Shehram Sarwar Ch., J.--Javed alias Jaidee (appellant) along with his co-accused namely Ishrat Bibi, Parvez alias Sheedu, Shahid alias Jaggi and Muhammad Imran was tried by the learned Addl. Sessions Judge, Gujranwala in case FIR No. 683 dated 18.06.2015, offence under Sections 302, 109, 148 and 149, PPC, registered at Police Station Aroop District Gujranwa la for the murder of Muhammad Irfan (deceased) brother of complainant.
Vide judgment dated 28.02.2017 passed by the learned Addl. Sessions Judge, Gujranw ala, 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 the deceased and in default whereof to further undergo simple imprisonment for four months. Through the same judgment, Ishrat Bibi, Parvez alias Sheedu, Shahid alias Jaggi and Muhammad Imran, co-accused of the appellant were acquitted of the charge and no appeal against their acquittal was filed either by the State or the compla inant, as conceded by learned Deputy Prosecutor General. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 162 of 2017 for confirmation or otherwise of the appellant's sentence of death, as required under Section 374 of the 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 written application (Ex.P A) of Muhammad Imran, complainant (PW.1) is that on 16.08.2015, he went to City Gujranwala in connection with labour and at around 5.00 p.m. his wife Mst. Shakeela Bibi informed him through telephone that Muhammad Javed (appellant), Muhammad Parvez alias Sheedu and Ishrat Bibi are quarrelling with Muhammad Irfan brother of complainant. On that information, the complainant along with his paternal uncles Babar Ali and Ijaz Aid reached his house and saw that the accused are quarrelling with Muhammad Irfan. Meanwhile, Mst. Amra Bibi sister of complainant arrived there, who also started hurling abuses to the complainant's side and his brother Muhammad Irfan. In the meantime, Pervez alias Sheedu, Ishrat Bibi and Amra Bibi caught hold of Muhammad Irfan and laid him down. Muhammad Javed (appellant) took out his pistol .30 bore and while sitting on the chest of Muhammad Irfan fired at him, which landed on left side of his chest, who sustained grievous injuries and died on the spot. Motive behind the occurrence as alleged in the FIR was that a few days earlier , a domestic quarrel had happened and due to that grudge, the accused committed the murder of Muhammad Irfan (deceased) brother of complainant in consultation with Shahid and Muhammad Imran.
3. During investigation, Mst. Amra Bibi, co-accused of the appellant became fugitive from law and she was declared proclaimed offender . After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Javed alias Jaidee (appellant) along with Ishrat Bibi, Parvez alias Sheedu, Shahid alias Jaggi and Muhammad Imran, co-accus ed was summoned by the learned Addl. Sessions Judge, Gujranwala to face the trial. Copies of relevant documents were provided to them, as required under Section 265- C, Code of Criminal Procedure and formal charge under Sections 302, 109, 148 and 149, PPC was framed against them on 05.12.2016, to which they pleaded not guilty and claimed trial. Statements of the appellant and his co- accused under Section 342 of the Code of Criminal Procedure were recorded on 25.02.2017, wherein they refuted all the prosecution allegations levelled against them and professed their innocence . The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure nor did he produce any defence evidence. However , after conclusion of the trial, the learned trial Court convicted and sentenc ed the appellant and acquitted his co-accused, as detailed above. Hence this appeal and murder reference.
4. Learned counsel for the appellant, in support of this appeal contends that the matter was reported to the police with due deliberation and consultation; that the appellant has falsely been implicated in this case; that the story of prosecution is highly improbable and presence of witnesses of ocular accou nt namely Muhammad Imran, complainant (PW.1) and Ijaz Ali (PW.2) 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 .30 bore pistol (P.1) at the instance of the appellant is inconsequential as the same was got recovered from an open place, accessible to everyone; that the version of the appellant is more probable, 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 vehemently opposes this appeal on the grounds that the matter was reported to the police with promptitude; that Muhammad Imran, complainant (PW.1) and Ijaz Ali (PW.2) have no enmity with the appellant to falsely implicate him in this case; that eye-witnesses 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 .30 bore pistol (P.1) at the instance of the appellant and positive 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 appellant as well as learne d 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 Muhammad Irfan (deceased) brother of complainant lost his life, as per prosecution, took place on 16.8.2015 at around 5.00 p.m. in Safdar Colony in the area of Kot, Ishaq situated within the territorial limits of Police Station Aroop District Gujranwala. The distance between the place of occurrence and the police station is about nine kilometers. The matter was reported to the police through written application of Muhammad Imran, complainant (PW.1) on the same day at 5.30 p.m. i.e. just thirty minutes after the incident and formal FIR (Ex.P A/1) was got registered at 5.55 p.m. The post-mortem examinatio n of the dead body of deceased was conducted on the next morning i.e. 17.08.2015 at 5.15 a.m. Therefore, considering overall circumstances of the case, it can safely be concluded that the matter was reported to the police with promptitude.
