Shehram Sarwar Ch., J.--Irfan Zaman (appellant) was tried by the learned Addl. Sessions Judge, Lahore in case FIR No. 485 dated 16.07.2012 offence under Sections 302, 324 and 325 PPC (Section 13 of the Arms Ordinance, 1965 Oa of 1965) was added later on) registered at Police Station Township District Lahore for the murder of Rabia Naz (deceased) daughter of complainant and launching murderous assault on Arshad Iqbal (injured). Vide judgment dated 27.07.2017 passed by the learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentenced to death with a further direction to pay Rs. 3,00,000/- (rupees three 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. The appellant has also been convicted under Section 324, PPC and sentenced to four years rigorous imprisonment with fine of Rs. 10,000/- (rupees ten thousand only) and in default thereof, to further undergo simple impris onment for one month. The appellant has further been convicted under Section 325, PPC and sentenced to undergo six months simple imprisonment. All the sentences of appellant were ordered to run concurrently with benefit of Section 382-B, Cr.P.C. Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 472 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.
It is pertinent to mention here that earlier Irfan Zaman (appellant) was tried and convicted/sentenced by the learned trial Court under Section 302(b), PPC only vide judgment dated 01.02.2014 and the said judgment was silent about remaining charges. This Court vide judgment dated 04.05.2017 passed in Crl. Appeal No. 63-J of 2014 and Murder Reference No. 52 of 2014, set aside the judgment dated 01.02.2014 and remanded the matter to the learned trial Court for re-writing of judgment after affording oppOrtunity of hearing to the appellant and prosecution within a period of two months after receipt of that judgment.
2. Prosecution story , as set out in the FIR (Ex.P A/1) registered on the written application (Ex.P A) of Mst. Balqees Begum, complainant (PW.2) is that her daughter Rabia Naz aged about 30 years was serving as Trade & Finance Officer in Alfalah Bank, Akbar Chowk Branch. On 16.07.2012, daughter of complai nant was present in the bank on her duty. The complainant along with her son Jamil Ahmad and son-in-law {damad) went to Bank Alfalah to see her daughter in connection with some urgent work. At around 11.00 a.m. Irfan Zaman (appellant), who wanted to marry daughter of complainant forcibly , came in the bank and started firing at Rabia Naz; one fire hit on her right temporal region, two fires at right side of face and a fire landed on her right arm. She fell on the ground in injured condition and succumbed to the injuries. One fire of the appellant hit Arshad Iqbal, peon of bank near his right knee. After killing daughter of complainant, the appell ant attempted to commit suicide by making a fire on his head and he was shifted to hospital in injured condition. Motive behind the occurrence as alleged in the FIR was that Irfan Zaman (appellant) intended to marry Rabia Naz (deceased) forcibly , which was not acceptable to the complainant party .
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellant was summoned by the learned Addl. Sessions Judge, Lahore 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 Sections 302, 324 and 325, PPC read with Section 13 of the Arms Ordinance, 1965 (XX of 1965) was framed against him on 05.11.2012, 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 08.01.2014, wherein he refuted all the allegations of prosecution and professed his 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 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 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.
5. This unfortunate incident wherein Rabia Naz (deceased) daughter of compla inant lost her life, Arshad Iqbal (PW.1) sustained fire-arm injuries and the appellant attempted to commit suicide, as per prosecution, took place on 16.07.2012 at about 11.00 a.m. in Bank Alfalah situated in Akbar Chowk within the territorial limits of Police Station Township District Lahore. The distance between the place of occurrence and the police station is about three kilometers. The matter was reported to the police through written application (Ex.P A) of Mst. Balqees Begum, complainant (PW-2) on the same day at 11.35 a.m. i.e. just thirty five minutes after the occurrence and formal FIR (Ex.P A/1) was got registered at 11.55 a.m. The appellant and injured PW.2 were medically examined on the same day and the post-mortem examination of the dead body of deceased was also conducted on the same night at 9.30 p.m. Therefore, considering overall circumstances of the case, we are of the view that there was no delay in reporting the crime to the police.
6. The ocular account has been furnished by Arshad Iqbal, injured (PW.1), Mst. Balqees Begum, complainant (PW.2) and Nadeem Ahmad (PW.3). All the eye-witnesses have reasonably explained their presence on the spot at relevant time. The occurrence took place in Bank Alfalah, which has not been disputed by the defence. Arshad Iqbal (PW.1) was an employee of Bank Alfalah and his presence on the spot at the time of incident is quite natural and probable. Even he was an injured witness of the case and the medical officer (PW.8) did not state before the learned trial Court that the injuries were self suffered. Mst. Balqees Begum, complainant (PW.2) and Nadeem Ahmad (PW.3) have stated before the learned trial Court that they went to the bank to see Rabia Naz and a specific reason was explained by Nadeem Ahmad (PW.3) during his cross examination that they visited the bank for opening of account. Therefore, their presence in the bank of deceased daughter of complainant at the time of occurrence cannot be considered unnatural or improbable. 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. Though the compla inant (PW.2) and Nadeem Ahmad (PW.3) are closely related to the deceased being her mother and brother-in-law but Arshad Iqbal, injured (PW.1) is an independent witness having no personal relations with them. 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. Therefore, we hold that the witnesses of ocular account namely Arshad Iqbal, injured (PW.1), Mst. Balqees Beg-um, complainant (PW.2) and Nadeem Ahmad (PW.3) were present on the spot and had witnessed the occurrence.
