Shehram Sarwar Ch., J.--Muhammad Tahir alias Bhutto (appellant) was tried by learned Addl. Sessions Judge, Faisalabad in case FIR No. 239 dated 10.05.2004, offence under Section 302, PPC, registered at Police Station Factory Area District Faisalabad for the murder of Muhammad Siddique (deceas ed) father of complainant. Vide judgment dated 17.06.2017 passed by 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. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 445 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 matted 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.PC/1) registered on the statement of Aitzaz Ahsan, complainant (PW.3) is that about eight months ago, Muhammad Siddique father of complainan t had given a room of his haveli to Muhammad Tahir alias Bhutto (appellant) for temporary residence and three days earlier , asked the appellant to vacate the room but he did not pay heed. On 09.05.2004 at sham wela, father of complainant again asked Tahir alias Bhutto to leave the room, whereupon an altercation took place between them but father of complainant did not take its notice. On 10.05.2004 at around 4.30 a.m. the complainant along with his father , Naveed Ahmad and Iftikhar Haider came to haveli of cattle for milking the cows. Father of complainant lit electric bulbs and went in the room to take chaff. When the father of complainant switched on the bulb, Tahir alias Bhutto armed with pistol came in the room from the front room and raised lalkara that he would teach him a lesson for asking to vacate the room and made successive fires at father of complainant within the view of complainant party , which landed on his left leg, left biceps, right clavicle near neck and backside of head, who succumbed to the injuries on the spot in the room of chaff. The appellant shouted that whoever came near, would face the same music and fled away while brandishing pistol. Motive behind the occurrence as alleged in the FIR was that Tahir alias Bhutto (appellant) was temporarily residing in a room of cattle haveli of complainant party and he was forced by father of complainant to vacate the same but he did not want to leave. On this issue, one day prior to the occurrence, hot words were exchanged between father of complainant and the appellant and due to that revenge, the latter committed murder of the former .
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in this case. The appellant was summoned by learned Addl. Sessions Judge, Faisalabad 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 Section 302 PPC was framed against him on 16.04.2014, 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 10.6.2017, wherein he refuted all the prosecution allegations levelled against him and profess ed 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 Muhammad Siddique (deceased) father of complainant lost his life, as per prosecution, took place on 10.05.2004 at around 4.30 a.m. in the area of Chak No. 295/RB situated within the territorial limits of Police Station Factory Area District Faisalabad. The distance between the place of occurrence and the police station is about two and a half kilometers. The matter was reported to the police through statement of Aitzaz Ahsan, complainant (PW.3) on the same day at 5.30 a.m. i.e. one hour after the incident and formal FIR (Ex.PC/1) was got registered at 6.00 a.m. The postmortem examination of the dead body of deceased was also conducted on the same day at 11.50 a.m. Therefore, considering overall circumstances of the casjs, it can safely be concluded that the matter was reported to the police without any conscious or deliberate delay .
6. The ocular account has 'been furnished by Aitzaz Ahsan, complainant (PW.3) and Iftikhar Haider (PW.4). Both the eye-witnesses have reasonably explained their presence on the spot at relevant time. The occurrence took place in the haveli of deceased, which has not been disputed by the defence. Aitza z Ahsan, complainant (PW.3) is son of deceased whereas Iftikhar Haider (PW.4) is maternal nephew (bhanja ) of deceased, who was resident of the same area, 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. 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. Though the eyewitnesses are closely related to the deceased but merely because of their close relationship with the deceased, their evidence cannot be discarded. Therefore, we hold that the witnesses of ocular account namely Aitzaz Ahsan, complainant (PW.3) and Iftikhar Haider (PW.4) 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 to the effect that the Muhammad Siddique (dece ased) had delivered a room to Muhammad Tahir alias Bhutto (appellant) for temporary residence in his cattle. shed (haven), for which, the deceased insisted the appellant to vacate the said room. who did not want to leave the same and for this reason, one day prior to the incident, hot words were exchanged between them and in conseq uence thereof, the appellant committed the murder of deceased. During cross-examination, the complainant admitted that his father had given the room to the appellant about eight months prior to the occurrence without any rent. Further that his father (deceased) neither reported the matter to the police about the incident of motive nor any punchayat was convened in this regard. Same was the stance of Haqnawaz, DSP/I.O. (PW.14) in his cross-examination, who stated that during investigation, no evidence could be collected regarding the quarrel which was allegedly cause of motive for the murder of deceased. We have also observed that no independent witness in respect of the motive was produced during the course of investigation or brought in the witness box during trial. Therefore, in our view, the prosecution has not been able to substantiate the alleged motive behind the occurrence.
8. In the FIR, it was case of the complaina nt that the appellant made successive fires with pistol at his father , which landed on his left leg, left biceps, right clavicle near neck and backside of head. However , while appearing before the learned trial Court. as PW.3, the complainant clarified the situation by stating that the fire shots made by the appellant hit the deceased on his left leg twicely , left ankle, left arm, right clavicle bone near neck and backside of head. Dr. Altaf Pervaiz Qasim, who conducted postmortem examination of the dead body of deceased, appeared before the learned trial Court as PW.11 and furnished medical evidence. The postmortem examination report prepared by him showing the said injuries is available on record as Ex.PH to PH/2. Therefore, we hold that the ocular account in this case is fully supported by the medical evidence.
9. So far as alleged recovery of .30 bore pistol (P.4) at the instance of appellant, which was taken into possession vide recovery memo. Ex.PE, the same is immaterial because of the reason that the report of Punjab Forensic Science Agency (Ex.PR) is simply to the ef fect that the pistol was in mechanical operating condition.
10. Now we take up the version of the-appellant disclosed by him in his statements-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 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 and the recovery of .30 bore pistol (P.4) at the instance of appellant is 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 Aitzaz Ahsan, complainant (PW.3) and Iftikhar Haider (PW.4), fully supported by the medical evidence i.e. statement of Dr. Altaf Pervaiz Qasim (PW.11) 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 believed by us; and (ii) the alleged recovery of 30 bore pistol (P.4) at the instance of the appellant has not been proved.
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 makimum 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 Muhammad Tahir alias Bhutto (appellant) from death to imprisonment for life. The amount of compensation and the punishment in default thereof, as ordered by the learn ed trial Court. are maintained. Benefit of Section 382-B. Code of Criminal Procedure is extended to him. The appeal in hand stands dismissed with the above modification in the quantum of sentence.
14. Murder Reference No. 445 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Muhammad Tahir alias Bhutto (convict) is NOT CONFIRMED . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.