Shehram Sarwar Ch., J.--Muhammad Mushtaq and Aamir Shahzad (appellants) along with their co-accused namely Muhammad Ashfaq, Muhammad Shahbaz and Ghulam Mustafa were tried by the learned Addl. Sessions Judge, Renala Khurd in a private complaint under Sections 302, 324, 109, 148 and 149, P.P.C. instituted by Muhammad Iqbal, complainant (PW.2) being dissatisfied with the investigation conducted by the police in case FIR No. 21 dated 21.01.2014, offence under Sections 302, 324, 109, 148 and 149, P.P.C. registered at Police Station City Renala Khurd District Okara for the murder of Muhammad Amin (deceased) brother of complainant and launching murderous assault on the complainant. vide judgment dated 04.05.2017 passed by the learned trial Court, Muhammad Muphtaq (appellant) has been convicted under Section 302(b), P.P.C. and sentenced to death, with a further direction to pay Rs. 2,00,000/. (rupees two lakh only) as compensati on 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. Aamir Shahzad (appellant) has been convicted under Section 324, P.P.C. for murderous assault upon the injured and sentenced to rigorous imprisonment for ten years, with fine of Rs. 50,000/- (rupees fifty thousand only) and in default thereof, to further undergo simple imprisonment for four months. Half of the fine, if realized, was ordered to be paid to the complainant. The said appellant has further been convicted under Section 337-F(v), P.P.C. and sentenced to five years rigorous impriso nment with payment of daman amount ing to Rs. 50,000/-(rupees fifty thousand only) to the complainant/injured. The sentences awarded to Aamir Shah zad (appellant) were ordered to run concurrently with benefit of Section 382-B, Cr.P.C. Through the same judgment, Muhammad Ashfaq, Muhammad Shahbaz and Ghulam Mustafa, co-accused of the appellants were acquitted of the charge by extending them benefit of doubt and no Cr.P.S'.L.A. was filed either by the State or the complainant,, as conceded by learned Addl Prosecutor . General as well as learned counsel for the complainant. Assailing the above convictions and sentences, the appellants have filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 309 of 2017 for confirmation or otherwise of Muhammad Mushtaq, 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 Iqbal (PW.2) is that on 21.01.2014 at around 10.30 a.m., after attending the Court of learned Addl. Sessions Judge, Renala Khurd in a suit filed by Muhammad Mushtaq (appellant), the complainant along with his brother Muhammad Amin, Muhammad Akhtar and Muhammad Altaf went to the chamber of Muhammad Azam Jutt, Advocate and sat there. Meanwhile, Muhammad Ashfaq, Muhammad Mushtaq (appellant), Muhammad Shahbaz, Aamir Shahzad (appellant) all armed with .30 bore pistol and an unknown co-accused (who can be identified on confrontation) arrived there suddenly and Muhammad Shahbaz as well as unknown co-accused raised lalkara to teach a lesson to Muhammad Iqbal and Muhammad Amin for litigation and murder them. Whereupon, Muhammad Mushtaq made a straight fire with pistol at Muhammad Amin (deceased), which landed on his left eye, who fell down in injured condition. Aamir Shahzad (appellant) fired a straight shot with .30 bore pistol at the complainant hitting on his left shoulder , who also fell on the ground. Muhammad Ashfaq kept on making fires with his pistol. Muhammad Akhtar and Muhammad Altaf saved their lives while lying on the ground. On hearing report of firing, many persons attracted to the spot and the accused fled away . Muhammad Akhtar and Muhammad Altaf shifted the complainant and his brother Muhammad Amin to RHC Hospital, Renala Khurd where Muhammad Amin succumbed to the injuries whereas the doctor after giving first aid to the complainant referred him to DHQ Hospital Okara. It was alleged in the FIR that the occurrence was committed by the accused on the abetment of Ghulam Mustafa.
3. Being dissatisfied with the investigatio n conducted by the police, Muhammad Iqbal, complainant instituted a private complaint titled as "Muhammad Iqbal vs. Muhammad Mushtaq etc.", on the same facts as narrated in the FIR.
4. After recording of cursory evidence in the present case, the appellants and their co-accused namely Muhammad Ashfaq, Muhammad Shahbaz and Ghulam Mustafa were summoned by the learned trial Court 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, 324, 337-F(v), 109, 148 and 149, P.P.C. was framed against them on 27.04.2015, to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as six witnesses whereas eleven were examined as Cour t witnesses. Statements of the appellants and their co-accused under Section 342 of the Code of Criminal Procedure were recorded on 31.03.2017, wherein they refuted all the prosecution allegations levelled against them and professed their innocence. The appellants did not appear as their own witnesses in disproof of the prosecution allegations as provided under Section 340(2) of the Code of Criminal Procedure, however , Dr, Parvez Imtiaz was produced by the defence and his statement was recorded as DW.
