansar Ali, A.S.-I. Police (P.W.14), Muhammad Ashraf, A.S.-I. Police (P.W.15), Raja Muhammad Naseem Khan, D.S.P. Police (P.W.16), Sardar Muhammad Bashir Khan, S.-I. Police (P.W.17) and Muhammad Ishtiaq Record Keeper D.H.Q. Hospital, Mirpur instead of Dr, Azeem Ratyal (P.W.13) were produced.
22. After completion of the prosecution evidence, its salient features were put to the accused for his explanation during the examination under section 342, Cr.P.C. but the accused pleaded that he is innocent and a false" case has been concocted against him on account of enmity. No evidence was led in defence.
23. The trial Court also conducted purgation of the prosecution witnesses vide its order, dated 24-8- 2002, who were found "Adil".
24. The District Criminal Court, Mirpur, after completion of the trial, convicted and awarded the sentence of "Qisas" to the accused under section 302, A.P.C. The accused was further awarded one year simple imprisonment under section 13/20/65, Arms Act vide its judgment dated 18-3-2003. A reference has also been made by the trial Court for confirmation of the sentence of "Qisas". It is the aforesaid judgment which has been assailed through the instant appeal.
25. Ch. Ali Muhammad Chacha, Advocate, the learned counsel for the accused/appellant, argued that the impugned judgment being against the law, facts and justice is not sustainable. The learned counsel further contended that the instant case is of an unseen occurrence but the appellant has been roped in on account of enmity. According to him, Zafar Iqbal brother of the deceased is real culprit, who has either killed the deceased or manoeuvred his murder. The learned counsel also submitted that the F.I.R. of the case was registered after the preliminary investigation, therefore, cannot be relied upon. The learned counsel further maintained that the motive alleged by the prosecution is not natural because it is against the human nature that the accused did not commit the murder of Javed Iqbal with whom he had some altercation and instead he chose to put to death the deceased on account of grudge that he did not negotiate a compromise between the accused and Javed Iqbal. The learned counsel pointed out that the evidence of the eyewitnesses is not reliable because they are not only co-related but their presence at the time of occurrence could also not be proved. The learned counsel maintained that the deceased hurt the feelings of his brother Zafar Iqbal while entering into the room of his newly-wedded wife on the 1st evening of the marriage which resulted in divorce between the spouses and before expiration of period of "Iddat", the deceased himself solemnized marriage with the aforesaid lady, in consequence of which the occurrence took place. The learned counsel pressed into service the submission that the ocular version could not be corroborated by any independent circumstance, therefore, it loses its credibility. The learned counsel agitated that in the post-mortem report it has been recorded by Dr. Azeem Ratyal (P.W.13) that according to police information somebody opened fire on deceased at about 5-30 a.m. shooting him dead on spot which shows that even at the time of post-mortem the real culprit was not known to the prosecution. The learned counsel argued with vehemence that the trial Court has only reproduced the prosecution evidence without discussing the merits of the case, as such the impugned judgment is not sustainable. The learned counsel finally submitted that the prosecution case is full of contradictions, discrepancies and inconsistencies on this account it cannot be relied upon and the punishment of Qisas cannot be awarded on such type of evidence. In support of the arguments, the learned counsel cited the following authorities:---
(1) PLD 1963 SC 17; (2) PLD 1964 Kar. 264; (3) PLD 1965 Kar, 76; (4) PLD 1969 SC 27; (5) 1971 SCMR 432;
(6) PLD 1976 SC 241; (7) PLD 1977 Lah. 1253; (8) PLD 1982 Lah. 577; (9) PLD 1990 Kar. 314; (10) 1990 PCr.LJ 1765.
26. Ch. Khalid Rasheed, Advocate, the learned counsel for the complainant, controverted the arguments raised by the learned counsel for the accused/appellant and submitted that the accused committed the murder of the deceased in a pre-planned manner, as such only he is nominated in the F.I.R. The learned counsel further argued that it is a daylight occurrence and the names of eye-witnesses have been incorporated in the F.I.R., who have no ulterior motive against the accused. The learned counsel also contended that identification of the accused is not disputed. Thus, the question of substitution of the accused does not arise. The learned counsel maintained that the evidence of eyewitnesses is clear and convincing which has been amply supported by the sufficient corroboratory evidence. According to him, the weapon of offence, a pistol, has been recovered at the instance of the accused and the recovery witnesses are also reliable. The learned counsel pointed out that the prosecution story is supported by four eye- witnesses, thus, standard of evidence is sufficient for awarding the sentence of Qisas. The learned counsel pressed into service the submission that minor discrepancies arising in the evidence do not damage its case because the eye-witnesses have clearly supported the main story of the prosecution. The learned counsel zealously contended that it has not been mentioned in the post- mortem report Exh.P.BB. that an unknown person has committed the offence, therefore, the mere recording of word `somebody' in the post-mortem report does. not demolish the prosecution story.
