' MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No,971 of 2004 (Anwarul Haq v. The State) and Murder Reference No,215 of 2004 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant, as both arise out of the same judgment dated 10-6-2004 passed by the learned Additional Sessions Judge, Shakargarh, District Narowal, whereby, appellant was convicted for the murder of Abdul -Ghaffar, under section 302, PPC and sentenced to death with a further direction to pay a compensation of Rs.1,00,000 as provided under section 544-A, Cr.P.C. To the legal heirs of the deceased. However, benefit of doubt was extended to two co-accused of the appellant, namely, Hassan Nizami and Jawadul Hassan, by way of acquittal from the instant case. Criminal Appeal No,1178 of 2004 was filed against their acquittal which was dismissed vide order dated 21-9-2004 passed by a learned Division Bench of this Court.
2. Brief facts of the case, as given by P.W.2 Nazir Ahmad (complainant) in the F.I.R. (Exh.PB/1) are that on 14-2-2003 at about 5-45 p.m., his wife Mst. Sheeman Bibi, after collecting sugarcane roots from the field of Ghulam Nabi Chaudhry, called their son Abdul Ghaffar(deceased) who, with his brother Zahid Husain @ Kala and paternal uncle Bashir Ahmad, reached there along with the cart.
According to the complainant, when the said roots were being loaded on the cart, Ch. Hassan Nizami along with his son Jawadul Hassan (both acquitted co-accused of the appellant) came at the spot, they objected to the picking of roots from the field and asked his son Jawadul Hassan and nephew to teach a lesson to Abdul Ghaffar(deceased), upon which, both opened attack and caused injuries on the person of Abdul Ghaffar (deceased) with their respective Chhurris i,e, Jawadul Hassan gave a chhurri blow on the right side of abdomen of his son Abdul Ghaffar while the Churri blows of Anwarul Haq landed on the chest of the deceased, upon which, he fell down on the ground and his intestines came out of his belly. It has further been mentioned in the F.I.R. That thereafter the accused decamped from the spot while Abdul Ghaffar died on the way to hospital.
3. After completion of investigation, challan was prepared and submitted before the learned triaj Court, copies were distributed to the accused as required under section 265-C of the Code of Criminal Procedure, charge was framed to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution produced as many as 12 witnesses during the trial. The appellant and his co-accused were examined under section 342, Cr.P.C. And acquitted co- accused of the appellant, namely, Hassan Nizami also made statement under section 340(2), Cr.P.C. Zulfiqar Ahmad and Qutab Nisaar appeared as D.W.1 and D.W.2 respectively regarding the innocence of Jawadul Hassan, acquitted co-accused.
5. Learned counsel for the appellant, at the very outset, submits that in the circumstances of the case, he would not challenge the conviction of the appellant but only pray for reduction of his sentence from death to imprisonment for life on the following mitigating circumstances:--
(i) That the appellant took a specific plea of madness and could not prove the same in accordance with law but the same factum has not been denied categorically by P.W.2 Nazir Ahmad (complainant);
(ii) That the acquitted co-accused of the appellant, namely, Hassan Nizami, while making statement on Oath under section 340(2), Cr.P.C., stated that the appellant has committed this offence under madness but he was not cross-examined in that regard;
(iii) That though in the F.I.R., it is alleged that the appellant gave Chhurri blows on the person of the deceased but the prosecution witnesses, namely, P.W.2 Nazir Ahmad (complainant), P.W.5 Mst.Sheeman Bibi, P.W.3 Zahid Hussain and P.W. Bashir Ahmad, in their examinations-in-chief, have stated that the appellant gave one Chhuri blow to the deceased;
(iv) That a co-accused of the appellant, namely, Jawadul Hassan, who was assigned the similar role, has been acquitted by the learned trial Court;
(v) That the Chhurri allegedly recovered at the instance of the appellant, as per record, was not sent to the office of the Serologist, because there is no report of the Serologist on the record;
(vi) That admittedly, P.W.2 Nazir Ahrnad (complainant) was riot present at the spot at the time of occurrence, as has been admitted by him during his cross-examination, whereas, according to P.
W.1 Muhammad Ilyas Patwari, the field, where the occurrence alleged to have taken place, belonged to Shah Bibi and others, therefore, no question of reprimanding by Ch. Hassan Nizami to the mother of the deceased, arises and, as such, the motive alleged by the prosecution is not proved; and
(vii) That the immediate cause of incident remained shrouded in mystery.
6. Conversely, the learned Additional Prosecutor-General for the State, while vehemently opposing this appeal, contends that the appellant is named in the F.I.R. With a specific role; that the natural eye-witness account was furnished by the prosecution and despite cross- examination the defence could shake nothing from their testimony; that the P. Ws. Had no enmity with the appellant to falsely depose against him during the trial; that even otherwise in such-like cases substitution is a rare phenomenon; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that the conviction and sentence awarded to the appellant by the learned trial Court be maintained.
7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.
8. The occurrence in this case took place on 14-2-2003 at about 5.45 p.m., the matter was reported to the police at 7.15 p.m. On the same day at Civil Hospital, Shakargarh through Exh.PB, the formal F.I.R. (Exh.PB/1) was registered at 7-30 p.m. while the distance between the place of occurrence and Police Station is 3 kilometers, so, in our view it was a case where F.I.R. Was promptly lodged which rules out the possibility of deliberations and consultations on the part of the. Complainant.
