Raja Shahid Mehmood Abbasi, J.--Through this single judgment, we intend to decide Criminal Appeal No. 57658- J of 2017 filed by Maqbool Ahmad appellant against his conviction and sentence along with reference under Section 374, Cr.P.C. sent by learned trial Court for confirmation or otherwise of the sentence of death of the appellant, numbered as MUrder Reference No. 199 of 2017, as both these matters have originated from the judgment dated 22.03.2017, handed down by learned Additional Sessions Judge, Sargodha, in case FIR No. 249 dated 21.08.2013, registered under Sections 302, 109, PPC, at Police Station Atta Shaheed, Sargodha, whereby the appellant was convicted under Section 302(b), PPC and sentenced to death with the direction to pay an amount of Rs.2,00,000/- as compensation to the legal heirs of Ansar Ali deceased, in default thereof to undergo six months S.I.
2. The prosecution story set forth in FIR (Ex.PB) by Muhammad Akram complainant, a resident of Chak No. 103 Janoobi Sargodha and labourer by profession, is that his son Ansar Ali along with his wife and children was residing in the house of his in-laws situated at Chak No. 107 Janoobi for the last one month. He along with his brother-in-law Muhammad Ashraf went to the house of his son's father-in-law Muhammad Arif as guests and remained there for the whole night. On 21.08.2013 at about 05:45 a.m. he (complainant) and Muhammad Ashraf were standing in the street in front of the house Muhammad Arif and engaged in conversation, when his son Ansar Ali, boarded on 'a motorcycle, proceeded to his workplace towards Pull 111, but was taken to surprise by Maqbool Ahmad, equipped with pistol .30 bore, who made a fire shot targeting back of Ansar Ali, who, after receiving the injury speed-up his motorcycle to save his life, but fell down near Hussainia Chowk in a watercourse after covering some distance and when attended by the PWs, was found dead. Maqbool Hussain had committed murder of Ansar Ali on the instigation of his brother Maqsood Ahmad due to the dispute of "Rishta", hence, the crime report.
3. Alter completion of investigation, report under Section 173, Cr.P.C. was prepared and submitted before the Court.
4. Upon indictment, Maqbool Ahmad appellant and his co-accused Maqsood Ahmad pleaded not guilty and claimed trial,' but afterwards co-accused Maqsood Ahmad absconded himself and was declared proclaimed offender on 12.04.2016.
5. In order to prove its case, the prosecution examined as many as eleven witness es before the learned trial Court.
Muhammad Akram complainant (PW4), Muhammad Arif (PW5) and Muhammad Ashraf (PW6) furnished eye- witness account. Muhammad Afzal (PW9) testified about the recovery of pistol .30 bore on the pointing out of the appellant. Mushtaq Ahmad, S.I. (PW1 1) testified about various steps taken by him during the investigation of this case. Medical evidence was furnished by Dr. Muhammad Shabbir (PW7), who conducted autopsy on the dead body of Ansar Ali deceased ride post-mortem report (Ex.PF), whereby he noted the following injury on the dead body of the deceased: "A"single fire-arm injury of entry was found on the back side of chest on the left side between 7th and 8th inter costal space, bullet crossed in a size of 0.8 x 0.9 cm. Chest was full with blood. Bullet crossed on the left side under the left lung and entered the left atrium. of the heart and made exit out of the right atrium. A single bullet was found in the chest."
After post-mortem of the dead body , the doctor was of the opinion that bullet crossed the vital organ, heart hemorrhage resulted in death. The injury was ante-mortem and caused by fire-arm. Duration between the injuries and death was immediate and between death and post-mortem examination was 3 to 31/2 hours.
The remaining prosecution witnesses, more or less, are formal. The prosecution gave up PWs Fayaz 1095/C, Zahoor Shah, Tasawar Hussain, Imran Ali, Irfan Haider and Ghazanfar Abbas and closed its evidence after tendering in evidence the reports (Ex.PN and Ex.PO) of the Punjab Forensic Science Agency .
6. After completion of prosecution eviden ce, statement under Section 342, Cr.P.C. of the appellant was recorded wherein he professed innocence and pleaded his false implication in the case. While answering to the question, "why this case was registered against you and why the PWs deposed against you?" the appellant stated as under: "Muhammad Arif Pw had to pay Rs. 1,50,000/- to me and some unknown person killed deceased but Arif cleverly Misguided the complainant, who lodged FIR against me. Pws deposed against me due to close relationship with each other ."
The appellant neither opted to get record his statement under Section 340(2), Cr.P.C. nor produced any witness in his defence.
7. At the conclusion of the trial, learned trial Court found the appellant guilty of the charge and convicted and sentenced him as mentioned and detailed above. Hence, the present appeal and the connected- murder reference before this Court.
