' MUHAMMAD ANWAR BHAUR, J.---This judgment shall dispose of Criminal Appeal No,2000/2003 (Imran Iqbal v. The State) and Murder Reference No,696/2003 (The State v. Imran Iqbal) sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant (Imran Iqbal), as both have arisen out of the same judgment, dated 31-3-2003 passed by the learned Additional Sessions Judge, Lahore in case F.I.R. No, 119 of 2001, dated 3-5-2001 registered under section 302, P.P.C. At Police Station Gowalmandi, Lahore, whereby the appellant was convicted under section 302(b), P.P.C. And sentenced to death. The appellant was further ordered to pay a sum of Rs,1,00,000 (one lac) to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. As compensation.
2. The brief facts, of the case, given in the F.I.R., (Exh.PA/1) lodged by Muhammad Saleem son of Shamas-ud-Din (complainant P.W.1.) are that on 3-5-2001, at about 7-40 p.m., the complainant along with his younger brother namely Naeem-ud-Din alias Lal and Muhammad Nadeem son of Muhammad Hanif were proceeding towards their house. As per F.I.R., when they reached at Nisbat Road, Chowk Gawalmandi, the appellant/accused Imran Iqbal was standing there on the road, who invited them for a cup of tea and they, in his company went to Samin Art Printing Press situated at 35-Nisbat Road Gawalmandi. It is further mentioned in the F.I.R. That Imran Mehmood son of Nazir Ahmad, (owner of Samin Art Printing Press) was also present there and when they were taking tea, Imran Iqbal asked the complainant's brother Naeem-ud-Din to listen him and they went in a room. Thereafter as per complainant, the complainant along with Muhammad Nadeem and Imran Mehmood also went inside the room, where Imran Iqbal asked the younger brother of the complainant that he will take revenge of his insult and hurriedly took out a pistol .30 bore from his pocket and fired a shot which hit the right side of belly of Naeem-ud-Din who was seriously injured.
According to the complainant, the said Naeem-ud-Din was taken to the Mayo Hospital, Lahore where, he after a while succumbed to the said injury. It was stated in the F.I.R. That the appellant then escaped from the spot along with the pistol and they could not apprehend him because of fear. The motive behind the occurrence as per F.I.R. Was that a quarrel took place between the in laws of Naeem-ud-Din and Imran Iqbal and some altercation had taken place between them, the matter was settled with the intervention of the inhabitants of the vicinity but the appellant bore a grudge in his mind about the incident and committed the murder of deceased Naeem-ud-Din on the pretext of a cup of tea.
3. After completion of investigation, challan was submitted. The appellant was charge sheeted, to which, he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as 11 P. Ws. In all and also tendered documentary evidence i,e, report of chemical examiner as Exh.P.M.
4. The appellant, in his statement recorded under section 342, Cr.P.C., claimed his innocence and denied the prosecution allegations levelled against him. The appellant, however, did not appear in rebuttal to the allegation levelled against him by the prosecution as required under section 340(2), Cr.P.C. And also did not produce any defence evidence.
5. Learned counsel for the appellant in support of this appeal contends that both the eye- witnesses produced before the trial Court i,e, P.W.1. Muhammad Saleem and P.W.2. Muhammad Nadeem are chance witnesses as none of them is resident of the area where the occurrence took place and have not given any plausible explanation for their presence at the spot, rather the explanation given by P.W.1. Goes against his statement wherein he has stated before the Court that his factory opened at 9/10 a.m. On Monday and work is done continuously up to 9/10 p.m. Till Saturday, whereas occurrence as per the prosecution, took place at about 8-00 p.m. And, therefore, it was not possible for the said witness to be present at the place of occurrence. Further contends that similarly, P.W.2. Muhammad Nadeem is also not the resident of that area as his place of business is situated at Ichhra, whereas he is resident of Dehli Gate and he has given no reasonable explanation for his presence at the spot. He argues that most natural witness of the incident was Imran Mahmood, in whose factory this occurrence allegedly took place and his name was mentioned as an ,ye-witness in the F.I.R. As well as in the calendar of witnesses but, later on he was given up as having been won over. While advancing his arguments learned counsel submits that the motive has been discarded by the learned trial Court and recovery has not been proved as there is no report of Forensic Science Laboratory.