1. After conclusion of trial, the learned trial Court convicted and sentenced the appellants and acquitted their co-accused, as detailed above. Hence this appeal' and murder reference.
5. At the very outset learned counsel for the appellants submit that they do not press the convictions of Aamir Shahzad (appellant) however , request for reduction of his sentences. Considering the peculiar facts of this case, agony of the trial faced by Aamir Shahzad (appellant) and with the consent of learned Law Officer and learned counsel for the complainant, while maintaining conviction of the appellant under Section 324, P.P.C., his sentence is reduced from ten years to five years. Rest of the convictions/sentences of the said appellant are maintained.
Both the sentences shall run concurrently Benefit of Section 382-B, Cr.P.C. is extended to Aamir Shahzad (appellant).
6. With the above modification in the sentences of Aamir Shahzad (appellant), this appeal to his extent stands dismissed as having not been pressed.
7. So far as appeal to the extent of Muhammad Mushtaq (appellant) is concerned, learned counsel for appellant contends that the matter was reported to the police with due deliberation and consultation; that the appellant has falsely been implicated in this case; that the story of prosecution is highly improbable and presence of witnesses of ocular account namely Muhammad Iqbal, complainant/injured (PW.2) and Muhammad Akhtar (PW.3) at the place of occurrence at relevant time is of doubtful nature; that a vague motive has been set out in the private complaint and brought before the learned trial Court, which has not been proved by the prose cution; that the ocular account is not in line with the medical evidence; that the alleged recovery of .30 bore pistol (P.3) at the instance of appellant is inconsequential as the report of Punjab Forensic Science Agency (Ex.PJJ) is in the negative; that the version of the appellant more probable, convincing and even gets full support from prosecution's own case; that viewing from all angles, the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
8. On the other hand, learned Addl. Prosecutor General assisted by learne d counsel for the complainant vehemently opposes this appeal on the grounds that the matter was reported to the police with promptitude; that Muhammad Iqbal, complainant/injured (PW.2) and Muhammad Akhtar (PW.3) have no deep-rooted enmity with the appellant to falsely implicate him in this case; that eyewitnesses have reasonably explained their presence on the spot at relevant time which is quite natural and probable; that Muhammad Iqbal, complainant (PW.2) is an injured witness of this case, and the medical officer (PW.6), who medically examined him, nowhere stated before the learned trial Court that the injuries on his person were self suffered; that the prosecution has also proved motive part of the occurrence; that the medical evidence is in line with the ocular account; that the prosecution has proved its case to the hilt against Muhammad Mushtaq (appellant), which is farther corroborated by the recovery of .30 bore pistol (P.3) at his instance and positive report of Punjab Forensic Science Agency (Ex.PJJ); that the version of the appellant is nothing but an afterthought, therefore, the appeal filed by the appellant merits dismissal.
9. We have heard arguments of learned counsel for the parties as well as learned Addl. Prosecutor General for the State to their entire satisfaction, given our serious consideration to their respective submissions and also perused the record.
10. This unfortunate incident wherein Muhammad Amin (deceased) brother of the complainant was done to death, whereas, Muhammad Iqbal, complainant (PW.2), sustained injuries, as per prosecution, took place on 21.01.2014 at about 10.30 a.m. in Tehsil Katchery Renala Khurd in the area of Muslim Town situated within the territorial limits of Police Station City Renala Khurd District Okara. The matter was reported to the police through statement (Ex.PB) of Muhammad Iqbal, complainant (PW.2) on the same day at 1.00 p.m. i.e. about two and a half hours after the occurrence. Distance between the police station and the place of occurrence is about three furlong. The complainant was medically examined on the same day at 11.30 a.m. whereas postmortem examination of the dead body of deceased was conducted at 10.30 p.m. We have noted that in the FIR, private complaint as well as before the learned trial Court, it was the case of prosecution that after the occurrence, the complainant and deceased were shifted to RHC Hospital, Renala Khurd where the deceased died and the complainant after first aid was referred to the DHQ Hospital, Okara. No doubt, in such like cases the first and foremost priority of the kith and kin of the injured is to rush for medical treatment instead of having resort to the Police. Therefore, after considering the relevant circumstances, we are of the view that the delay in . reporting the matter to the police is not conscious or deliberate.
