Raja Shahid Mehmood Abbasi, J.--Sajid Mahmood (hereinafter referred as the appellant) was tried by learned Sessions Judge, Attock (hereinafter referred as the learned trial Court) in case FIR No. 157 dated 02.05.2013, registered under Section 302, PPC, at Police Station Hazro, who, vide judgm ent dated 26.09.20, convicted the appellant under Section 302(b), PPC and sentenced him to death with direction to pay Rs. 2,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of Sher-ur-Rehman deceased or in default thereof to undergo six-months S.I.
2. The appellant has assailed his conviction and sentence through Criminal Appeal No. 775 of 2018 , whereas learned trial Court has submitted Reference under Section 374, Cr.P.C. for confirmation or otherwise of the death penalty awarded to him, which is numbered as Murder Reference No. 60 of 2018 . On the other hand, Salheen Khan complainant/petitioner has filed Criminal Revision No. 278 of 2018 , seeking enhancement of amount of compensation imposed against the convict/respondent. We propose to decide all these matters together through this single judgment.
3. The prosecution story unfolded in FIR (Ex.PG/1) is that Salheen Khan complainant was resident of village Lakori and was cultivator by profession. On 02.05.2013, he was going to the house of his maternal cousin Sher-ur- Rehman to call him as he was going to arrange a thresher machine for harvesting wheat crop. At about 10:30 a.m. when he reached near the house of Sher-ur-Rehman, he saw the appellant present there on a motorcycle who was calling him. As soon as Sher-ur-Rehman caine out from his house, the appellant made repeated pistol shots targeting both sides of chest, left arm, left calf and front side of belly of Sher-ur-Rehman (hereinafter referred as the deceased). Besides complainant, Wasiq Khan, Khan Muhammad and Mst. Rabia Bibi widow of the deceased also witnessed the occurrence and many people had gathered there. The deceased was being shifted to the hospital, but he succumbed to the injuries on the way. The incident had taken place in the backdrop of appellant's suspicion over the illicit relations of his sister with the deceased, hence, the crime report.
4. After registration of FIR, the appellant became proclaimed offender but ultimately he was arrested and finding him involved in the case, the investigating officer prepared and submitted the report under Section 173, Cr.P.C. before the Court.
5. On being indicted, the appellant pleaded not guilty and claimed trial. The prosecution in order to prove its case produced as many as fourteen witnesses, the detail of which finds an elaborate mention in the judgment passed by the learned trial Court, therefore, the same may not be reproduced here. so as to avoid duplication and unnecessary repetition. After tendering the report (Ex.PN) of the Punjab Forensic Science Agency , the prosecution closed its evidence.
6. Thereafter the statement under Section 342, Cr.P.C. of the appellant was recorded wherein he refuted the allegations leveled against him and profe ssed his innocence. In response to the question "why this case is against you and why the witnesses have deposed against you?" he stated as under:- "All the witnesses are inter related to each other and in connivance with police, they cooked up a false story . I was falsely involved in this case. I am innocent."
However , he neither opted to record his own statement under Section 340(2), Cr.P.C. nor produced any witness in his defence.
7. Learned trial Court vide judgment dated 26.09.2018 found the appellant guilty of offence, convicted and sentenced him as mentioned above. Hence, this appeal, connected criminal revision and murder reference before us.
8. Learned counsel appearing on behalf of the appellant contended that the prosecution has miserably failed to substantiate the factum of acquisition by producing worthy of credence evidence which aspect of the matter went unnoticed causing serious prejudice against the appellant; that the FIR was lodged after due deliberation and consultation and for this purpose, daily diary was stopped in order to show promp tness in lodging of FIR; that the prosecution witnesses have made false depositions with mala fide intention and ulterior motive; that the witnesses are related inter-se and are interested and there are material contradictions in their statements; that the recovery is planted one and the report of the Punjab Forensic Science Agency was maneuvered in order to strengthen the prosecution case; that the proceedings for declaring the appellant as proclaimed offender were secretly completed and the same have no legal effect on the fate of the case; that the medical evidence produced in this case has also badly shattered the prosecution version; that a false motive was set up in this case, which could not be proved during trial; that the prosecution has failed to prove its case beyond the shadow of doubt and the evidence so produced is not confidence-inspiring and is not worthy of credence, hence, prays for acquittal of the appellant from the charge of this case.
9. Conversely , learned Deputy District Public Prosecutor assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant and inter alia maintained that the appellant is nominated in a promptly lodged FIR with specific role of committing murder of an innocent person; that the presence of eye-witnesses at the place of occurrence has not been seriously disputed by the defence; that the prosecution case finds full corroboration from medical evidence as well as the recovery of weapon of offence and the motorcycle used by the appellant during the occurrence; that the appellant remained fugitive from law for considerable period, which was only because of his guilty conscious; - that the prosecution has also proved the motive part of the occurrence; that the defence version is afterthought which cannot save the skin of the appellant; that the judgment of learned trial Court is well-reasoned and sufficient incriminating evidence is available on the record, justifying conviction and sentence passed against the appellant; that the prosecution case stands proved from all corners and as there is no mitigating circumstance in favour of the appel lant, the learned trial Court had rightly sentenced him to death, thus prayed for maintaining the conviction and sentences awarded to the appellant.
