M. Bilal Khan, J--This Criminal Appeal Bearing No, 463 of 2000 is directed against the judgment dated 30.10.2000 passed by the learned Sessions Judge, Islamabad whereby the appellant Ehsan Sharif was convicted under Section 302 PPC and sentenced to death with a compensation to the tune of Rs, 50,000/- to be paid to the legal heirs of the deceased Mst. Sitara Kanwal as required under Section 544-A, Cr.P.C. in default of which the appellant was ordered to further undergo six months R.I. The learned Sessions Judge Islamabad sent Murder Reference No, 637 of 2000 to this Court for the confirmation of death sentence. Both these matters i,e, Criminal Appeal No, 463 of 2000 and Murder Reference No, 637 of 2000 are being disposed of through this judgment.
2. Briefly stated the facts of the prosecution case as disclosed in the FIR by the complainant Tariq Mehmood son of Misri Khali are that on the fateful day i,e, on 4.11.1996 he was working as receptionist in the Meridian International Guest House Islamabad when at about 8:30, a.m. Ehsan Sharif accused/appellant, a Property Dealer of Hamza Associates Block No, 15, Jinnah Market Islamabad, came to him alongwith a girl, whom he claimed to be his wife and demanded a room.
As no room was available at that juncture, therefore, they were lodged in the drawing room. At about 12:30 noon the complainant heard a fire shots a result of which the complainant alongwith Muhammad Ilyas and Amraiz Khan Waiters approached the door of the drawing room. The accused/appellant came out of the drawing room and told them that a glass had been broken and demanded a new glass in its place. At the same time he proceeded towards the bazaar. The complainant and his companions entered the drawing room and found that the girls was lying dead on the carpet close to the bed and her chest was bleeding. A .30-bore pistol was lying on the bed.
3. After the occurrence the accused absconded and was arrested from Karachi on 19.4.1999 in a case under Arms Ordinance almost 2% years after the occurrence.
4. The dead body of the deceased girl who was identified as Mst. Sitara Kanwal by her mother Mst.
Hamida Kausar was brought to FGSH, Islamabad on 5.11.1996 where Dr. Zaib-un-Nisa conducted post-mortem examination and found following injuries:--
1. Wound of entry on lower third of chest front two inches above the xiphisternum measuring 1 cm x 1.5 cm into diameter. Blackening around the margin of the, wound in an area of one and half inch diameter. The wound is exactly in between the breasts.
2. Wound of exit on the back of the chest measuring 8 cm diameter and it is at the same level at the wound of entry, on lower third of the chest back.
3. Blackening on the inner surface of both hands and fingers.
In the opinion of doctor the death was caused due to injury to heart the most vital organ. Injury was antemortem and was caused by firearm. Three vaginal swabs were taken for detection of sperms. if any. Per vaginal examination, no injury/wound on genital tract. Uterus alongwith ovaries being sent for histo-pathology for any evidence of pregnancy. The time ' between injury and death was immediate and between death and postmortem was within 36 hours.
5. After lodging FIR No, 158 dated 4.11.1996 u/S. 302 PPC at Police Station Nabpara, Islamabad, Inspector Jan Nisar Khan reached the place of occurrence and collected from the drawing room of the Meridian Guest House one pistol .30 bore alongwith five bullets which were taken into possession vide memo Ex. PJ. One empty was taken into possession from the spot vide recovery memo Ex. PK. The I.O. also secured blood-stained carpet and made the same into sealed parcel vide memo Ex. PL. He also took into possession one chadder P-6 and one bed sheet P-7 vide recovery memo Ex. P.M. Pieces of glass P-8/1-4 were also taken into possession vide recovery memo Ex. PN. A packet of cigarette Benson Brand P-9 was taken into possession vide memo Ex. PQ.
He also took into possession one pair of lady's shoes P-10/1-2 vide memo Ex. PR. Twenty four glass bangles Ex. 11/1-24 and two hair pins P-12/1-2 were also recovered from the place of occurrence and taken into possession vide memo Ex. PS. One lady's purse Ex. P-13 was also taken into possession vide memo Ex. PT. All these memos were attested by Sher Muhammad ASI and Zahoor Muhammad ASI.
6. After completing necessary investigation the accused was challaned. On 14.3.2000 charge was framed against the accused Ehsan Sharif under Section 302 PPC to which he pleaded not guilty and claimed trial.
7. During the trial the prosecution produced as many as 16 witnesses in support of its case against the appellant. Tariq Mehmood complainant PW-6, Muhammad Ilyas PW-9 and Amraiz Khan PW-10 furnished the ocular account of the incident in question. Sher Muhammad S.I PW-8 and Jan Nisar Khan Inspector PW 15 proved the recovery of Pisto1.30 bore and other articles from the drawing room of Meridian International Guest House Islamabad during the investigation of the case. The medical evidence was provided by PW-16 Dr. Zai-un-Nisa who conducted post-mortem examination of the deceased. Jan Nisar Khan Inspector PW 15 deposed about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less of formal nature.