7. The motive behind the occurrence as alleged in the FIR and stated before the learned trial Court was to the effect that Irfan Zaman (appellant) wanted to marry Rabia Naz (deceased) forcibly , which was not accepted by the complainant party . During cross examination, the stance of complainant was altoge ther different, who admitted that on 07.04.2012, a nikah between her daughter (deceased) and the' appellant was performed and volunteered that rukhsati was not taken place. The complainant further stated during her cross examination as under: "... We did not fix any date for the -Rukh sati of Rabya Naz as we were inquiring about the accused, who posed himself as employee of ISI as Major . When Nikah was performed by my daughter with the accused we did not inquire regarding the background of the accused. The accused was not invited at our home after performing the Nikah with my daughter nor he was invited by any member of our family ..."
We have further observed that no independent witness qua motive was produced during the course of investigation or in the witness box at the time of trial. Therefore, in our view, the prosecution has not been able to substantiate the alleged motive behind the occurrence . The prosecution's failure to prove motive would constitute a mitigating circumstance for reducing the sentence from death to imprisonment for life. Reliance is placed on the case of "Naveed alias Needu & others vs. The State & others" (2014 SCMR 1464 ), relevant portion whereof is reproduced below: "Upon our own assessment of the evidence available on the record we have felt no hesitation in concluding that the specific motive set up by the prosecu tion had indeed remained far from being established on the record. The law recently declared by this Court in the case of Ahmed Nawaz and another v. The State (2011 SCMR 593), Iftikhar Mehmood and another vs. Qais er Iftikhar and others (2011 SCMR 1165) and Muhammad Mumtaz and another vs. The State and another (2012 SCMR 267) reiterates the settled and longstanding principle that failure of the prosecution to prove the motive set up by it may have a bearing upon the question of sentence and in an appropriate case such failure may result in reduction of a sentence of death to that of imprisonment for life for safe administration of justice."
The same view was further fortified in the case titled as "Ahmad vs. the State " (2015 SCMR 993 ).
8. In the FIR and before the learned trial Court, it was case of the prosecution that the appellant fired with pistol at Rabia Naz (deceased) which landed on her temporal region, face and right arm. One fire of the appellant hit Arshad Iqbal, injured (PW.1) on his right knee. Thereafter , the appellant attempted to commit suicide. Dr. Arooj Ahmad and Dr. Zahid Manzoor , who conducted post-mortem examination of the dead body of deceased and medically examined injured PW. 1 and the appellant, appeared before the learned trial Court as PW.7 & 8 and furnished the medical evidence. The post-mortem examination report and the MLCs are available on record as Ex.PF to PF/2, Ex.PK and Ex.PL. Therefore, we hold that the ocular account is fully supported by medical evidence.
9. So far as the alleged recovery of .30 bore pistol which was taken into possession vide recovery memo. Ex.PD is concerned, after the occurrence, Ulfat Ali, S.I/I.O. (PW.13) inspected the place of incident, took six crime empties into possession vide recovery memo. Ex.PE and weapon of offence pistol .30 bore (P.6) from the spot vide recovery memo. Ex.PD. The crime empties and pistol were received in the office of Punjab Forensic Science Agency on 07.08.2012 and 09.08.2012, respectively and the report of said Agency (Ex.PQ) is in the positive.
Hence, the prosecution case is corroborated by the recovery of pistol.
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 he produced 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 is excluded from consideration there is sufficient incriminating evidence on the record against him in the form of straightforward and confidence inspiring ocular account furnished by Arshad Iqbal, injured (PW.1), Mst. Balqees Begum, complainant (PW.2) and Nadeem Ahmad (PW.3), fully supported by the medical evidence i.e. statements of Dr. Arooj Ahmad (PW.7) and Dr. Zahid Manzoor (PW.8) and corroborated by the recovery of pistol (P.6) to maintain his conviction under Section 302(b), 324 and 325, PPC, which is accordingly maintain ed. However , it is not a case of capital punishment because of the reason that the motive set up by the prosecution has not been believed by us.
12. All the above facts of the case lead us to the conclusion that there is extenuating circumstance, on the basis of which Irfan Zaman (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 1 188) and " Zafar Iqbal and others v . The State " (2014 SCMR 1227 ).
13. Therefore, while maintaining the conviction under Section 302(b), PPC, we alter the sentence of Irfan Zaman (appellant) from death to imprisonment for life. The amount of compensation and the punishment in default whereof, as ordered by the learned trial Court, are maintained. The conic ion/sentence of the appellant under Section 324 and 325, PPC are also maintained. All the sentences of the appellant shall run concurrently . Benefit of Section 382-B, Cr.P.C. is extended to the appellant. The appeal in hand stands dismissed with the above modification in the quantum of sentence.
14. Murder Reference No. 472 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Irfan Zaman (convict) is NOT CONFIRMED.