' SH. IJAZ NISAR, J.---This appeal by leave of the Court is directed against the judgment, dated 21-2- 1993, passed by the Lahore High Court, Lahore, in Criminal Appeal No,255 of 1989 and Murder Reference No,77 of 1990.
2. The facts, in brief, are that Muhammad Yaqoob alias Qooba, petitioner herein, was tried alongwith Aftab Alam for the murder of Ikram Illahi deceased with a firearm. By judgment, dated 21-3-1989, the learned Additional Sessions Judge, Lahore, convicted the appellant under section 302, P.P.C. And sentenced him to death plus of fine of Rs,10,000 or in default to undergo one year's R.I. Half of the fine, if realised, was ordered to be paid to the deceased as compensation. Aftab Alam co-accused was, however, acquitted..
' On appeal, the learned High Court by judgment, dated 21-2-1993 maintained the conviction and sentence of the appellant.
3. Leave was granted to consider whether on the failure of the prosecution to prove the motive set up by it, the extreme penalty of death could have been awarded to the appellant.
4. The prosecution story is that about 3 months before the occurrence, Ikram Illahi deceased and Muhammad Yaqoob alias Qooba appellant had quarrelled with each other over the demand of Jagga Tax by the appellant from the shopkeepers of the area. The matter was got patched up between them. However, the appellant kept on sending threatening messages to the deceased. On 28-8-1986, at about 10.45 p.m. Ikram Illahi deceased alongwith his friends Syed Ashraf Azeem P.W.8 and Zahid Sultan P.W.9 was present near the Bank building in the area of Police Station Tibbi. The appellant accompanied by Aftab Alam accused (since acquitted) and Kalia Sheesha Moti Wala accused (absconder) appeared on the scene carrying fire arms. Raising a Lalkara the appellant fired at the deceased hitting him near the right ear. His companions also fired shots on the deceased, as a result of which he fell down. Saif Ali, a passer by (given up as won over) also suffered injuries on account of indiscriminating firing made by the accused. After the occurrence the accused left the spot. Ikram Illahi deceased and Saif Ali injured were removed to the hospital.
5. On learning about the occurrence, the police reached the hospital where Ihsan Illahi P.W.7, brother of the deceased, recorded his statement Exh.PD. Ikram Illahi died in the hospital on account of the injuries.
' During investigation, the police arrested the appellant on 9-11-1985, and on his personal search recovered pistol .32. Bore containing bullets. The pistol was sent to the Forensic Laboratory for comparison with the crime empty recovered from the spot and the report Exh.PV was in the positive.
6. At the trial, the prosecution examined Ihsan Illahi P.W.7, Syed Ashraf Azeem P.W.8 and Zahid Sultan P.W.9, as eye-witnesses. Muhammad Saleem P.W.5 testified to the recovery of pistol P.7 from the appellant. He also provided the recovery of carbine P.5 from Aftab Alam co-accused. In the medical examination fire-arm injuries were found on the person of the deceased and Saif Ali (not produced).
7. The appellant denied the prosecution allegations and the recovery of pistol from his possession.
He also denied the allegation of abscondance. The motive was also denied by him. No evidence was led by him in defence.
8. Relying on the prosecution evidence the learned trial Court convicted and sentenced the appellant as described above. The learned High Court, though did not believe the motive as set up by the prosecution, nevertheless maintained his conviction and sentence. The learned High Court discussed the motive as under:-- "Ihsan Illahi, Syed Ashraf Azeem and Zahid Sultan P.Ws. Have reiterated the motive part of the version given in the F.I.R. The appellant has denied that he was collecting Jagga Tax or over it had a dispute with the deceased, The appellant is aged about 41 years while the deceased, according to the complainant and the eye-witnesses was a jobless matriculate. There is force in the argument that perhaps he would not have been in a position to even demand the appellant not to indulge in the collection of the Jagga Tax. The motive part of the story does not seem to, be proved."
9. Learned counsel for the appellant mainly addressed arguments on the effect of failure of the prosecution to prove the motive set up by it. He has cited a number of precedents in support of the proposition that where the prosecution sets up a motive but fails to prove it, the accused becomes entitled to lesser sentence provided for the offence. In this case, the prosecution had alleged that the appellant used to demand Jagga Tax which was objected to by the deceased which led to the present incident, but no witness was examined to prove the said allegation. The prosecution could have produced any person from whom the appellant had received or demanded the Jagga Tax but it failed to do so.
In this view of the matter, the learned High Court was justified to observe that the prosecution had failed to prove the motive part of its story Normally, where the motive is shrouded in mystery, the extreme penalty of death is not awarded.
10. In the circumstances discussed above, while maintaining the conviction of the appellant, we alter his sentence from death to imprisonment for life plus the same amount of fine as awarded by the learned trial Court with benefit of section 382-B, Cr.P.C. The appeal is partly allowed to the extent indicated above.