' MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No,94-J of 2006 (Muhammad Ramzan v. The State) and Murder Reference No,312 of 2005 sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to the appellant, as both these matters have arisen out of the same judgment, dated 8-6-2005 passed by the learned Sessions Judge, Jhang, whereby, appellant was convicted for the murder of Mst. Taleh Bibi deceased under section 302(b), P.P.C. As Tazir and sentenced to death with further direction to pay a compensation of Rs.50,000 as provided under section 544-A. Cr.P.C. To the legal heirs of the deceased in default whereof to further undergo S.I. For six months.
2. Brief facts of the case, as given by P.W.1 Mst. Jantan Bibi (complainant) in the F. I. R. (Exh.PA/1) are that on 16-9-2004 at about 2:15 p.m. She was sitting in the courtyard of the house of Mst. Taleh Bibi wife of Zahoor Shah along with her daughter, Allah Ditta (her son) and Noubahar son of Falak Sher (her grandson) when Muhammad Ramzan appellant came there while armed with a .12 bore gun and raised a Lalkara to come out of the house. According to the complainant, Mst. Taleh Bibi went outside the house who was followed by the complainant and other P. Ws. When the appellant fired with his gun at Mst. Taleh Bibi which landed on the left side of her neck and chest, she fell down and breathed her last at the spot, upon which, the appellant decamped from the spot while brandishing gun in the air. The motive, stated in the F.I.R. Was that a quarrel between Ramzan appellant and Mst. Taleh Bibi deceased took place almost three days before the occurrence due to which he had done her to death.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the appellant as required under section 265-C of the Code of Criminal Procedure, charge was framed to which appellant pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution produced as many as 10 witnesses during the trial. The appellant was examined under section 342, Cr.P.C. He neither produced any evidence in defence nor opted to depose on Oath as required under section 340(2), Cr.P.C. However, the learned trial Court convicted and sentenced the appellant as detailed above. While making statement before the learned trial Court under section 342, Cr.P.C., in answer to question "why this case against you and why the P.Ws. Have deposed against you", the appellant stated as under:-- "Mst. Jantan Bibi complainant is the sister of my wife. She is of immoral character. Her daughters Mst. Mughlani and Mst. Taleh Bibi deceased were also of immoral character. I restrained them not to have immoral acts but they did not agree and they have a grudge against me. I have not committed murder of Mst. Taleh Bibi deceased nor I know who committed her murder. The P.Ws.
Have deposed against me due to grudge and in order to get my property since I am issueless".
5. Learned counsel for the appellant contends that the appellant has falsely been implicated in this case and the F.I.R. Was not registered in the manner as alleged by the prosecution as it was lodged after due deliberations, consultations and preliminary inquiry; that it was an unwitnessed occurrence and the appellant was implicated in the case because of his previous enmity; that there are material contradictions in the statement of the eye-witnesses who are closely related to the deceased, therefore, no reliance can be placed on their testimony; that the prosecution has failed to prove motive part of the prosecution case and that being a case of doubtful nature, the appellant is entitled to acquittal.
6. On the other hand, the learned Deputy 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, in order to prove its case, the natural eye-witness account has been furnished by the prosecution and despite cross-examination the defence could shake nothing from the testimony of the witnesses; 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. Occurrence in this case took place on 16-9-2004 at about 2:15 p.m., the matter was reported to the police by P.W.1 Mst. Jantan Bibi (complainant), real mother of deceased Taleh Bibi (deceased) at Rasheed Chowk at about 3:30 p.m., the formal F.I.R. Was registered on the same day at about 4:00 p.m. While the distance between the place of occurrence and the Police Station was about 2 1/2 kilometers. As the F.I.R. Was lodged within the span of 1 1/4 hours, therefore, it is a case of promptly lodged F.I.R.