27. The learned counsel further maintained that the prosecution has succeeded to prove the guilt against the accused beyond any reasonable doubt, therefore, the impugned judgment does not warrant any interference by this Court. In support of the arguments, reliance was placed upon the following case-laws:--
(1) 1985 PCr.LJ SC (AJ&K) 898; (2) PLD 1986 Lah. 286; (3) PLD 2001 SC (AJ&K) 1; (4) 2001 YLR 1164; (5)
28. 2001 SCMR 199; (6) 2001 PCr.LJ 268 and 524.
29. Sardar Muhammad Raziq Khan, the learned Additional Advocate-General appearing on behalf of the State has fully owned and supported the arguments raised by the learned counsel for the complainant.
30. In the light of arguments addressed at Bar, we have carefully examined the file. A perusal of the record shows that the accused/appellant is named in the F.I.R. and a specific role of firing shots upon the deceased has been attributed to him. The weapon of offence, a .30 bore pistol, has also been recovered at his instance.
31. In support of its tale, the prosecution has produced four eyewitnesses, amongst them Muhammad Shabbir (P.W.3) is an independent witness. He is neither related to the complainant party nor nurses any grudge or rancor against the accused party.
32. Farrukh Zareen complainant (P.W.1), has categorically deposed that he along with his deceased father and uncle Murawwat Hussain, who is a painter, were proceedings towards Mirpur because his deceased father had to attend the office at Dudyal, whereas his uncle Murawwat Hussain was going for a painting work and when they reached near the house of Muhammad Bashir at Village Gadian, the accused/appellant suddenly appeared at the scene of occurrence, who fired three shots successively with .30 bore pistol which hit him on the chest and back.
33. Murawwat Hussain (P.W.2) has fully supported the above stated version of the complainant and stated that he along with deceased and Farrukh Zareen (P.W.1) were proceedings towards Nathia.
34. When they reached nearby the house of Muhammad Shabbir at Village Gadian, the accused/appellant appeared at once while raising hollo and fired three shots with .30 bore pistol which hit the deceased on his chest and back.
35. Muhammad Bashir (P.W.3) testified that on 6-7-1999 at about 5-30 a.m. on hearing the sound of two fires he opened his gate and saw that the accused fired third shot upon the deceased, and when he shouted that he has recognized the accused as Tariq Mehmood son of Bostan, he fled away from the place of occurrence. A careful perusal of entire statement of Muhammad Shabbir reveals that he is natural and trustworthy witness.
36. The above stated minute scrutiny of the eye-witnesses shows that the ocular version is clear, cogent, convincing and confidence-inspiring. The minor discrepancies and variations appearing in the above stated testimony cannot be described as contradictions, thus, not sufficient to demolish the case of prosecution because these are natural which prove that the eye-witnesses are not telling parrot like story, as they strongly support the main story of the prosecution. Our this view finds support from a case reported as Waris Hussain Shah v. Abid Hussain Shah and 3 others 2001 PCr.LJ SC (AJ&K) 268, wherein it has been observed as under:-- "There is no contradiction as far as the statements of the witnesses regarding the occurrence are concerned. Contradiction means negation of version of the prosecution case. Mere discrepancies in the details of the facts do not amount to contradiction."
37. At this stage, we also want to resolve this objection raised by the learned counsel for the accused/appellant that Farrukh Zareen (P.W.1) and Sheraz Akhtar (P.W.5) are sons of the deceased whereas Murawwat Hussain (P.W.2) is his brother and Muhammad Qadeer (P.W.6) is his cousin, therefore, their evidence is not worthy of credence. Suffice to note that, it has been persistently laid down by the superior Courts that mere relationship is no ground for discarding the evidence of witnesses unless they are found inimical to the accused person. 2001 PCr.LJ 524.