9. Learned counsel appearing on behalf of the appellant contends that the appellant has been maliciously involved in this case due to erratic guess work and malicious intention of the complainant; that the matter was reported to the police with considerable delay of two hours and thirty five minutes and the FIR was lodged with further delay , which shows that the case was registered after due deliberation and consultation which made the prosecution story highly doubtful. Goes on to maintain that the prosecution has miserably failed to substantiate the fact= of accusation by producing any worthy of credence evidence which aspect of the matter went unnoticed, causing serious prejudice against the appellant; that the so-called eye-witnesses were related interse and interested and in fact they were nothing but chance witnesses who could not advance any plausible justification for their presence at the spot at relevant time; that medical evidence was not in consonance with ocular version which aspect of the matter has not been dilated upon properly; that the ocular account is smeared with intentional dishonest improvements and there are various glaring contradictions which are not noticed by learned trial Court resulting into serious miscarriage of justice against the appellant; that the recovery of pistol .30 bore was planted one and the report (Ex.PO) was maneuvered from the Punjab Forensic Science Agency which is hardly helpful to the prosecution's case; that the motive is farfetched which could not be proved by the prosecution through any independent evidence. While concludin g the arguments, learned counsel submits that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt to connect him with the commission of incident in issue, hence, while accepting his appeal, the appellant may , be acquitted of the charge.
10. Conversely , learned Law Officer vehemently opposes the contentions raised by learned counsel for the appellant and inter alia maintains that the appellant is sole perpetrator of the offence, who is well-nominated in a promptly lodged FIR with specific role of inflicting fire-arm injury and committing intentional murder of an innocent person and the role attributed by the PWs to the appellant' is fully established through the medical evidence; that it was a daytime incident and there was no chance of misidentification of the appellant at the spot; that the presence of eye-witnesses at the place of occurrence is quite natural and their presence cannot at all be disputed; that the prosecution case finds further corroboration from the recovery of weapon of offence effected from the appellant as well as positive report of the Punjab Forensic Science Agency , according to which the crime empty collected from the spot and sent to the Forensic Science Agency prior to the arrest of the appellant was found to have been fired from the pistol .30 bore which was subse quently recovered from him; that the prosecution has proved the motive part of the occurrence and its case stood proved beyond any shadow of reasonable doubt, hence, prayed that while dismissing the appeal filed by the appellant and answering the murder reference in affirmative, his sentence of death may be confirmed.
11. After hearing the arguments advanced by learned counsel for the parties and going through the record, we have observed that it is a case of promptly lodged FIR (Ex.PB) as the matter was reported to the police by Muhammad Akram Complainant (PW4), real father of Ansar All deceased, within short span of two hours and thirty five minutes after the incident which ruled out the element of deliberation or consul tation on the part of Muhammad Akram Complainant (PW4). While appearing in the witness-box, Muhammad Akram Complainant (PW4) stood firm to his stance that it was none else, but the appellant, who, alone, had inflicted a fire-arm injury on the back of Ansar Ali deceased and caused his unnatural death. The other two eye-witnesses of the incident namely Muhammad Arif (PW5) and Muhammad Ashraf (PW6) also deposed in line with the testimony of Muhammad Akram complainant (PW4) and during searching cross-examination on the above said eye-witnesses, :the defence miserably failed to bring on record anything contrary to the version incorporated in the crime report. They all unambiguously explained their availability near the crime scene at the relevant time which could not be shattered by the defence during cross-examination. As far as the contention of learned counsel for the appellant that the appellant was made scapegoat is concerned, we have observ ed that Muhammad Akram complainant (PW4) was real father of ill-fated young person Ansar Ali deceased, while the remaining eye-witnesses Muhamm ad Arif (PW5) and Muhammad Ashraf (PW6) were his maternal uncle and father-in-law respectively and keeping in view their close and sensitive relationship with the deceased, they were not likely to let off the actual perpetrator by implicating the appellant falsely in a case involving the murder of their close relative. It is well settled law that substitution of real culprits especially in cases where the eye-witnesses lost their kith and kin before their own eyes is rare phenomenon.
Reliance is placed on the case of Sheraz Khan vs. The State (2010 SCMR 1772 ). So far as the contention of learned counsel for the appellant that the complainant and the other eye-witnesses were related and interested is concerned, it is well settled by now that an interested witness is one who is interested in the conviction of an accused for some ulterior motive, but the defence could not bring on record any ulterior motive of the complainant or the witnesses to falsely implicate the appellant in this case and when the defen ce failed to attribute any malice on the prosecution witnesses, they are considered as reliable witnesses. Guidance can be sought from the case of "Muhammad Aslam vs. The State" (2012 SCMR 593). We have also observed that all three eyewitnesses produced by the prosecution with one voice pointed their fingers towards the appellant and though they were seriously cross-examined by the defence regarding the incident, but they remained consistent throughout on each and every material point and we have felt no hesitation in concluding that the prosecution had led trustworthy , confidence inspiring and reliable eye-witness account to prove its case against the appellant beyond reasonable doubt.
