Shehram Sarwar Ch., J.--Javed Iqbal (appellant) along with his co-accused namely Muhammad Yar, Aman Ullah and Tariq Mehmood was tried by the learned Sessions Judge, Chiniot in case FIR No. 102 dated 6.3.2015 offence under Sections 302, 148 and 149, PPC registered at Police Station Bhowana District Chiniot for the murder of Muhammad Aslam (deceased) brother of complainant. Vide judgment dated 19.1.2017 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. 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. Through the same judgment, Muhammad Yar, Aman Ullah and Tariq Mehmood, co-accused of the appellant were acquitted of the charges and Crl. Appeal No. 224 of 2017 filed by the complainant against their acquittal has been dismissed as withdrawn today vide separate order . Assailing the above conviction and senten ce, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 68 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.PB/1) registered on the statement (Ex.PB) of Muhammad Sarfraz, complainant (PW.8) is that on 06.03.2015 at around 4.30 p.m. he along with his brother Muhammad Aslam reached Adda Muhammadi Sharif to fetch grocery , where Muhammad Asif and Mazhar Hussain were already present.
Meanwhile, Javed Iqbal (appellant) armed with .30 bore pistol, Aman Ullah armed with .12 bore gun, Tariq armed with .30 bore pistol, Muhammad Yar and two unknown co-accused armed with fire-arms arrived there. Having arrived, Muhammad Yar raised lalkara that Muhammad Aslam should not go alive. Whereupon Tariq fired a shot which went amiss. Then Javed Iqbal (appellant) made a fire with pistol, which landed on forehead of Muhammad Aslam, who fell down. After departure of accused, the complainant party attended his brother but he succumbed to the injuries. Motive behind the occurrence as alleged in the FIR was that the accused side had a dispute of shamlat land with the complainant party and due to that revenge, they committed the murder of deceased.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. Javed Iqbal (appellant) and his co-accused Muhammad Yar, Aman Ullah and Tariq Mehmood were summoned by the learned Sessions Judge, Chiniot 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, 148 and 149, PPC was framed against them on 23.07.2015, to which they pleaded not guilty and claimed trial. After the closure of prosecution evidence, statements of the appellant and his co-accused under Section 342, Code of Criminal Procedure were recorded on 27.10.2016, wherein they refuted all the allegations of prosecution and professed their innocence. The appellant did not opt to appear as his own witness, in disproof of the allegations levelled against him, as provided under Section 340(2), Code of Criminal Procedure, however , he produced copies of FIRs (Ex.DA to Ex.DH) and demarcation proceedings (Mark-A) as defence evidence. After conclusion of 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. We have heard arguments of learned counsel for the parties as well as learned 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 Muhammad Aslam (deceased) brother of complainant lost his life, as per prosecution, took place on 06.03.2015 at about 4.30 p.m. in the area of Muham madi Sharif within the territorial limits of Police Station Bhowana District Chiniot. The distance between the place of occurrence and the police station is about eight kilometers. The matter was reported to the police through statement (Ex.PB) of Muhammad Sarfraz, complainant (PW.8) on the same day at 5.40 p.m. i.e. one hour and ten minutes after the occurrence and formal FIR (Ex.PB/1) was got registered at 6.05 p.m. The post-mortem examination of the dead body deceased was also conducted on the same night at 8.55 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 Muhammad Sarfraz, complainan t (PW.8) and Mazhar Hussain (PW.9). The occurrence took place in the area of Muhammadi Sharif, which has not been disputed by the defence.
Both the witnesses are residents of the same area and have reasonably explained their presence on the spot at relevant time, therefore, their presence on the spot at the time of incident 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 witnesses of ocular account are closely related to the deceased being his brother (PW.8) and maternal cousin (PW.9) but merely because of their close relationship with the deceased, their evidence cannot be discarded. The eye-witnesses have no deep-rooted 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 so far as injury on the person of deceased is concerned and substit ution in such like cases is a rare phenomenon. Therefore, we hold that the witnesses of ocular account namely Muhammad Sarfraz, complainant (PW.8) and Mazhar Hussain (PW .9) 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 the appellant side had dispute of shamlat land/property with the complainant party and due to that revenge, the appellant committed the murder of deceased. During cross-examination, the complainant has stated that Muhammad Abdullah son of Ahmad Yar had filed a civil suit against him (complainant), his deceased brother , father etc. and the appellant was co-sharer with said Abdullah. The complainant further referred a suit filed by his father , uncle and paternal aunt against Muhammad Abdullah etc. but no documentary proof with regard to the said suits was brought on record. The I.O. of the case namely Muhammad Sharif, S.I. (PW.10) also stated that there was previous conflict/litigation between the parties but documentary evidence was not produced in this regard, hence the same was not attached with the file. He further conceded that he did not collect any oral or documentary evidence in respect of motive part of the case. We have also observed that, no independent witness qua motive was produced during the course of investigation or brought 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.
8. In the FIR and before the learned trial Court, it was case of the prosecution that the appellant made a fire shot at Muhammad Aslam (deceased), which landed on his forehead. Dr. Zafar Abba s, who conducted post-mortem examination of the dead body of deceased, appeared before the learned trial Court as PW.6 and furnished the medical 'evidence. The post-mortem examination report showing the said injury is available on record as Ex.PD to Ex.PD/2. Therefore, we hold that the ocular account is fully supported by medical evidence.
9. So far as the alleged recovery of .30 bore pistol (P.1) at the instance of appellant which was taken into possession vide recovery memo. Ex.PC is concerned, the same is of no avail to the prosecution because of the simple 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 produced any independent witnessed in support of 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 sufficient reasons.
11. 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 appellant 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 Muhammad Sarfraz, complainant (PW.8) and Mazhar Hussain (PW.9), fully supported by the medical evidence i.e. statement of Dr. Zafar Abbas (PW.6) 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 reaso ns: (i) the motive set up by the prosecution has not been believed by us; (ii) the recovery of .30 bore pistol (P.1) at the instance of the appellant has not been proved; and (iii) the appellan t 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, 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 ).
13. Therefore, while maintaining the conviction under Section 302(b), PPC, we alter the sentence of Javed Iqbal (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, 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. 68 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Javed Iqbal (convict) is NOT CONFIRMED .