Shehram Sarwar Ch., J.--Ikram Ullah (appellant) was tried by learned Sessions Judge, Pakpattan in case FIR No. 443 dated 12.11.2014, offence under Section 302, PPC, registered at Police Station City Pakpattan District Pakpattan for the murder of Mst. Shazia Bibi (deceased) wife of complainant. Vide judgment dated 09.05.2017 passed by learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to death, with a further direction to pay Rs. 2,00,000/- (rupees two 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 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. 466 of 2017 for confirmation or otherwise of the appellant's sentence of death, as required under Section 374 of the Code of Criminal Proce dure, Since both these matters have arisen out of the same judgment, therefore, the same 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 of Muhammad Aslam, complainant (PW.1) is that on 12.11.2014, he along with his brother Muhammad Akram, Shan Ali Shahid was sitting in his room while Mst. Shazia Bibi wife of complainant was present in the baithak. At around 3.55 p.m. Ikram Ullah (appellant) armed with .30 bore pistol entered the baithak and raised lalkara to teach her a lesson for not taking divorce from her husband Muhammad Aslam. On hearing noise of Ikram Ullah (appellant), the complainant, his brother Muhammad Akram and Shan Ali came on the door of baithak and within their view, the appellant fired at Mst.
Shazia Bibi, which landed on her right temporal region and went through and through, who fell down and succumbed to the injuries. The complainant side tried to apprehend the appellant, who pointed his pistol towards them and asked not to come near and fled away . Motive behind the occurrence as alleged in the FIR was that Ikram Ullah (appellant) used to force Mst. Shazia to get divorce from the complainant and contract marriage with him but she did not agree..
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellant was summoned by learned Sessions Judge, Pakpattan 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 25.05.2016, to which he pleaded not guilty and claimed trial,.
Statement of the appellant under Section 342 of the Code of Criminal Procedure was recorded on 26.04.2017, wherein he refuted all the prosecution allegations levelled against him and profess ed his innocence. The appellant neither opted to appear as his own witne ss, in disproof of the allegations leveled against him, as provided under Section 340(2), Code of Criminal Procedure nor did he produce any defence evidence. However , after conclusion of trial, the learned trial Court convicted and sentenced the appellant, as detailed above. Hence this appeal and murder reference.
4. 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.
5. This unfortunate incident wherein Mst. Shazia Bibi (deceased) wife of complainant lost her life, as per prosecution, took place on 12.11.2014 at around 3.55 p.m. in the area of Mohallah Basharat situated within the territorial limits of Police Station City Pakpattan District Pakpattan. The distance between the place of occurrence and the police station is about one kilom eter. The matter was reported to the police through statement (Ex.P A) of Muhammad Aslam, complainant (PW.1) on the day at 4.40.p.m. i.e. just forty five minutes after the incident and formal FIR (Ex.P A/1) was got registered at 4.55 p.m. The postmortem examination of the dead body of deceased was also conducted on the same night at 9.00 p.m. Therefore, considering overall circumstances of the case, it can safely be concluded that the matter was reported to the police with promptitude.
6. The ocular account has been furnished by Muhammad Aslam complainant (PW.1) and Muhammad Akram (PW.2). Both the eye-witnesses have reasonably explained their presence on the spot at relevant time. The occurrence took place in the baithak of complainant, which has not been disputed by the defence. Both the eye- witnesses are residents of the same house where the occurrence took place. therefore, their presence on the spot at the time of incident is quite natural and probable. 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. Moreover , it is a case of, single accused and substitution in such like cases is a rare phenomenon. Though the eye-witnesses are closely related to the deceased being her husband (PW.1) and other-in-law (PW.2) but merely because of their close relationship with the deceased, their evidence cannot be discarded. Therefore, we hold that the witnesses of ocular account namely Muhammad Aslam, complainant (PW.1) and Muhammad Akram (PW .2) were present on the spot and had witnessed the occurrence.
7. The motive behind the occurrence as set out in the FIR and brought before the learned trial Court was to the effect that Ikram Ullah (appellant) used to force Mst. Shazia to get divorce from her husband (complainant) and contract marriage with him but she 'did not agree. During cross-examination, the complainant stated that the first marriage of Mst. Shazia Bibi had taken place with his elder brother Falak Sher and after his death, she contracted second marriage with him. However , the complainant conceded that there is no documentary evidence regarding motive part of the episode. Muhammad Akram (PW.2) also admitted during his cross-examination that they have no previous litigation with the appellant in civil, criminal or family Courts regarding divorce of Mst. Shazia Bibi etc. `We have also observed that no independent witness in respect of the motive was produced during the course of investigation or brought in the witness box during trial, Therefore, in our view, the prosecution has not been able to substantiate the alleged motive behind the occurrence.
8. In the FIR, it was case of the complainant that the appellant made a fire shot with pistol at Mst. Shazia Bibi (deceased), which landed on her right temporal region' and went through and through. Lady Dr. Sabira Sultana, who conducted postmortem examination of the dead body of deceased, appeared before the learned trial Court as PW-8 and furnished medical evidence. The postmortem examination report prepared by her showing the said injuries is available on record as Ex.PG & PG/1. Therefore, we hold that the ocular account in this case is fully supported by the medical evidence.
9. So far as alleged recovery of .30 bore pistol (P.1) at the instance of appellant, which was taken into possession vide recovery memo. Ex.PB, the same is immaterial because of the reason that the report of Punjab Forensic Science Agency (Ex.PM) is in the negative.
10. 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), 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.
11. From the above circumstances, we are of the considered view that even if the evidence of motive and the recovery of .30 bore pistol (P.1) at the instance of 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 Aslam, complainant (PW.1) and Muhammad Akram (PW.2), fully supported by the medical evidence i.e. statement of Lady Dr. Sabira Sultana (PW.8) 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) the motive set up by the prosecution has not been believed by us; (ii) the alleged recovery of .30 bore pistol (P.1) at the instance of the appellant has not been proved; and (iii) the appellant made only one fire shot at the deceased and there was no allegation of repetition of fire against him.
12. 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) and "Zafar Jqbal and others v . The State " (2014 SCMR 1227 ).
13. Therefore, while maintaining the conviction under Section 302(b), PPC, we alter the sentence of Ikram Ullah (appellant) from death to imprisonment for life. The amount of compensation and the punishment in default thereof, as ordered by the learned trial Court, are maintained. Benefit of Section 382-B, Code of Criminal Procedure is extended to him. The appeal in hand stands dismissed with the above modification in the quantum of sentence.
14. Murder Reference No. 466 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Ikram Ullah (convict) is NOT CONFIRMED .