38. The basic principle of appreciation and appraisal of the evidence is its intrinsic value. The close related witness can be as reliable as a completely unknown and stranger witness. Therefore, credibility of a witness does not depend upon relationship but it flows from the statement which he deposes. It is the nature and quality of the statement of a witness which should evoke confidence and trust. If it appears that a witness is telling truth then his evidence will be sufficient and reliable to sustain the prosecution case.
39. In support of its case, the prosecution has also produced Javed Iqbal (P.W.4) and Khalid Mehmood (P.W.8). Javed Iqbal (P.W.4), a brother-in-law of the deceased, deposed that Khalid Mehmood (P.W.8) told him on the evening of the occurrence that the accused/appellant killed the deceased by firing shots upon him but he did not inform the police about the fact that P.W.8 is an eye-witness of the occurrence. Later on he appeared before the police on 30-8-1999. The question arises as to why he chose to keep quiet about the murder of his brother-in-law for about 54 days and did not inform the police about an eye-witness.
40. Similarly, Khalid Mehmood (P.W.8), a friend of Farrukh Zareen (P.W.1) who according to him is an eye-witness, did not approach the police to get his statement recorded under section 161, Cr.P.C. for about 54 days. He also failed to give any plausible explanation for not informing the police about the occurrence for such a long time.
41. A careful perusal of the aforementioned evidence shows that both of P.W.4 and P.W.8 are not telling the truth, therefore, their belated statements recorded after 54 days of the occurrence cannot be relied upon. PLD 1965 (W.P.) Kar. 76 and PLD 2002 Quetta 97. In this view of the matter, the Court below failed to appreciate the evidence of abovementioned P.Ws. in its true perspective and misdirected itself to rely upon their evidence. In this regard, the reasons given by the trial Court are also not correct.
42. As stated above, the prosecution case stands proved in the light of the evidence of Farrukh Zareen (P.W.1), Murawwat Hussain (P.W.2) and Muhammad Bashir (P.W.3), therefore, conviction under law can be recorded on such evidence without any corroboration but in the instant case the prosecution story has been supported by sufficient corroboratory and confirmatory evidence. The recoveries of cash Rs,8,316 P.5, three keys P.6, a prescription P.14, an open amulet P.7, a card of "Nad-eAli" P.8, an application of Malik Muhammad Nazeer, Junior Clerk Dudyal P.9, electricity bills P.10 and P.11 a wrist watch Seiko-5 P.12, a file of Civil Case No,6 of 1994 P.13, blood-stained earth P.1 and three empties of .30 bore pistol P.2, P.3 and P.4 recovered from the place of occurrence also support the prosecution story. The place of occurrence has not been disputed and it is found that the deceased was killed at the place as deposed by the eye-witnesses. It appears from the post- mortem report Exh.P.BB. that in consequence of firing shots severe bleeding started inside the chest leading to haemothorax causing cardio respiratory failure. The recovery of blood-stained earth and clothes of the deceased trousers P.15, Shirt P.16, vest P.17, pair of his shoes P.18 worn at the time of occurrence and the bullet P.19 extracted from his body during the post-mortem is also a piece of confirmatory evidence. The above mentioned recoveries have been testified by Farrukh Zareen (P.W.1), Sheraz Akhtar (P.W.5) sons and Murawwat Hussain (P.W.2) brother of the deceased, therefore, an objection raised by the learned counsel for the appellant that aforementioned recoveries cannot be taken into consideration because these have not been witnessed by the independent witnesses, does not require serious consideration. It will be useful to mention here that the need for corroboration arises by way of additional caution in order to remove certain type of doubts from the mind of the Court, therefore, the strict compliance under section 103, Cr.P.C. is not necessary in case of recoveries or seizure memos. made by the police. Similarly, mere relationship of the witnesses of recovery memo. is not a ground to reject their testimony dubbing the same as doubtful. 2001 PCr.LJ 5241.
43. It has also been contended by the learned counsel for the appellant that recovery of .30 bore pistol and rounds with magazine cannot be taken into consideration because no person from the locality was associated at the time of afore-stated recovery and it has also been witnessed by Sheraz Akhtar (P.W.5), a son, and Muhammad Qadeer (P.W.6), a cousin of the deceased.