6. So far as medical evidence is concerned, the learned counsel contends that the same is not exactly in line with the ocular account, furnished by the prosecution; that as per the site plan and the statement of the complainant (P.W.1.) the distance between the accused and the deceased was 5 feet but there are no signs of blackening around the wound of entry. Further submits that in this case F.I.R. Was not registered at the time as stated by the prosecution because admittedly the deceased was taken to the hospital in injured condition at about 8-40 p.m. And he expired at 9-30 p.m., his dead body was received in the mortuary at 11-30 p.m. On the same night whereas postmortem of the deceased was conducted on the next day at about 12-00 (noon), and the Doctor has stated that the postmortem examination was conducted after the receipt of police papers, therefore, the F.I.R., in this case was registered after due deliberation and consultations. It is further contended by the learned counsel that injured was taken to hospital by Imran Mahmood whose name was mentioned in the hospital record and had the complainant, being brother of the deceased accompanied him (injured/ deceased) his name would have been recorded therein and as such the prosecution case is full of doubts and the appellant, as a matter of right is entitled to acquittal.
7. While concluding his arguments, learned counsel contends that if the Court is not persuaded with his arguments regarding the acquittal of the accused, it is a fit case for the reduction of sentence of death for the reasons that the circumstances of the case are such that it is not known as to what exactly happened before the occurrence and it is a case of one fire shot and the appellant has not repeated the fire. Learned counsel relies upon re. Latif Ullah v. The State (2007 SCM R 994), re. Mirza Zaheer Ahmad v. The State, (2003 SCM R 1164), and re. Mehboob Ahmad and another v. Muhammad Khan alias Kalu and another (2003 SCM R 95).
8. Conversely, the learned Additional Prosecutor-General for the State, vehemently opposed this appeal on the grounds that there is no delay in the registration of the F.I.R. .And the same was lodged promptly; that there is no conflict between the ocular account and the medical evidence; that even no suggestion has been put to the prosecution witnesses for the false implication of the appellant in the instant case; that the appellant has committed a heinous offence of murder and has rightly been convicted and sentenced by the learned trial Court; that the place and time of occurrence is not disputed; that it is not a case of mistaken identity and that the prosecution has proved its case beyond any shadow of doubt against the appellant and that the conviction and sentence awarded to the appellant by the learned trial Court be maintained as there is no mitigating circumstances in this case.
9. We have heard the learned counsel for the appellant as well as learned Additional Prosecutor- General at length, have given anxious consideration to their arguments and have also scanned the evidence available on record.
10. In this case occurrence took place after 7-40 p.m. And matter was reported to the police on the same day at 9-15 p.m. Through statement of the complainant Exh.PA and the formal F.I.R. Exh.PA/1 was lodged at 9-30 p.m. The distance from the place of occurrence and the Police Station is about one and a half kilometer. The prosecution produced 11 witnesses to prove the case against the accused including two eye witnesses i,e, P.W.1. Muhammad Saleem and P.W.2. Muhammad Nadeem. Lengthy cross-examinations was conducted on behalf of the appellant on these witnesses but nothing adverse was brought on the record. Both these witnesses remained consistent on all the material aspects of the case. The injured, who had subsequently died was taken to Mayo Hospital and the P.W.1. Has stated that he along with Imran Mahmood (given-up P.W.) accompanied him and in the record of the hospital the name of Imran Mahmood is mentioned. The contention of the learned counsel for the appellant that if brother of the deceased i,e, P.W. I. (Muhammad Saleem) was accompanying the injured/ deceased to the hospital then his name should have been mentioned in the hospital record, has no force because name of only one person is to be mentioned in the record.
11. There is no conflict between the medical evidence and the ocular account. Dr. Muhammad Nazir Mughal (P.W.9) who conducted the postmortem examination on the dead body of the deceased has observed the following injuries on the person of the deceased:- '(1) A lacerated circular wound with inverted margins and collar of abrasion of size of 2.5 x.
1.5 c.m on right upper abdomen 12.5 c.m. Right of mid line and 14 c.m. Upper and outer to the umbilicus at 10'0 position 19.5 c.m. Below right nipple at 6'0 position.
(2) A abrasion of 1.5 x 1 c.m. Size on left side of fore-head 3.5 c.m. Left of mid line 1.5 c.m. Above mid right eye brow."