9. The prosecution, to prove its case, has produced P.W.1 Mst. Jantan Bibi (complainant). Although she is closely related to the deceased i,e, mother yet she, has no enmity or strong motive to falsely implicate the appellant in this case. More so, it is rare phenomenon that a real mother of the deceased would substitute the real culprit with an innocent person. She has reasonably explained her presence at the place of occurrence and we see no reason not to accept her statement because according to her, on the fateful day and time, she was present in the house along with her real daughter Taleh Bibi deceased and when she went outside the house on the Lalkara of the appellant, the deceased was followed by her (Mst. Jantan Bibi) and other P.Ws. The occurrence took place near the house of the complainant, therefore, her witnessing the incident is quite natural. Notwithstanding the fact that she was subjected to cross-examination but the defence failed to shake anything from her testimony.
10. There is yet another eye-witness of the case, namely, P.W.2 Allah Ditta who appeared before the learned trial Court in support of the prosecution case. He also remained consistent on all material particulars of the case and the defence failed to shake anything from his testimony despite his cross-examination to which he was subjected during the trial. He corroborated the statement of the above, eye-witness on the main points. Although he is also real brother of the deceased yet he has no enmity with the appellant to falsely depose against him. He has also reasonably proved his presence at the spot to witness the occurrence. This Court seems his testimony to be worthy of credence. It is a broad-day-light occurrence, therefore, no question of false identity of the appellant arises when both the parties are well known to each other.
11. Apart from above, the ocular account in this case is supported by the medical evidence furnished by P.W.6 Lady Doctor Kausar Hussain. She conducted postmortem examination on the body of deceased on 16-9-2004 at about 8:00 p.m. And noted following injuries on her person:- "1. A firearm lacerated wound 6 cm x 2 cm on the left side of the place of neck. Corresponding cut was present on shirt.
2. A firearm lacerated grazing wound 10 cm x 5 cm on the front and upper part of left chest.
Corresponding cut was present on shirt, Cartridge and pellets removed and sealed in a bottle".
' According to the opinion of the doctor, the probable time between the receipt of injuries and death was immediate and between death and postmortem was within 8 to 12 hours which coincide with the time of occurrence. The allegation against the appellant was that he fired a shot with his .12 bore gun which hit the deceased on the left side of her neck and chest which injuries, we have noted, are present on the body of the deceased, meaning thereby that the ocular account in this case finds support from the medical evidence.
12. The motive alleged in the F.I.R. Was that a quarrel between Ramzan appellant and Mst. Taleh Bibi deceased took place almost three days before the occurrence due to which, according to the prosecution, the appellant killed the deceased. But we have noted that the prosecution has not produced any independent witness to prove the same. So far as recovery of gun (P.1) at the instance of the appellant and report of the Forensic Science Laboratory are concerned, they are of no avail to the prosecution because no crime empty was recovered from the spot to connect the gun with the commission of the offence. If both these pieces of evidence i,e, motive and recovery are excluded from the evidence, even then there is sufficient incriminating material on the record to conclude that it was the appellant who had done the deceased to death which is sufficient to maintain his conviction for the murder of Taleh Bibi deceased.
13. However, we have noted that there are certain extenuating circumstances which suggest that it is not a case of capital sentence, firstly, the appellant fired only one shot and did not repeat the same D although there was nothing to stop him from doing so, secondly, there was no deep rooted enmity between the parties and, thirdly, the prosecution evidence is not sufficient to prove motive part of the prosecution story. Apart from above, the question of discretion in awarding sentence to the accused in a case of "Qatl-e-amd" came up for consideration before the august Supreme Court of Pakistan in the case of Iftikharul Hassan v. Israr Bashir and another PLD 2007 SC 111 and we are of the affirmed view that it is a fit case in which such a discretion needs to be exercised. In the said judgment, at page 119 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. Respectively 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 SCMR 885; and Abdus Salam v. State 2000 SCM R 338".
14. In view of the above discussion while maintaining conviction of the appellant under section 302(b), P.P.C., the sentence of death of the appellant is converted into imprisonment for life. The amount of compensation as ordered by the learned trial Court and imprisonment in default thereof shall remain intact. Benefit of section 382-B, Cr.P. C. Shall be extended to the appellant. This appeal is partly allowed with the above modification in the quantum of sentence.
' Murder Reference is answered in the negative and sentence of death is not confirmed.