44. It may be observed that the aforesaid recoveries are also testified by Ansar Ali A.S.-I. Police (P.W.14) along with P.Ws. 1 and 2. It has not been proved on the record as to whether the police had some grudge or previous enmity against the accused to falsely connect him with the recoveries. His evidence, therefore, is as good and reliable as that of any other witnesses. 2004 PCr.LJ 890.
45. Abdul Qayyum Patwari (P.W.12), who prepared a site plan Exh.P.M., has also supported the prosecution version which proves the N place of occurrence, even otherwise the place of occurrence is not disputed by the defence.
46. The next question which requires consideration is as to whether the F.I.R. was lodged after preliminary investigation and deliberation. We do not find any substance in this argument of the learned counsel for the appellant because the F.I.R. was promptly lodged. It is genuine which discloses the name of the accused and the eye-witnesses. It has also been supported by Farrukh Zareen (P.W.1) and further corroborated 0 by Ansar Ali (P.W.14). The report of the occurrence was made within one hour and fifteen minutes, therefore, it eliminates the possibility of falsification or false implication. Furthermore, there is no dispute "about identification of the accused, therefore, it allays all the doubts about it. The discrepancy pointed out by the learned counsel for the appellant about the timing of filing of F.I.R. and remaining police on the place of occurrence is not of such a material nature that it may affect the entire case, when it stands corroborated and supported by eye-witnesses. In this manner, minor discrepancies and contradictions in the F.I.R. and the statements of the eye-witnesses cannot render the ocular testimony unreliable and untrustworthy. Reference can be made to a case reported as Inayat Masee v. The State 1980 SCMR
937. F.I.R. in the present case was lodged by an eye-witness at the police station, therefore, it cannot be held that it is an unseen occurrence and the F.I.R. was lodged after IQ preliminary investigation and deliberations.
47. Now the question which needs determination as to whether the secondary evidence of Muhammad Ishtiaq, Record Keeper D.H.Q. Hospital, Mirpur instead of Dr. Azeem Ratyal (P.W.13) is admissible and it can be used against the accused. It is admitted on the record that Dr. Azeem Ratyal (P.W.13) was not available at the relevant time, who had left for England and his repatriation was not possible in the near future. Therefore, his evidence could not be recorded within reasonable time. In such state of affairs, the evidence of Muhammad Ishtiaq, Record Keeper was recorded in his capacity of secondary evidence, which is admissible in evidence and sufficient to meet the legal requirement in the light of the provisions of Article 46 of Qanun-e-Shahadat Order.
48. PLD 1997 Lah. 202.
49. The learned counsel has strenuously argued that the deceased was murdered by his brother Zafar Iqbal, who was angry with the deceased on account of suspicion of illicit relations with his wife who was divorced by Zafar Iqbal and later on married to the deceased. We do not find any merit in this argument of the learned counsel because it is on the record that the aforesaid marriage was solemnized nine years prior to the occurrence and no tangible evidence has been brought on record in support of the defence version whereas on the other hand the eye-witnesses have clearly implicated the accused/appellant with the offence of murder.
50. So far as an objection raised by the learned counsel for the accused/appellant is concerned that a note appearing in the column "information furnished by police" of post-mortem report to the effect that somebody opened fire on him means that even at the time of post-mortem, the real culprit was not known to the prosecution, does not render any help to him because the F.I.R. and the inquest report have been amply proved wherein the accused has been clearly nominated by the complainant and the eye-witnesses have also been named therein.
51. The learned counsel has laid much stress upon this argument that when the prosecution and defence versions are considered in juxtaposition with each other and if from the entire evidence reasonable possibility of defence version rings true then it will react on the whole prosecution case.
52. In this regard the learned counsel cited PLD 1976 SC 241. There can be no cavil with the argument and the proposition laid down by the apex Court of Pakistan but in the peculiar facts and surrounding circumstances of the case, when both the versions of prosecution and defence are taken in juxta-position and appraised in its true perspective, it reveals that the prosecution evidence is reliable, natural and trustworthy, supported by eye-witnesses and sufficient corroboratory and confirmatory evidence whereas the version set up by S defence seems to be improbable, concocted belated and fanciful which is not supported by any strong circumstance.
