Shehram Sarwar Ch. J.--Shikra (appellant) was tried by the learned Addl. Sessions Judge, Okara in case FIR No.97 dated 01.05.2012, offence under Section 302 PPC registered at Police Station Satgarha District Okara for the murder of Haji Sakhi, Muhammad (deceased) brother of complainant. Vide judgment dated 05.05.2016, passed by the learned Addl. Sessions Judge, Okara, the appellant has been convicted under Section 302(b) PPC and sentenced to death, with a further direction to pay Rs. 1,00,000/- (rupees one lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased and in default whereof to further undergo rigorous imprisonment for six months. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No.307 of 2016 for confirmation or otherwise of the appellant's sentence of death, as required under Section 374, Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment.
2. Prosecution story , as set out in the FIR (Ex.P A/1) registered on the statement (Ex.P A) of Wali Muhammad, complainant (PW.1) is that he was a cultivator and his brother namely Haji Sakhi Muhammad aged about 60/65 years had cattle heads, who was also an agriculturist. About four months ago, Haji Sakhi Muhammad had borrowed an amount of Rs. 1,00,000/- for marriage of his son Ghulam Ali from his brother-in-law (said) namely Shakir alias Shikra (appellant). The marriage was yet to be held but Shikra started demanding return of Rs.
1,00,000/- and Haji Sakhi Muhammad told him that he will return the amount after harvesting wheat crop. On 01.05.2012, the complainant along with Haji Sakhi Muhammad, Ghulam Ali, Yar Muhammad and Khadim Hussain was present in the ihata /cattle shed of Sakhi Muhammad where Shakir alias Shikra (appellant) came and demanded the return of amount from Sakhi. Muhammad otherwise threatened to take away his buffalo. Sakhi Muhammad sought some days for payme nt and did not allow the appellant to take his buffalo. Shikra went away towards his house while extending threats. After some time at around 5.45 p.m. the appellant came there duly armed with 8-MM rifle and raised lalkara to teach him (Sakhi Muhammad) a lesson for not returning him amount.
The complainant party tried to stop him and Sakhi Muhammad, ran from his cattle shed to take refuge in the house of Muhammad Hussain and when he reached at the outer door of said house, Shikra fired with 8-MM rifle with intent to kill Sakhi Muhammad which landed on his head, who fell inside of the outer door of house and succumbed to the injury on the spot. Besides the complainant, the occurrence was witnessed by Ghulam Ali, Yar Muhammad and Khadim Hussain.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Shikra (appellant) was summoned by the learned Addl. Sessions Judge, Okara to face the trial. Copies of relevant documents were provided to him, as required under Section 265-C, Code of Criminal Procedure and formal charge under . Section 302 PPC was framed against him on 17.01.2013, to which he pleaded not guilty and claimed trial. After the closure of prosecution evidence, statement of the appellant under Section 342, Code of Criminal Procedure was recorded on 20.04.2016, wherein he refuted all the allegations of prosecution and professed his innocence. In answer to a question as to why this case against him and why the prosecution witnesses had deposed against him, the appellant stated as under:-- "I am innocent and I have been falsely entangled in the present case due to the previous enmity . Sakhi Mohammad deceased had illicit relations with the wife of one Mohammad Hussain and on the day of occurrence Mohammad Hussain aforementioned had seen Sakhi Mohammad deceased in a comprom ising position with the wife of Mohammad Hussain above mentioned who murdered Sakhi Mohammad deceased in provocation on the day of occurrence at the time of occurrence. Complainant Wali Mohammad has a history of previous enmity with my relatives and Wali Mohammad involved me in the present case due to the aforementioned previous enmity .
Furthermore, the ihata/dhari where Sakhi Mohammad deceased had allegedly kept the cattle heads were not owned by Sakhi Muhammad deceased rather Dhari/lhata of Sakhi Muhammad deceased was factually situated at a distance of 1 acres from the place of occurrence where he kept his cattle heads, therefore, complainant narrated the false story in this regard."
The appellant did not opt to appear as his own witness, in disproof of the alleg ations levelled against him, as provided under Section 340(2), Code of Criminal Procedure, however , he tendered attested copy of fard malkiat (Ex.DC) as defence evidence. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant, as detailed above. Hence this appeal and murder reference.
4. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that the matter was reported to the police after deliberation and consultation; that the story of prosecution is highly improbable and presence of witnesses of ocular account namely Wali Muhammad, complainant (PW.1), Ghulam Ali (PW.2) and Khadim Hussain (PW.3) at the place of occurrence at relevant time is of doubtful nature; that a vague motive has been set out in the FIR as well as brought before the learned trial Court, which has not been proved by the prosecution; that the ocular account is not in line with the medical evidence; that the alleged recovery of 8-MM rifle (P.4) at the instance of the appellant is inconse quential as the report of Punjab Forensic Science Agency (Ex.PP) is simply to the effect that the rifle was in mechanical operating condition; that the version of the appellant is more proba ble, convincing and even gets full support from prosecution's own case; that viewing from all angles, the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant, vehemently opposes this appeal on the grounds that the matter was reported to the police with due promptitude; that Wali Muhammad, complainant (PW.1), Ghulam Ali (PW.2) and Khadim Hussain (PW.3) have no enmity with the appellant to falsely implicate him in this case; that the eyewitnesses have reasonably explained their presence on the spot at relevant time which is quite natural and probable ; that the prosecution has also proved motive part of the occurrence; that the medical evidence is in line with the ocular account; that the prosecution has proved its case to the hilt against the appellant, which is further corroborated by the recovery of 8- MM rifle (P.4) at the instance of the appellant and the report of Punjab Forensic Science Agency (Ex.PP); that the version of the appellant is nothing but an afterthought, therefore, the appeal filed by the appellant merits dismissal.
6. We have heard arguments of learned counsel for the parties as well as learned Deputy Prosecutor General for the State to their entire satisfaction, given our serious consideration to their respective submissions and also perused the record.
7. This unfortunate incident wherein Haji Sakhi Muhammad (deceased) brother of complainant lost his life, as per prosecution, took place on 01.05.2012 at about 5.45 p.m. in the area of Chak No.17/GD situated within the territorial limits of Police Station Satgarha District Okara. The distance between the place of occurrence and the police station is about seventeen kilometers. The matter was reported to the police through statement (Ex.P A) of Wali Muhammad, complainant (PW.1) on the same evening at 7.00 p.m. i.e. one hour and fifteen minutes after the occurrence and formal FIR (Ex.P A/1) was got registered at 7.30 p.m. Postmortem examination of the dead body of deceased was conducted on the same night i.e. 02.05.2012 at 1.30 a.m. Therefore, considering overall circumstances of the case such as time and place of occurrence, its distance from the police station and social status of the parties, it can safely be concluded that there was no conscious or deliberate delay in reporting the crime to the police.
8. The ocular account has been furnished by Wali Muhammad, complainant (PW.1), Ghulam Ali (PW.2) and Khadim Hussain (PW.3). All the eyewitnesses have reasonably explained their presence on the spot at relevant time by stating that they along with Yar Muhammad (given up PW) and Haji Sakhi Muhammad (deceased) were - present at the Battle shed of the deceased where the appellant arrived and committed the incident. The occurrence took place in front of the cattle shed of deceased, which has not been disputed by the defence. The witnesses of ocular account (PW.1 to 3) are residents of the same area, therefore, their presen ce on the spot at relevant time cannot be considered unnatural or improbable. Though the eyewitnesses are closely related to each other and to the deceased as the complainant (PW.1) is brother , Ghulam Ali (PW.2) is son and Khadim Hussain (PW.3) is khalazad of the deceased but merely because of their close inter-se relationship or with the deceased, their evidence cannot be discarded. In the FIR and before the learned trial Court, it was case of the prosecution that the appellant was the sole perpetrator of crime. The eyewitnesses were subjected to lengthy cross examination but they remained consistent on material aspects of the case and nothing favourable to the defence could be extracted. The witnesses of ocular account have no enmity with the appellant to falsely implicate him in this case by letting off the real culprits. Even otherw ise, substitution in such like cases is a rare phenomenon. Therefore, we hold that the witnesses of ocular account namely Wali Muhammad, complainant (PW.1), Ghulam Ali (PW.2) and Khadim Hussain (PW .3) were present on the spot and had witnessed the occurrence.
9. Motive behind the occurrence as set out in the FIR and brought before the learned trial Court was to the effect that about four months ago, Haji Sakhi Muhammad (deceased) had borrowed an amount of Rs. 1,00,000/- for marriage of his son Ghulam Ali (PW.2) from his brother-in-law Shakir alias Shikra (appellant). The marriage was yet to be held but the appellant started demanding return of the amount, whereupon the deceased told that he will return the same after harvesting wheat crop and on the day of occurrence, the appellant again demanded the amount, resultantly the incident had happ ened, No exact date, time and in whose presence the amount was taken by the deceased from the appellant was brought on record. Even no independent witness in support of the motive was produced during the course of trial or brought in the witness box during trial. In this view of the matter , we hold that the prosecution has not been able to substantiate the motive part of the occurrence.
10. In the FIR as well as before the learn ed trial Court it was case of the prosecution that Shikra (appellant) fired with 8-MM rifle at Haji Sakhi Muhammad (deceased) which landed on his head. Dr. Ozair Tahir who conducted postmortem examination of the dead body of deceased appeared before the learned trial Court as PW.7 and furnished medical examination. Postmor tem examination report prepared by the medical officer is available on record as Ex.PE and PE/1. Therefore, in our view, the ocular account in this case is fully supported by medical evidence.
11. So far as the recovery of 8-MM rifle (P.4) at the instance of appellant which was taken into possession vide recovery memo (Ex.PM) is concerned, the same is inconsequential because of the reason that the report of Punjab Forensic Science Agency (Ex.PP) is simply to the ef fect that the rifle was in mechanical operating condition.