8. After the close of prosecution case the accused was examined under Section 342 Cr.P.C. He pleaded not guilty. To a question as to why this case against you and why the PWs have deposed against you, the accused Ehsan Sharif answered as below:-- "It is a cooked up story against me. Mst. Sitara Kanwal deceased entered into a sacred marriage bond with me. I fell in love with her. I never knew it that her mother Mst. Hamida Kausar PW is sending her to brothel house for prostitution purposes because I used to be away in connection with my business Tariq. Amraiz and Ilyas PWs were PIMPS and were selling girls for prostitution purposes. The alleged place of occurrence was a den being used for prostituion purposes and the PWs actually knew the details of the occurrence. However, as per my knowledge it is a case of suit tide by a girl for non-payment of immoral and illegal earning of the deceased. PWs were having interest to save themselves, therefore, I was made a scapegoat in this case. The I.O. has left the best evidence for involvement of the accused in connivance with the PWs.
The accused did not opt to make any statement on oath under . Section 340(2) Cr.P.C. and did not produce any witness in his defence.
9. At the conclusion of the trial the learned trial Court found the prosecution case against the appellant Ehsan Sharif to have been proved beyond reasonable doubt and thus the appellant was convicted and sentenced by it as mentioned in detail hereinabove. Hence the present appeal and the connected Murder Reference before this Court.
10. We have heard the learned counsel for the parties and have gone through the record with their assistance.
11. The learned counsel for the appellant at the very outset submitted that he would not challenge the conviction and sentence of the appellant and would only confine his arguments to the quantum of sentence. According to him on account of facts and circumstances of the case the maximum penalty of death sentence was not warranted as there were mitigating circumstances available for lesser sentence. He argued that the entire prosecution evidence would show that no motive has been setup in this case and more importantly it is not spelt out from the prosecution case as to what had transpired immediately before the occurrence. To support his contentions the learned counsel for the appellant was relied on the following reported judgments:-- "(i) Abid Hussain versus The State, PLD 194 Supreme Court 641, wherein their Lordships of the apex Court had converted the death sentence of the accused to life imprisonment as it had appeared in evidence that harsh words were exchanged between the accused and the deceased before the act of firing; (ii)Naubahar versus The State, 1999 S.C.M.R. 637, wherein their lordships had come to the conclusion that the motive remained shrouded in mystery and what had immediately transpired before the occurrence was not known, therefore, it was held to be not a fit case for awarding extreme penalty of death; (iii)Abid Ali and others versus The State, 1995 P.Cr.L.J. 834 (Lahore), in which a Division Bench of this Court had altered the sentence of death awarded to the accused to imprisonment of life as the motive and attending circumstances under which the deceased had been murdered remained shrouded in mystery; (iv)Muhammad Sharif Khan Tareen versus The State, 1995 P.Cr.L.J. 313 (Peshawar), wherein a Division Bench of the Peshawar High Court had converted the sentence of death into life imprisonment because there was no previous between the parties and the immediate cause of death was not ascertainable from the record; and
(v) Khalid alias Khaldi versus The State, 2003 P.Cr.L.J. 638 (Lahore) in which case a Division Bench of this Court while maintaining the conviction and sentence of the accused under Sec. 302 PPC had converted the death sentence into sentence of life imprisonment as the Court had noted certain mitigating circumstances in the case for awarding a lesser punishment."
12. The learned Assistant Advocate General has maintained that the conviction and sentence has rightly been recorded by the learned trial Court, however he had no option but to concede that the circumstances which immediately preceded the firing of the shot were not ascertainable from the record.
13. After examining the record from all angles in detail, we have come to the conclusion that the conclusion of guilt arrived at by the learned trial Court against the appellant is well-founded and does not need any interference. Eyewitnesses were natural witnesses of the occurrence and had supported one another on all material points. Ocular account was corroborated by medical evidence, report of Forensic Science Laboratory and Chemfcal Examiner's report. The witnesses did not have any enmity or ill-will against the accused. His unexplained abscondence for 2 3. years also lent a lot of support to the prosecution case. However, we are in agreement with the learned counsel for the appellant that what happened immediately before the death of Sitara Kanwal is not ascertainable from the record. We are, therefore, of the view that in the peculiar facts and circumstances of this A case the maximum sentence of death awarded to the appellant for murder of Sitara Kanwal is quite harsh and the ends of justice would be better served if lesser penalty of imprisonment of life is imposed. No evidence of previous ill-will and the immediate cause which resulted into unfortunate death of Sitara Kanwal deceased is ascertainable from the record. The motive has neither been alleged in the FIR nor has been stated by any one of the PWs produced by the prosecution.
14. Resultantly we commute the death, sentence into life imprisonment and decline to confirm the death penalty, however, the amount of Rs, 50,000/- awarded as compensation to the legal heirs of Sitara Kanwal deceased under Sec. 544-A, Cr.P.C., in default whereof the appellant shall have to further undergo six months R.I., is maintained. We also direct that the benefit of Sec. 382-B, Cr.P.C. shall be extended to the appellant.
With this modification in the sentence the appeal is dismissed. The sentence of death awarded to the appellant by the learned trial Court vide its judgment dated 30.10.2000 is not confirmed.
Murder Reference No, 637 of 2000 is answered in the negative.