53. As far as the question of motive is concerned, the prosecution has alleged that due to an altercation of deceased with the accused, some days prior to the occurrence at Pir Jafar Tehsil Sarai Alamghir, the accused was angry with the deceased as he did not take pains to negotiate compromise between him and Javed Iqbal (P.W.4). As it has been held earlier that the statement of Javed Iqbal is not credible being not only a belated statement but also coming from an impeachable source. A prudent mind cannot accept this version of the prosecution that the accused chose to do away with the life of deceased for not negotiating a compromise and did not kill Javed Iqbal (P.W.4) with whom he had some grudge and animus. Therefore, the motive set up by the prosecution is obscure, weak and ambiguous.
54. Now we deal with another objection of the learned counsel pertaining to motive. According to the learned counsel for the accused/appellant strong motive of the offence set up by the prosecution could not be established by any independent source which throws shadow of doubt on entire prosecution version, in such state of affairs, the Court has to scrutinize the prosecution evidence more cautiously. The learned counsel has cited PLD 1969 SC 27 and PLD 1990 Cr. Cases (Kar.) 418 in support of above contention. There is no cavil with the principle enunciated in the authorities referred to by the learned counsel for the appellant that when motive is alleged but not proved then the prosecution evidence should be examined cautiously but at the same time, the absence or weakness of the motive is immaterial if the prosecution otherwise proves the case by convincing and credible evidence. However, it is relevant and important on the question of sentence. A host of case-law owns this view but we have decided to quote only two cases here:-- In a case reported as Shabbir Ahmad v. The State and another 1997 PCr.LJ 1539 it was opined as under:-- "On the point of motive the guiding principle seems to be the one which was laid down in Ahmad Nisar's case that what truly motivates the accused person to commit a crime is best known to him or not to others. However, if motive is not proved absence of a motive may assume importance. In given circumstances of the case it may be deemed appropriate not to award death sentence for safe dispensation of justice."
55. In a case reported as Mumtaz. Hussain and another v. Muhammad Arshad and 2 others 2001 PCr.LJ 225 the following dogma was enunciated at page 232 of the report:-- "There is ample authorities in support of the preposition that if a murder committed is not premeditated and motive is shrouded in mystery, the capital punishment is not awarded, especially so when the offender is teenager."
56. The prosecution case is manifestly proved by the evidence of three eye-witnesses amongst Muhammad Bashir is an independent person who had no malice or rancor to falsely implicate the accused with the commission of crime. Sufficient supporting and corroboratory evidence is also available in support of ocular version. The time and place of occurrence, the presence of the eye- witnesses as well as of the accused has been amply proved, the medical evidence, the recovery of blood-stained earth and the empties from the place of occurrence, the recovery of blood-stained clothes of the deceased, the recovery of .30 bore pistol along with magazine and rounds at the instance of the accused and other incriminating evidence and material support the prosecution story.
57. On the above premises of the reasoning, Tariq Mehmood, accused/appellant, is found guilty of the offence of murder of Gul Zareen, deceased. At the same time we are convinced that the motive W alleged by the prosecution remains shrouded in mystery and it cannot be positively maintained that the deceased was fired upon just for refusing to negotiate a compromise between the brother-in-law and accused/ appellant. It seems that there was something else which had actually arranged the accused to attack the deceased. Keeping in view the facts, surrounding circumstances and details of the case, we think that the extreme penalty of law should not be imposed upon the appellant. In our opinion the ends of justice will be sufficiently met if we sentence him to suffer imprisonment for life, and we order accordingly.
58. We have also considered the extension of benefit of section 382-B, Cr.P.C. but we do not find any cogent reason to extend the concession in favour of the accused. The learned counsel for the convict did not point out any circumstance which would justify the extension of concession in his favour. In the light of peculiar facts and Y circumstances of the case we are not inclined to allow benefit of section 382-B, Cr.P.C. to the convict/appellant.
59. The nutshell of the above discussion is that we accept the appeal, convert the death sentence to life imprisonment under section 302(b). The Azad Penal Code (Amendment) Act, 1995 and also convict and sentence the accused/appellant to one month simple imprisonment under section 341, A.P.C. (which was not awarded by the Court below even after reaching the conclusion that an offence under section 341, A.P.C. was found to be proved). The sentence of one year simple imprisonment under section 13/20/65, Arms Act, awarded by the Court below is also maintained The reference is answered in the terms indicated above.