Shehram Sarwar Ch., J.--Ghulam Qadir (appellant) was tried by the learned Sessions Judge, Vehari in case FIR No. 317 dated 08.06.2015, offence under Sections 302 and 34, PPC, registered at Police Station Luddon District Vehari for the murder of Liaqat Ali, son of complainant. Vide judgment dated 22.12.2016 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. 2,00,000/-(rupees two 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. 02 of 2017 for confirmation or otherwise of the appellant's sentence of death, as required under Section 374, 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.P A) registered on the statement of Muhammad Sharif, complainant (PW.6) is that on the intervening night of 7/8.6.2015 at 10:45 p.m. he along with his son Liaqat Ali, Muhammad Saeed and Hafiz Khizar Abbas was talking while sitting in the Courtyard of his house. Suddenly three unknown accused persons, out of them one Ghulam Qadir (appellant) armed with pistol, came there on one motorcycle. The unknown accused stood on the motorcycle outside the haveli whereas the appellant entered the haveli and within their view started firing, which landed on the right side of chest and right flank of Liaqat Ali, who fell on the ground in injured condition. The complainant party attempted to capture the appellant, upon which the appellant raised a lalkara that if anyone came near would face the same consequences and succeeded to escape from the place of occurrence. Liaqat Ali was attended to by the complainant party and was shifted to the DHQ Hospital Vehari where he succumbed to the injuries soon after reaching there. Motive behind the occurrence as alleged in the FIR was that the appellant had an evil eye on Noushad Bibi daughter-in-law (bahu) of complainant and 3/4 months ago, the appellant had abducted her, who was returned through panchayat and due to that grudge, the appellant committed murder of deceased.
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 Sessions Judge, Vehari 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 Sections 302 and 34, PPC was, framed against him on 01.10.2015, to which he pleaded not guilty and claimed trial. After the closure of prosecution evidence, statement of the appellant under Section 342, Code of Criminal Procedure was recorded on 08.12.2016, wherein he refuted all the allegations of prosecution 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. After conclusion. of the trial, the learned trial Court convicted and sentenced the appellant as detailed above. Hence, this appeal and murder reference.
4. We have heard learned counsel for the parties as well as learned Deputy Prose cutor General for the State and gone through the record with their able assistance.
5. This unfortunate incident wherein Liaqa t Ali (deceased) son of complainant lost his life, as per prosecution, took place on the intervening night of 07/08.06.2015 at around 10.45 p.m. in the area of Mauza Kot Muhaminad Hussain situated within the territorial limits of Police Station Luddan District Vehari. The distance between the place of occurrence and the police station is about five miles. The matter was reported to the police through statement (Ex.P A) of Muhammad Sharif, complainant (PW.6) on the same night i.e. 08.06.2 015 at 1.00 a.m. two hours and fifteen after the incident and formal FIR was got registered at 1.55 a.m. We have noted that it was case of the complainant in the FIR and before the learned trial Court that after the incident, they shifted DHQ Hospital Vehari for medical treatment but he had succumbed to the injuries. The postmortem examination of his dead body was conducted on the same day at 5.30 a.m. Therefore, considering overall circumstances of the case, it can safely be concluded that the delay , if any, in reporting the crime to the police was not conscious or deliberate as 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 reporting the matter to the police.
6. The ocular account has been furnished by Muhammad Sharif, complainant (PW.6) and Khizar Abbas (PW.7).
Both the eye-witnesses have reasonably explained their presence on the spot at relevant time. The occurrence took place in the Courtyard of house of deceased. The complainant is father of deceased while Khizar Abbas (PW.7) is his (deceased) maternal cousin , therefore, their presence on the spot at the time of incident cannot be considered unnatural or improbable. Though the eye-witnesses are closely related to the deceased but merely because of their close relationship 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 7" falsely implicate the appellant in this case by letting off the real culprits. Moreover , it is a case of single accused so far as injuries on the person of deceased are concerned and substitution in such like cases is a rare phenomenon.
Therefore, we hold that the witnesses of ocular account namely Muhammad Sharif , complainant (PW.6) and Khizar Abbas (PW .7) 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 appellant had an evil eye on Noushad Bibi daughter-in-law (bahu) of the complainant and 3/4 months prior to the occurrence, he (appellant) had abducted her, who was returned through panchayat. It was also stated in examination-in-chief by the complainant that the deceased used to forbid the appe llant to visit his house, hence he committed his murder . During cross-examination, the complainant himself admitted that no FIR regarding abduction of Noushad Bibi was got registered against the appellant by him or Liaqat Ali, deceased. Even no application was moved to the police in this regard. The person it on the punchayat was also not produced during investigation to prove the fact of abduction. The I.O. (PW.8) also conceded that he did not associate wife or off spring of the deceased in the investigation. We have also noted that no independent witness qua motive was brought in the witness box during trial proceedings. 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 compla inant that the appellant made firing and fire shot landed on right side of chest and right flank of Liaqat Ali (deceased). However , the complainant clarified the situation before the learned trial Court by stating that the fire shot made by the appellant hit the deceased on right side of his chest. Dr. Abdul Raees, Medical Officer, who conducted postmortem examination of the dead body of deceased, appeared before the learned trial Court as PW.3 and furnished medical evidence. The postmortem examination report showing the said injury along with exit wound on back of right side of chest of deceased, is' available on record as Ex.PC & PC/1. Therefore, the ocular account in this case is fully supported by medical evidence.
9. So far as alleged recovery of .30 bore pistol (P.3) at the instance of appellant, which was taken into possession vide recovery memo. Ex.PE is concerned , the same is immaterial because of the reason that the pistol, as per I.O.
(PW.8), was got recovered by the appellant from underneath a tree within the limits of Mauza Hunjan near Satluj river, which is an open place, accessible to everyone.
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 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 tightly 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.3) at the instance of appellant 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 Muhammad Sharif, complainant (PW.6) and Khizar Abbas (PW.7), fully supported by the medical evidence i.e. statement of Dr. Abdul Raees, Medical Officer (PW.3), to maintain his conviction under Section 302(b), PPC, which is accordingl y 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 .3) 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 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 Ghulam Qadir (appellant) from death to imprisonment 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 stands dismissed with the above modification in the quantum of sentence.
14. Murder Reference No. 02 of 2017 is answered in the NEGA TIVE and the sentence of death awarded to Ghulam Qadir (convict) is NOT CONFIRMED.