12. As far as the argument that medical evidence runs contrary to the prosecution version, it may be observed that medical evidence is in complete harmony with the ocular version and no conflict could be pointed out to create dent in the prosecution case as the ante-mortem fire-arm injury on the back of Ansar All deceased, specifically attributed to the appellant, is reflected in his post-mortem report (Ex.PF), which, according to Dr. Muhammad Shabbir (PW7) became the cause of his unnatural death. As far as the contention that the Investigating Officer had observed two scratches on nose and left eye of the deceased while preparing his injury stateme nt is concerned, it is specifically mentioned in the crime report (Ex.PB) that the deceased, after sustaining fire shot, tried to escape from the spot by running his motorcycle, but fell down at some distance, therefore, presence of scratches on nose and left eye of the deceased was not contradictory to the prosecution version. We may observe here that the ocular evidence about the kind of weapon used during the occurrence as well as the date and time of incident as narrated by the eye- witnesses has fully tallied with medical evidence.
13. Apart from the trustworthy and confidence inspiring ocular account duly supp orted by the steadfast medical evidence, there is another important incriminating evidence against the appellant in the shape of recovery of pistol .30 bore (P4) at his instance and positive report (Ex.PO) of the Punjab Forensic Science. Agency , according to which the empty of .30 bore pistol collect ed by the Investigating Officer during spot inspection on 21.08.2013 and received in the said Agency on 27.08.2013 i.e. prior to appellant's arrest on 28.08.2013, was found to have been fired from the pistol .30 bore, which was subsequently recovered on the disclosure and pointing out of the appellant on 01.09.2013 and received in the said Agency on 09.09.2013, thus, the recovery of weapon of offence and the positive report (Ex.PO) has further strengthened the prosecution case against the appellant.
14. Insofar as the motive is concerned, we have observed that the prosecution has set up a specific motive, according to which the appellant commi tted the incident on the dispute of "Risha", but while appearing in the witness-box, Muhammad Akram complainant (PW-4) did not utter a single word in support of motive part of the incident. Though Muhammad Arif (PW-5) and Muhammad Ashraf (PW-6) stated that the appellant wanted to many with the daughter of Muhammad Arif (PW-5) and his son-in-law Ansar Ali was not happy with that proposal that was the reason that he was murdered by the accused, but if this was the motive behind the incident, then Muhammad Arif (PW-5), who was also present at the spot at the time of occurrence, must have been the prime target for the appellant. In our humble view, the motive advanced by the prosecution was not the actual bone of contention between the appellant and the deceased and what in fact had happened between the appellant and deceased, which prompted him to take such extreme steps, remained shrouded in mystery .
15. After analyzing the whole record on the touchstones of the reappraisal of evidence, we have come to a stalwart conclusion that the prosecution has successfully proved its case against Maqbool Ahmad appellant on the charge of committing intentional murder of Ansa r deceased and as such his conviction is neither unfounded nor does it suffer: from any legal infirmity and learned trial Court has rightly convicted him through the impugned judgment, but at the same time, we are not satisfied with the quantum of sentence passed against him. In this context, we have observed that firstly the motive set up by the prosecution could not be proved durin g trial and even the Investigating Officer of this case had failed to collect any material in support of the asserted motive. It has been held by the Hon'ble Supreme Court of Pakistan in many cases that if the prosecution asserts a motive but fails to prove the same, then such failure on the part of the prosecution may react against a sentence of death passed against a convict on a capital charge. Reference is respectfully made to the case of "Qaddan vs. The State" (2017 SCMR 148). Secondly the appellant had made only one fire shot at the deceased and despite having ample opportunity he had not repeated the same rather made aerial firing only while fleeing from the spot. In such like circumstances the Hon'ble Supreme Court of Pakistan has held that non-repetition of injury by the assailant on the person of deceased demonstrate an implied impression that he has not taken unfair advant age of his position as an armed person at the spot rather despite of having ample opportunity , he has refrained himself from doing so and this circumstance can also be taken as a mitigating circumstance to avoid extreme penalty of death to the assailant.
Reliance is placed on the cases of "Muhammad Yaseen vs. The State" (2011 SCMR 905) and "Muhammad Anwar vs. The State" (2017 SCMR 630). It is also well settled law that the accus ed is entitled for the benefit of extenuating circumstance while deciding question of his sentence. Reliance is placed on the cases of "Mir Muhammad alias Miro vs. The State" (2009 SCMR 1188), "Sharafat Ali Khan vs. The State" (2010 SCMR 1205 ) and "Haji Muhammad Sadiq vs. Liaquat Ali and others" ( 2014 SCMR 1034 ).
16. As a result of what has been discussed above, the conviction awarded by learned trial Court to Maqbool Ahmad appellant under Section 302(b), PPC is maintained, but his sentence is altered from death to imprisonment for life.
The amount of compensation imposed upon the appellant and imprisonment in default thereof is, however , upheld and he shall be entitled to the benefit of Section 382-B, Cr.P.C. Consequently with the above modification in the quantum of sentence of appellant, Criminal Appeal No. 576584-J of 2017 is hereby dismissed . Murder Reference No. 199 of 2017 is answered in negative and death sentence of Maqbool Ahmad (convict) is not confirmed .