11. Ocular account was furnished by Muhammad Iqbal, complainant/injured (PW.2) and Muhammad Akhtar (PW.3). Both these eyewitnesses have reasonably explained their presence before the learned trial Court by stating that on the day of occurrence, after attending the Court, they along with Muhammad Amin (deceased) and Muhammad Altaf (given up PW) went to the chamber of their advocate namely Muhammad Azam Jutt where Muhammad Mushtaq, appellant and his co-accused arrived and committed this incident. The place of occurrence has not been disputed by the defence, therefore, the presence of witnesses of ocular account on the spot at the time of incident cannot be considered unnatural or improbable. Even Muhammad Iqbal, complainant (PW.2) also sustained injuries during the incident and the medical officer (PW.6), who medically examined him did not state anywhere before the learned trial Court that the injuries on his person were self suffered. Both the witnesses of ocular account were cross examined at length but nothing favourable to the defence could be extracted. Though they are closely related inter-se and to the deceased as the complainant (PW.2) was brother of deceased and Muhammad Akhtar (PW.3) is brother-in-law (sala) of complainant but merely because their close inter-se relationship or with the deceased, their evidence cannot be discarded. Therefore, we hold that both the witnesses of ocular account i.e. Muhammad Iqbal, complainant/injured (PW.2) and Muhammad Akhtar (PW.3) were present at the spot and had witnessed the incident.
12. Motive behind the occurrence as alleged in the private complaint and brought before the learned trial Court was to the effect A that the complainant party has civil litigation over a piece of land with Muhammad Mushtaq, Muhammad Ashfaq, Aamir Shahzad and Muhammad Shahbaz. The mother of complainant had agricultural land measuring 12 kanals 11 marlas which was illegally possessed by the appellant side. Muhammad Amin purchased one acre of land from Muhammad Shahbaz over which the accused intended to take illegal possession and the cases of different nature were pending in Courts between the deceased and the accused. Earlier to this, Muhammad Mushtaq, Muhammad Ashfaq, Muhammad Shahbaz and an unknown co-accused extended threats of murder to the complainant in Tehsil Katchery Renala Khurd and the complainant got registered criminal case bearing FIR No. 465 dated 04.11.2013 under Section 506-B, P.P.C. at. Police Station City Renala Khurd.
Admittedly , the previous enmity exists between the parties. It is well established by now that motive is a double edged weapon because if it could be a reason for commission of the crime, then at the same time, it could prompt the complainant's side for false implication of an accused, therefore, the motive alone can neither prove nor disprove a crime and the same has to be weighed with the other attending circum stances 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 trial. Therefore, in our view, the prosecution has not been able to substantiate the alleged motive behind the occurrence.
13. It was the case of prosecution in respect of Muhammad Mushtaq (appellant) that he made, a fire at Muhammad Amin (deceased) which landed on his left eye. Dr. Muhammad Sharif, who conducted autopsy of the dead body of deceased, appeared as PW. 1 and furnished the medical evidence. The postmortem examination report showing the said injury on the person of deceased is available on record as Ex.PA to PA/2. Therefore, we hold that the ocular account is fully supported by medical evidence.
14. So far as the alleged recovery of .30 bore pistol (P.3) at the instance of appellant which was taken into possession vide recovery memo. (Ex.PG) is concerned, the same is inconsequential because of the reason that the report of Punjab Forensic Science Agency (Ex.PJJ) in this regard is in the negative.
15. Now we take up the version of Muhammad Mushtaq (appellant) disclosed by him in his statement recorded under Section 342, Code of Criminal Procedure. The appellant did not appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2), Code of Criminal Procedure. Though Dr. Parvez Imtiaz (DW.1) brought out-door patient register before the learned trial Court wherein at Sr. No. 448, one Mushtaq aged 34 years came in hospital at 10.30 p.m. on 20.01.2014, suspected to be patient of dengue but the said DW stated during his cross examination that there was no detail of bed or ward number on the out-door patient ticket (Ex.DW .1/A). According to his record, DW.1 was unable to say as to whether the said appellant remained under treatment of any doctor of Govt. Teaching Hospital, Shandara, Lahore. Considerin g 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.
16. From the above circumstances, we are of the considered view that even if the evidence of motive and alleged recovery of .30 bore pistol (P.3) at the instance of Muhammad Mushtaq (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 Iqbal, complainant/injured (PW.2) and Muhammad Akhtar (PW.3), fully supported by the medical evidence i.e. statement of Dr. Muhammad Sharif (PW.1) and postmortem examination report (Ex.P A to PA/2) to maintain his conviction under Section 302(b), P.P.C., which is accordingly maintained. However , it is not a case of capital punishment because of the reasons: (i) motive set up by the prosecution has not been believed by us; and (ii) that the alleged recovery of .30 bore pistol (P.3) at the instance of appellant has not been proved.
17. 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), P.P.C., 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 Micro vs. The State" (2009 SCMR 1188) and "Zafar labal and others v . The State" (2014 SCMR 1227 ).
18. Therefore, while maintaining the conv iction under Section 302(b), P.P.C., we alter the sentence of Muhammad Mushtaq (appellant) from death to impri sonment for life. The amount of compensation and the punishment in default whereof, as ordered by the learned trial Court, are maintained. Benefit of Section 382-B, Code of Criminal Procedure is extended to the appellant. The appeal in hand to his extent stands dismissed with the above modification in the quantum of sentence.
19. Murder Reference No. 309 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Muhammad Mushtaq (convict) is NOT CONFIRMED .