8. The ocular account has been furnished by Muhammad Imran, complainant (PW.1) and Ijaz Ali (PW.2). Both the eye-witnesses have reasonably explained their presence on the spot at relevant time. The occurrence took place in the house of complainant, which has not been dispute by the defence. Therefore, presence of the complainant in his own house at the time of incident is quite natural and probable. Ijaz Ali (PW.2) was also resident of the same area, who was paternal uncle of the deceased and his presence in the house of his paternal nephew at relevant time cannot be considered unnatural or improbable. Though the witnesses of ocular account are closely related to the deceased being his brother (PW.1) and paternal uncle (PW.2) but merely because of their close relationship with the deceased, their evidence cannot be discarded. The eye-witnesses 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. It is a case of single accused so far as injuries on the person of the deceased are concerned and substitution in such like cases is a rare phenomenon. Therefore, we hold that the witnesses of ocular account namely Muhammad Imran, complainant (PW.1) and Ijaz Ali (PW.2) were present on the spot and had witnessed the occurrence.
9. The motive as set out in the FIR and brought before the learned trial Court was a previous domestic quarrel, due to which, the appellant committed the murder of Muhammad Irfan (deceased). No detail of domestic quarrel was brought on record by the prosecution and it was simply stated by the complainant during cross-examination that the same was relating to money and that the domestic affair was not chronic. We have observed that no independent witness in support I of alleged motive was produced during investigation or before the 'learned trial Court at trial. It was also stated by Badar Munir , S.I/IO. (PW.13) during cross-examination that no person except the alleged P.Ws was produced before him regarding the motive of the occurrence. Considering the above, we are of the view that the prosecution has not been able to substantiate the motive part of the occurrence.
10. In the FIR as well as before the learned trial Court it was the case of prosecution that Javed alias Jaidee (appellant) fired with pistol at Muhammad Irfan (deceased), which landed on left side of his chest. Dr. Muhammad Waqar-ul-Hasnain Niaz appeared before the learned trial Court as PW.3 and furnished the medical evidence. The post-mortem examination report, showing the injury on left side of chest along with exit wound on backside of the deceased, is available C on record as Ex.PC to PC/2. Therefore, the ocular account in this case is fully supported by medical evidence.
11. So far as the recovery of .30 bore pistol (P.1) at the instance of appellant which was taken into possession vide recovery memo. (Ex.PE) is concerned, the same is immaterial because of the reason that the pistol was got recovered from the bank of Sam Nala in the area of Dera Baathan, which is an open place and accessible to everyone.
12. Now we take up the version of the appellant disclosed by him in his statement recorded under Section 342, Code of Criminal Procedure. The appe llant neither opted to appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2) of the Code of Criminal Procedure nor did he produce any 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 .30 bore pistol (P.1) at the instance of the appellant is excluded from consideration, there is sufficient incriminating evidence on the record against the appellant in the form, of straightforward and confidence inspiring ocular account furnished by Muhammad Imran, complainant (PW.1) and Ijaz Ali (PW.2), fully supported by the medical evidence i.e. statement of Dr. Muhammad Waqar-ul-Hasnain Niaz (PW.3) to maintain his conviction under Section 302(b), PPC, which is accordingl y maintained. However , it is not a case of capital punishment because of the reasons: (i) the motive set up by the prosecution has not been believed by us; and (ii) the alleged recovery of 30 bore pistol (P .1) at the instance of the appellant has not been proved.
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, reliance may be placed on the case law reported as "Mir Muhammad alias Miro vs. The State" (2009 SCMR 1188) and " Zafar Iqbal and others v . The State" (2014 SCMR 1227 ).
15. Therefore, while maintaining the conviction under Section 302(b), PPC, we alter the sentence of Javed alias Jaidee (appellant) from death to imprisonment for life. The amount of compensation, as ordered by the learned trial Court is maintained, however , in case of non-payment of compensation amount, the appellant shall undergo simple imprisonment for six months instead of four months. 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. It is clarified that the observations made in this judgment are relevant only for the disposal of this appeal, which shall not prejudice the case of Mst. Amra Bibi, co-accused of the appellant, still absconding.
16. Murder Reference No. 162 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Javed alias Jaidee (convict) is NOT CONFIRMED .