' SARDAR AHMED NAEEM, J.---Waris (appellant) and Zafar, Nasir alias Lachho, Hakim alias Hakoo, Nosher and Muhammad Yar, accused of case FIR No.842/2009, dated 04.11.2009, under sections 302/148/149 of the Pakistan Penal Code, 1860, registered at Police Station Bhowana, District Chiniot, at the instance of Mst. Fatima Bibi complainant (PW-3), were tried by the learned Addl. Sessions Judge, Chiniot, for committing intentional murder of Noor Muhammad. At the conclusion of the trial vide judgment dated 21.03.2011, accused Zafar, Nasir, Hakim, Nosher and Muhammad Yar were acquitted of the charge, whereas Waris appellant was convicted and sentenced as under:- "under section 302(b), P.P.C. To death as Tazir with a direction to pay Rs. 3,00,000/- to the legal heirs of deceased as compensation under section 544-A, Cr.P.C., and in default in payment of the amount of compensation, undergo Simple Imprisonment for six months"
2. Waris convict has lodged Crl. Appeal No.116-J/2011 from Jail against his conviction and sentence.
Mst. Fatima Bibi complainant has filed Criminal Appeal No.700 of 2011 against the acquittal of respondents No.1 to 5. Murder Reference No.222 of 2011 was also sent to us under section 374, Cr.P.C.
For confirmation, or otherwise, of death sentence of Waris. All the matters are being disposed of through this judgment.
3. Brief facts of the prosecution case, as disclosed in FIR Exh.PB/1 registered on the basis of statement/ complaint (Exh.PB) of Mst. Fatima Bibi complainant (PW-3), were that on 04.11.2009 at about, 8.00 A.M., the appellant armed with Kassi along with acquitted co-accused, some of them armed with their respective weapons and some empty-handed, committed murder of Noor Muhammad.
' Motive for the occurrence was the dispute of lease of the land of Auqaf Department between the deceased and Waris appellant.
4. Sarfraz Hussain Sub-Inspector (PW-9) after receiving information about the present incident on 04.11.2009 proceeded to the place of occurrence along with other constables and recorded the statement (Exh.PB) of Mst. Fatima Bibi complainant and sent the same to the police station for registration of formal FIR. Thereafter, he prepared the injury statement Exh.PE, inquest report Exh.PF of the deceased and sent the dead body to the mortuary through Sajid Ali Constable for postmortem examination. He collected the blood-stained earth from the place of occurrence, sealed it into parcel and secured vide memo Exh.PC. After postmortem examination Sajid Ali C/487 produced before him the last-worn clothe of the deceased i.e. Chadar (P.2) which he secured vide memo Exh.PH. He recorded the statements of the witnesses under section 161, Cr.P.C. And thereafter he was transferred on 13.11.2009.
' Muhammad Akram SI (PW-10) was entrusted the investigation of this case on 15.11.2009. On 8.12.2009 he arrested Waris appellant and acquitted accused Zafar. On 09.12.2009, Waris appellant during interrogation got recovered weapon of offence Kassi (P.1) from his house, which was secured vide memo Exh.PG. Thereafter, he got prepared the report under section 173, Cr.P.C.
5. Dr. Muhammad Rehmat Ullah, Medical Officer, RHC Bhowana (PW-5), on 4.11.2009 conducted postmortem examination On the dead body of Noor Muhammad and found five injuries on his person. In his opinion, death was caused due to haemorrhage and shock because of injury to vital organ, i.e. The brain, which was sufficient to cause death in ordinary course of nature. Injuries Nos.1 to 3 individually and collectively were sufficient to cause death. All the injuries were ante mortem.
Injuries Nos.1 to 4 were caused by sharp-edged weapon whereas injury No.5 was caused by blunt means. Injury No.4 was jurh ghayr jaifah Badiah and injury No.5 was jurh ghayr jaifah damiah.
Probable time between injury and death was immediate and between death and postmortem was about 4 to 12 hours. Exh.PD was the correct carbon copy of the postmortem report and Exh.PD/1 was pictorial diagram of the injuries. He also endorsed injury statement Exh.PE and inquest report Exh.
PF.
6. After submission of the challan, the learned trial court framed charge under sections 302/148/149, P.P.C. Against the appellant and acquitted accused on 24.02.2010, to which they pleaded not guilty and claimed trial.
7. In order to prove its case against the appellant and the acquitted accused, prosecution produced ten, witnesses in all. Haq Nawaz, Halqa Patwari (PW-1) prepared the scaled site plan of the place of occurrence Exh.PA and Exh.PA/1 on 09.11.2009 on the directions of the investigating officer and on the pointation of the PWs. Mst. Fatima Bibi (PW-3) was complainant of the case and eye-witness of the occurrence. Umar Hayat of tender-age (PW-4) also gave the eye-witness account of the occurrence. Dr. Muhammad Rehmat Ullah conducted postmortem examination on the dead body of Noor Muhammad deceased. Saif Ullah ASI (PW-6) drafted the formal FIR Exh.PB/ 1 on the basis of complaint Exh.PB. Imran Ali C/266 (PW-7) witnessed the recovery of weapon of offence Kassi (P.1) effected from the appellant. Sajid Ali C/487 (PW-8) escorted the dead body of Noor Muhammad to RHC Bhowana on 4.11.2010 for postmortem examination and also produced the last worn bloodstained chader (P.2) of the deceased before the investigating officer. Sarfraz Hussain SI (PW-9) and Muhammad Akram SI (PW-10) investigated the case. Learned DDPP gave up Mst. Jannat Bibi PW being unnecessary and after tendering in evidence report of the Chemical Examiner Exh.PJ and report of the Serologist Exh.PK closed the prosecution evidence.