12. Now we take up the version of the appellant disclosed by him in his statement recorded under Section 342, Code of Criminal Procedure, reproduced in para 3 above. The appellant did not opt to appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2), Code of Criminal Procedure. The appellant has also not produced any witness in support of his defence evidence. Considering the above circumstances, it is concluded that the appellant has failed to prove his version and learned trial Court has rightly discarded the same with suf ficient reasons.
13. From the above circumstances, we are of the considered view that even if the evidence of motive and recovery of 8-MM rifle (P.4) at the instance of the appellant is excluded from consideration , there is sufficient incriminating evidence on record against him in the form of straightforward and confidence inspiring ocular account furnished by Wali Muhammad, complainant (PW.1), Ghulam Ali (PW.2) and Khadim Hussain (PW.3) fully supported by medical evidence i.e. statement of Dr. Ozair Tahir (PW.7) and postmortem examination report (Ex.PE & PE/1) to maintain his conviction under Section 302(b) PPC, which is accordingly maintained. However , it is not a case of capital punishment because of the reasons: (i) motive set up by the prosecution has not been believed by us; (ii) the alleged recovery of 8-MM rifle (PA) at the instance of the appellant has not been proved; and (iii) the appellant caused only one firearm injury on the person of the deceased and there is no allegation of repetition of fire against the appellant.
14. All the above facts of the case lead us to the conclusion that there are extenuating circumstances, on the basis of which the appellant could not be made liable to the maximum punishment provided under Section 302(b) PPC, rather the ends of justice would be met, if his death sentence is converted into imprisonment for life. In this regard, we respectfully refer the case titled as "Mir Muhammad alias Miro vs. The State" (2009 SCMR 1188) wherein the Hon'ble Supreme Court of Pakistan has held as under:-- "9. It will not be out of place to emphasi ze that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people.
Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
Further reliance is placed on the case reported as "Zafar Iqbal and others v. The State" (2014 SCMR 1227 ), in which the Hon'ble Supreme Court of Pakistan has observed at pages 1235 and 1238 as under:-- "15. The question of awarding of sentence is required by law to be adverted to in every criminal case and it is the duty of the Court to always consider this aspect of the matter while awarding sentence. In the present case trial Court has awarded death sentence to the appellants, which has been maintained by the High Court and the murder reference has been answered in positive . On examination of the record certain facts have come to light, which needs to be given serious consideration and they probably have in them material on the basis of which the case of mitigation in sentences could be found. Although in the ocular account it is alleged that appellant Iftikhar has fired with a rifle at Jaffar Hussain deceased on his head and he has also fired at Abdaal Hussain deceased on the left side of his chest but the prosecution has not been able to secure or recover any firearm from this appellant. At the same time appellant Asghar Iqbal is alleged to have fired with his rifle at Abdaal Hussain deceased on his left ear with his rifle. Although .7 mm rifle was recovered on the pointation of this appellant but no recovery of empty of this rifle was made from the place of incident and there is no report of Forensic Science Laboratory (FSL) of connecting the recovered .7 mm rifle with the two crime empties recovered from the .place of incident. It is also noted that the real motive as propounded in the prosecution version was against deceased Jaffar Hussain in that he was the one, who has beaten appellant Iftikhar . The motive being against deceased Jaffar Hussain, it is not understandable as to why the appellants after having murdered Jaffar Hussain will proceed covering distance and murder Jaffar Hussain's two sons, namely , Abdaal Hussain and Abrar Hussain. This will go to show that something very obnoxious may have happened at the place of occurrence of which neither the prosecution has given any evidence nor the same has come out from the side of defence. Thus the immediate circumstance or cause for the happening of the events, which culminated into the murder of three persons namely , Jaffar Hussain, Abdaal Hussain and Abrar Hussain are altogether shrouded in mystery ."
"20. All the above factors in the light of the law laid down by this Court as discussed above lead us to the conclusion that there are sufficient extenuating circumstances, on the basis of which the appellants could not be made liable to the maximum Punishment provided under Section 302(b) PPC, rather the ends of justice would be met, if their death sentence is converted into imprisonment for life. While maintaining the 'conviction of the appellants and modifying the sentence from death to life imprisonment and maintaining other sentences with benefit of Section 382-B, Cr .P.C, this appeal is partially allowed in the above terms."
Therefore, while maintaining the conviction under Section 302(b) PPC, we alter the sentence of Shikra (appellant) from death to imprisonment for life. The amount of compensation as imposed by the learned trial Court is maintained, however , in case of non-paym ent of compensation amount, the appella nt shall have to undergo simple imprisonment for six months instead of rigorous imprisonment. Benefit of Section 382-B, Code of Criminal Procedure is extended to the appellant. The appeal in hand stands dismissed with the above modification in the quantum of sentence.
15. Murder Reference No.307 of 2016 is answered in the NEGA TIVE and the sentence of death awarded to Shikra (convict) is NOT CONFIRMED .