9. Although it has come on record that P.W.2 Nazir Ahmad (complainant), who was real father of the deceased Abdul Ghaffar, was not present on the spot, which factum he himself has admitted during his cross-examination, therefore, if evidence of this P.W. Is excluded from the prosecution evidence, even then there is sufficient evidence on the record to connect the appellant with the commission of the offence.
10. The most important eye-witness in this case is P.W.5 Mst. Sheeman Bibi who appeared before the learned trial Court and has categorically stated that it was the appellant who gave injury on the chest of her deceased son Abdul Ghaffar. She has also stated that the acquitted co-accused Jawadul Hassan inflicted injury on the left flank of the deceased. It has come on record that there was no enmity between the parties and the occurrence took place in the daylight which rules out the misidentification or false implication on her part. She is the real mother of the deceased and substitution, in such-like cases, is a rare phenomenon especially when P.W.5 Mst. Sheeman Bibi proved her presence at the spot.
11. The eye-witness account furnished by P.W.5 Mst.Sheeman Bibi, was corroborated by P.W.3 Zahid Hussain and P.W.4 Bashir Ahmad who though are closely related to the deceased but have no enmity with the appellant to falsely depose against him. They have also proved their presence at the spot and the defence could shake nothing from their testimony during the course of their cross-examinations. In the afore-referred circumstances, we are of the view that the eye-witness account furnished by the above eye-witnesses is trustworthy and confidence inspiring.
12. Apart from above, the ocular account furnished by the above eye-witnesses, finds support from the medical evidence furnished by P.W.10 Dr. Muhammad Lateef Afzal who conducted postmortem examination on the body of deceased on 15-2-2003 and the injury attributed to the appellant is very well there which, according to the said expert, proved fatal. The time given by him qua the receipt of injury, death and postmortem examination coincide with the time of occurrence given by the prosecution.
13. There is another aspect of the case. A suggestion on the behalf of the appellant was given that he had committed this murder under madness. But since a specific plea was taken on behalf of the appellant, therefore, burden to prove the said plea was on the appellant as required under Article 121 of the Qanun-e-Shahadat Order, 1984. We have gone through the whole evidence but no effort was made to discharge the said onus, so, the said plea is of no avail to the appellant.
14. Though learned counsel for the appellant has not challenged the conviction of the appellant but we have scanned the whole evidence to satisfy our conscience and are of the considered view that the prosecution has proved its case against the appellant to the hilt. We have noted that the learned trial Court has convicted the appellant under section 302, P.P.C. And omitted to mention either section 302(a) or 302(b), P.P.C. And certainly it is not a case under section 302(a), P.P.C. And would fall within the ambit of section 302(b), P.P.C., therefore, appellant's conviction under section 302(b), P.P.C. Is hereby maintained as Tazir.
15. So far as quantum of sentence of the appellant is concerned, we have noted that it is not a case of capital sentence for the reasons, firstly, a State counsel was provided to the appellant on his request and there are chances that the plea of madness raised by him might not have been seriously agitated on his behalf, secondly, a co-accused of the appellant, namely, Jawadul Hassan, who was assigned almost the similar role, has already been acquitted by the learned trial Court against whose acquittal appeal was dismissed by this Court, thirdly, the venue where the occurrence took place was not owned by the appellant party, therefore, motive alleged in the F.I.R., does not appear to be probable and it appears that nobody knows as to what exactly happened at the spot before the incident in question, fourthly, there was no previous enmity between both the parties to kill the deceased, fifthly, the eye-witnesses, in their examinations-in-chief have stated that the appellant caused only one Chhurri blow on the chest of the deceased while as per medical evidence there are two injuries on the chest of Abdul Ghaffar deceased. Therefore, if all these points are collectively taken into consideration, then, we are of the considered view, that it is a case of mitigation and not of capital punishment. In this regard reliance is placed on Iftikharul Hassan v. Israr Bashir and another (PLD 2007 SC 111), wherein, the learned Apex Court has been pleased to hold as under:-- " The difference of punishment for Qatl-e-Amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C. Irespectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C. And exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of Qisas if he is minor at the time of occurrence but in a case in which Qisas is not enforceable, the Court in a case of Qatl-e-amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCM R 4), Faqir Ullah v. Khalil-uz-Zaman (1999 SCM R 2203), Muhammad Akram v. State (2003 SCM R 855) and Abdus Salam v. State (2000 SCM R 338). The Court while maintaining the conviction under section 302(b) awarded him sentence of life imprisonment under the same provision and also granted him the benefit of section 382-B, Cr.P.C."
16. In this view of the matter, the sentence of death of the appellant is converted into imprisonment for life. The amount of compensation, as awarded by the learned trial Court, shall remain intact while in its default the appellant shall further suffer six months' SI. Benefit of section 382-B, Cr.P.C. Is extended to the appellant. This appeal stands disposed of with the above modification in the quantum of sentences.
' Murder Reference is answered in the Negative and sentence of death is Not Confirmed.