8. At the close of the prosecution evidence, the appellant Waris was examined under section 342, Cr.P.C. In answer to question No.6 "Why this case against you and why the PWs have deposed against you", appellant Waris replied in the following manner:- "The PWs are related inter-se and also bore grudge against me. It was a blind murder and none of PW had seen it. I and other my brothers falsely roped in this case on the suspicion. The complainant party also nourished a grudge against me. My co-accused afar got registered a criminal case against Fatima Bibi PW, Noor Muhammad deceased and Mulazim etc. The agricultural land of Anjuman Hussainia owned by Sarfraz Mahdi and my brother namely Zafar accused had taken the land on lease. Noor Muhammad deceased had also earned enmity and having a dispute with Nasir son of Shahamand and said Noor Muhammad had initiated civil and criminal cases against many persons. Father-in-law of Noor Muhammad deceased booked an abduction case against him in connection of his daughter Mst. Jannat Bibi. The police reached at the spot after receiving the information of blind murder and escorted the dead body of Noor Muhammad deceased to mortuary. Later on police called Mst. Fatima for becoming the complainant of this case. Said Fatima involved me and other co-accused merely on suspicion."
' Out of the acquitted accused, three accused, namely, Hakim alias Hakoo, Nasir alias Lachoo and Zafar adopted the reply of their co-accused/Waris (appellant) offered to the question "Why this case against you and why the PWs have deposed against you".
' Remaining acquitted co-accused, namely Nosher and Muhammad Yar in answer to the same question "Why this case against you and why the PWs have deposed against you" replied as under: "I am innocent and falsely implicated in this case."
Neither the appellant nor any of the acquitted accused made statement on oath under section 340(2), Cr.P.C. Nor they opted to produce any defence evidence.
9. After arguing the case at some length, learned counsel for the appellant submits that mitigating circumstances are floating from the FIR and the statements of the witnesses. To augment his contention, learned counsel relied upon "Mst. Fazal Bibi v. Muhammad Rafiq and another" (1984 SCM R 1373) and "Muhammad lqbal v. The State" (1990 ALD 693(1)). He lastly submits that it is not a case of capital sentence.
10. Learned Deputy Prosecutor General assisted by learned counsel for the complainant opposed the submission with vehemence and submitted that the appellant along with his co-accused was nominated in promptly lodged FIR with specific role of causing fatal injuries to the deceased which finds support from the medical evidence available on record; that the witnesses have no grudge or grouse to falsely implicate the appellant; that the case of the prosecution was corroborated by medical and recovery effected from the appellant and that the normal penalty provided under section 302(b), P.P.C. For committing qatl-i-amd was death. The judgment of the trial court was balanced and not opened to exception, learned counsel further submitted.
11. We have heard the learned counsel for the parties at length and gone through the entire evidence minutely. As far as the implication of the appellant in this case is concerned, we have no doubt in our mind that it was the appellant who committed murder of the deceased. Learned counsel for the appellant has rightly submitted that mitigating circumstances are flowing from the first information report which was lodged with reasonable promptitude. The prosecution set up a motive but could not prove. We reproduce relevant part as mentioned in the FIR. {{URDU TEXT}}
12. The complainant in her statement have admitted that she had not provided any proof about litigation between Waris and Noor Muhammad regarding the motive of this case. She was unaware if she produced some witness in the evidence to prove motive. She also admitted that no quarrel took place 8/9 days prior to the occurrence between the accused and Noor Muhammad. Umar Hayat PW.4 also failed to provide deeper details regarding motive. Learned Deputy Prosecutor General could not persuade this Court that the motive was proved by the prosecution at trial. The Investigating Officer had also admitted this fact that the complainant did not produce any document regarding the motive of the occurrence, thus, motive as set up by the prosecution was not proved. All the accused were armed with Kassi's. The witnesses had seen the entire occurrence while standing at one place and in the same condition but none of them caused any injury either to the complainant or Umar Hayat despite the fact that they were at the mercy of the accused and this fact has been admitted by Umar Hayat in his statement. There appears no premeditation and pre-consultation. The co-accused of the appellant has been acquitted by the trial court on the same set of evidence. So it is a fit case which calls for interference by this Court only to the extent of sentence.
13. After having heard the learned counsel for the parties and taking into consideration submissions made by them respectively, having gone through the record with their able assistance and relying upon the judgments cited by the learned counsel for the appellant we are of the opinion that mitigating circumstances exists in favour of the appellant, so while maintaining conviction of the appellant under section 302(b), P.P.C. We convert his sentence to imprisonment for life. Benefit of section 382-B, Cr.P.C. Shall also be extended. Reliance in this respect can be placed on the cases of "Naveed alias Needu and others v. The State and others" (2014 SCM R 1464),"Magsood Khan v. The State and another" (2003 PCr.LJ 1165),"Saadullah Jan v. The State and another" (2002 PCr.LJ 1463),"Muhammad Ashraf v. Tahir alias Billoo and another" (2005 SCM R 383) and "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCM R 1142).
14. With the above modification in sentence Criminal Appeal No. 116-f of 2011 titled "Waris v. The State" filed by the appellant is hereby dismissed. Death sentence of appellant, namely, Waris is not confirmed and Murder Reference No.222 of 2011 titled "The State v. Waris" is answered in the NEGATIVE.
15. For the same reasons, Criminal Appeal No.700 of 2011 titled "Mst. Fatima Bibi v. Zafar, etc." filed by the complainant against acquittal of respondents Nos.1 to 5 is DISMISSED.