Shehram Sarwar Ch., J.--Mudassar (appellant) was tried by the learned Addl. Sessions Judge, Multan in case FIR No. 13 dated 05.01.2013, offence under Sections 302, 324 and 34, PPC registered at Police Station B.Z. District Multan for murder of Mst. Noureen and causing injures to Mst. Kanwal, wife and daughter of the Complainant respectively . Vide judgment dated 29.06:2016 passed by the learned trial Court, the appellant has been convicted under Section 302(b), PPC and sentence d 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 deceased and in default whereof to further undergo simple imprisonment for six months. He was also convicted under Section 449, PPC and sentenced to imprisonment for life with fine of Rs. 1,00,000/- (rupees one lakh only) and in default thereof, to further undergo simple imprisonment for three months. He was further convicted under Section 324, PPC and sentenced to rigorous imprisonment for seven years with fine of Rs. 1,00,000/- and in default whereof, to further undergo simple imprisonment for three months. All the sentences were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was extended to him. Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 130 of 2016 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, 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 (Ex.P A) of Mahboob Ahmad, complainant (PW.1) is that on 05.01.2013 at around 06:45 p.m. he (complainant) along with his wife Mst. Noureen and daughter Mst. Kanwal and other kids was present in his house. Meanwhile the door of his house was knocked and Mst. Noureen opened the door. Mudassar (appellant), who was cousin (Mamoonzad) of wife of the complainant, along with two unknown persons armed with .30 bore pistols entered the house of the complainant.
The appellant made a straight fire at Mst. Noureen, which landed on her left ear. Mst. Noureen fell on the ground and the blood started oozing from the head. Mst. Kanwal stepped forward to rescu e Mst. Noureen, whereupon the appellant fired at Mst. Kanwal, hitting on her race and right side of chest, who also fell down in injured condition. On hue and cry of the complainant, his broth ers namely ' Manzoor Ahmad Alvi and Maqsood Ahmad and other people of the locality attracted at the spot. The accused persons with their respective weapons decamped from the place of occurrence. Mst. Noureen and Mst. Kanwal were being shifted to the Nishtar Hospital, Multan on 1122, but Mst.
Noureen succumbed to the injury on the way to the hospital. The motive behind the occurrence as alleged in the FIR was that the complainant party wanted to give hand of Mst. Kanwal to some other person, due to which the accused persons had a grudge.
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, Multan to face the trial. Copies of relevant documents were provided to the appellant, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 302, 324, 449 and 34, PPC was framed against him on 27.02.2014, 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 23.06.2016, wherein he refuted all the prosecution allegations levelled against him 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 appellant as well as the learned Prosecutor General for the State assisted by the complainant at a considerable length and have also gone through the record very minutely .
5. This unfortunate incident wherein Mst. Noureen (deceased) lost her life and Mst. Kanwal sustained firearm injuries, wife and daughter of the complainant respectively , as per prosecution, took place on 05.01.2013 at around 06.45 p.m. in the area of Al-Mustafa Colon y situated within the territorial limits of Police Station B.Z. District Multan.
The distance between the place of occurrence and the police station is about two kilometers. The matter was reported to the police through statement (Ex.P A) of Mehboob Ahmad, complainant (PW.1) on the same day at 07.45 p.m. i.e. one hour after the incident and formal FIR (Ex.P A/1) was got registered at 08.10 p.m. The post- mortem examination of the dead body of the deceased and medical examination of Mst. Kanwal Mehboob was conducted on the next day i.e. 06.01.2013 at 11.00 a.m. and 11:30 a.m. respectively . Therefore, considering overall circumstances of the case such as time and place of occurrence, its distance from the police station, we are of the view that there was no conscious or deliberate delay in reporting the crime to the police.