' The eye-witnesses i,e, P.W. I. And P.W.2. Both have stated that the deceased received only one fire- arm shot at right side of abdomen which is injury No,1 . Therefore, there is no contradiction between ocular and Medical evidence, while injury No,2 could be the result of fall on the ground. The distance as given by the P. Ws. Between the accused and the deceased is tentative and it cannot be taken as an exact as the witnesses are not expert of the field. Even otherwise in such like cases approach of the Court should be dynamic and technicalities be overlooked.
12. As far as motive part of the prosecution story is concerned, it has been mentioned by the prosecution in the body of the F.I.R. Exh.PA wherein it is stated that the in laws of the deceased (Naeem-ud-Din) had a quarrel with the Naeem-ud-Din (deceased) and accused (Imran Iqbal) prior to the occurrence. But the matter was resolved for the time being through the intervention of the residents of the Mohalla. However, the appellant Imran Iqbal nursed a grudge in his heart. When complainant Muhammad Saleem P.W.1. Appeared before the trial Court he deposed about the motive of the occurrence in the following manner:- "The motive behind the occurrence was that a quarrel has taken place between the in-laws of my brother Muhammad Naeem-udDin and accused and my brother was also present there at that time. Some altercation had taken place between my brother, his in-laws and the accused but the matter was settled by the neighbourers. The accused had grudge about the above incident, therefore, he committed the murder of my brother.".
13. We are aware of this fact that it is not necessary for the prosecution to prove the motive part for establishing the guilt of the accused. Because motive relates to a state of mind which is only known to the accused.
14. It is also a matter of record that none from the in laws of the appellant appeared to depose/prove the motive. At the same time nobody from the neighbourhood has come forward to prove the factum of motive though as per prosecution they resolved the dispute between the parties at that time and solicited a compromise. Motive given in Exh.P.A. Is somewhat different from the one deposed by the complainant while appearing as P.W.1. In these peculiar circumstances, the prosecution has failed to establish the motive and the same has rightly been discarded by the trial Court.
15. It has been held by the Hon'ble Supreme Court of Pakistan in a number of cases that it is not necessary for the prosecution to set a motive and if motive is not proved it will not affect the merit of the prosecution case if the case is otherwise proved. Reliance is placed on Muhammad Riaz v.
The State (2006 SCM R 954) wherein it is held:-- "That inadequacy or weakness of motive or where motive has been set up not proved or motive shrouded in mystery, would not be of any significance and would not lend any support to the case of the accused as a mitigating circumstance where the prosecution has otherwise proved its case beyond any shadow of doubt by an unimpeachable ocular evidence."
16. Another important point in this case is that no suggestion was put to the prosecution witnesses as to why the appellant has falsely been Implicated in phi case. The witnesses have no enmity with the appellant and no enmity was even suggested. Their presence at the place of occurrence is natural as the said place is situated at the distance of one and a half kilometer from the place of business of the P.W.1. Even the substitution, in a criminal is a rare phenomenon. Both the parties are known to each other which rules out even a mistaken identity.
17. The upshot of the above discussion is that the prosecution has proved its case against the appellant beyond any shadow of doubt through the evidence, which inspires confidence and has come through an un-impeachable source. Therefore, we maintain the conviction of accused under section 302(b), P.P.C.
18. However, as far as quantum of the sentence is concerned, there are two mitigating circumstances in this case. Firstly, the appellant did not repeat the fire shot the deceased had received only one firearm injury. Secondly, as per prosecution, the deceased was killed in a separate room, therefore, it is not known as to what exactly happened just before the occurrence between the deceased and the appellant. In this regard we are fortified by the law laid down in re.
Qamar Ehsan v. The State (2003 YLR 3036) wherein it is held that "Case would not be of capital punishment when convict did not repeat fire and nothing has been brought on record to show that transpired between deceased and convict immediately before occurrence."
Therefore, taking these circumstances into consideration the sentence of death of the appellant is converted into imprisonment for life with benefit of section 382-B, Cr.P.C.
19. The amount of compensation i,e, Rs,100,000 (rupees one lac) as directed by the learned trial Court is maintained, in default whereof he shall undergo further S.I. For six months. This appeal stands partly allowed in the above noted terms.
20. The Murder Reference is answered IN THE NEGATIVE and sentence of death IS NOT CONFIRMED.