While arguing criminal revision, learned counsel for the complainant further prayed for enhancement of the amount of compensation.
10. After hearing the learned counsel for the parties and going through the record, we have felt no hesitation in concluding that the prosecution had indee d succeeded in proving its case against the appellant beyond reasonable doubt. We have observed that the crime report (Ex.PG/1) had been lodged with sufficient promptitude and the appellant had been nominated therein as the sole perpetrator of the offence. It was also specifically mentioned in crime report (Ex.PG/1) that Salheen Khan complainant, Wasiq Khan, Khan Muham mad and Mst. Rabia Bibi widow of the deceased had witnessed the incident with their own eyes and among them, Salheen Khan complainant appeared in the witness box as PW-9 and got recorded his statement wherein he reiterated the 'same facts which he had got incorporated in crime report (Ex.PG/1). He (PW-9) was duly supported by Wasiq Khan (PW-10) and during arguments, learned counsel for the appellant could not point out any discrepancy , inconsistency or material contradiction between the statements of 'two eye-witnesses. They remained unison all minor as well as material aspects of the case. They also categorically stated that the appellant, alone, had made repeated pistol shots and inflicted firearm injuries on the person of Sher-urRehman deceased, which proved fatal and left no room for his survival. They had narrated graphic details of the incident and had unambiguously explained their presence at the spot at the relevant time, which even otherwise is established from the questions put by the defence itself while conducting cross-examination on them. It is noteworthy that the eye witnesses produced by the prosecution before the learned trial Court were cousins of the deceased and due to their close relationship, they were not likely to falsely implicate the appellant by letting off the actual culprit, because, they had admittedly no grudge, enmity or any sinister motive to do so. We have further observed, that the above said eye-witnesses found ample corroboration from the medical evidence and though argued by learned counsel for the appellant but no conflict could be pointed out between the medical and the ocular evidence, which are in complete harmony with each other . There is another circumstance that the appellant remained fugitive from law for considerable period of almost four years and four months after the incident, which was only because his inner conscience constrained him to escape, from the vicinity after committing the occurrence to save his skin from criminal prosecution otherwise an innocent person cannot even think so and he should at the first instance present him before the police immediately to prove his innocence.
11. Though sufficient incriminating evidence is available on the file to connect the appellant with the murder of the deceased, yet we are not much convinced with the prosecution evidence regarding the recovery of weapon of offence i.e, pistol .30 bore as well as motorcycle and the motive, which, are the weak limbs of its case. In this regard, we are of the view that the recovery of pistol .30 bore from the appe llant is inconsequential' to the prosecution case because the report of the Punjab Forensic Science Agency has not been exhibited in evidence and the same has been withheld by the prosecution. Similarly , the eye-witnesses could not disclose the registration number of the motorcycle used during the incident and in such eventuality , it would not be safe to believe that the motorcycle recovered from the house of appellant's brother was the same which he had used during the incident.
We have also observed that the motive part of the prosecution case i.e. appellant's suspicion of illicit relations of the deceased with his sister has not satisfactorily been established during the trial, because, no evidence is available on the record except the oral assertion of Salheen Khan complainant (PW-9). Even the other eyewitness Wasiq Khan (PW-10) has also not stated anything so as to corroborate Salheen Khan complainant (PW-9) to the extent of motive. In these circumstances, we are of the view that the actual motive, which prompted the appellant to take such extreme steps and commit the murder of the deceased, remained shrouded in mystery .
12. In view of the above state of the evidence produced by the prosecution, if we exclude the evidence of motive and the recovery of weapon of offence as well as motorcycle from our consideratio n, even then we have sufficient reasons to hold that the prosecution has proved its case against the appellant beyond the shadow of any doubt and as such the judgment recorded by learned trial Court to the extent of convic tion of the appellant is neither unfounded nor does it suffer from any legal infirmity . However , keeping in view the peculiar facts and circumstances of the case, we are not agreed with the death sentence awarded by the learned trial Court to the appellant, because it manifests from the record that the prosecution could not prove the motiv e alleged against the appellant, therefore, we are of the view that alternate sentence of imprisonment for life, which is also a legal sentence, shall meet the ends of justice. Reliance is placed on the case of "Qaddan v . The State " (2017 SCMR 148 ).
13. In the light of above discussion, the conviction awarded to the appellant by learned trial Court under Section 302(b) PPC is maintained, but his sentence is converted from death to imprisonment for life. However , the amount of compensation imposed by learned trial Court upon the appellant under Section 544-A, Cr.P.C. and the imprisonment in default thereof is upheld and the benefit of Section 382-B, Cr.P.C. is also extended in his favour .
Consequently , with the above modification in the quantum of appellant's sentence, Criminal Appeal No. 775 of 2018 is hereby dismissed . Murder Reference No. 60 of 2018 is answered in negative and death sentence of Sajid Mahmood (convict) is not confirmed.
14. For the foregoing reasons, Criminal Revision No. 278 of 2018 filed by the complainant for enhancement of compensation amount is dismissed in limine.