6. The ocular account has been furnished by Mehboob Ahmad, complainant (PW.1), Manzoor Ahmad (PW.2) and Kanwal Mehboob/ injured (PW.3). All the eye-witnesses have reasonably explained their presence on the spot by stating that the complainant (PW.1) and Kanwal Mehboob, injured (PW.3) along with the deceased were present in their, house whereas on hearing hue and cry, Manzoor Ahmad (PW.2) along with Maqsodd Ahmad (given up PW) attracted at the spot where the appellant along with his co-accused came and committed the incident. The occurrence took place in the house of complainant, which has not been disputed by the defence. Therefore, presence of the complainant in his own house along with his daughter Kanwal Mehboob (PW.3) at the time of occurrence is quite natural and probable. Moreover , Mst. Kanwal Mehboob (PW.3) also sustained injuries at the hands of the appellant during the incident. Though the eye-witnesses are closely related to each other and to the deceased but merely because, of their close inter-se relationship or 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 reasons to falsely implicate the appellant 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 Mehboob Ahmad, complainant (PW.1), Manzoor Ahmad (PW.2) and Mst.
Kanwal Mehboob, injured (PW .3) 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 that the complainant party wanted to give hand of Mst. Kanwal Mehboob to some other person, due to which the accused persons had a grudge. No detail as to whom the complainant party wanted to give hand of Mst. Kanwal Mehboob has been mentioned in the FIR or brough t before learned trial Court. No convincing or cogent evidence qua motive part of the incident was produced by the prosecution during trial. We have also observed that no independent witness qua motive was produced during investigation. Therefore, in our view, the prosecution has not been able to substantiate the alleged motive behind the occurrence.
8. It was case of the prosecution in the FIR as well as before learned trial Court that appellant made a straight fire at Mst. Noureen, which landed on her left ear and Mst. Kanwal (PW.3) stepped forward to rescue Mst. Noureen, whereupon the appellant fired at Mst. Kanwal, hitting on her face and right side of chest. Dr. Tasneem Kousar Malik, who conducted post-mortem examination of the dead body of deceased and medically examined Mst.
Kanwal Mehboob (PW.3), appeared before the learned trial Court as PW.7 and furnished medical evidence. The injuries caused by the appellant on the person of the deceased as well as the injured person are available in the post-mortem examination report (Ex.PG to Ex.PH) and medico-legal report (Ex.PJ). Therefore, in our view, the ocular account is fully supported by medical evidence.
9. So far as the recovery of pistol .30 bore (P.8) at the instance of the appellant which was taken into possession vide recovery memo. (Ex.PO) is concerned, we have observed that the occurrence took place on 5.1.2013, the crime empties were taken into possessio n from the spot on the same day which were received in the office of Punjab Forensic Science Agency (PFSA) on 01.03.2013. The appellant was arrested on 14.11.2013, who got recovered pistol .30 bore (P.8) on the same day, which was sent to the office of PFSA on 14.04.2014 and the report of PFSA (Ex.PK) is positive. Therefore, in our view, the prosecution has proved the recovery of pistol .30 bore at the instance of the appellant.
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 appellant 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 are 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 Mehboob Ahmad, complainant (PW.1), Manzoor Ahmad (PW.2) and Mst. Kanwa l Mehboob, injured (PW,3), fully support ed by the medical evidence i.e. statement of Dr. Tasneem Kousar Malik (PW.7), 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 belie ved by us; and (ii) the appellant made only one fire shot at the deceased and there is no allegation of repetition of fire against him.
12. All the above facts of the case lead us to the conclusion that there is extenuating circumstance, 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 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 Mudassar (appellant) from death to imprisonment for life. The convictions and sentences under Sections 449 and 324, PPC as well as the amount of compensation and the punishment in default whereof, as awarded by the learned trial Court, are maintained. All the sentences imposed upon the appellant shall run concurrently . 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.
14. Murder Reference No. 130 of 2016 is answered in the NEGA TIVE and the sentence of death awarded to Mudassar (convict) is NOT CONFIRMED