Manzoor Ahmad Malik, J.--This judgment shall dispose of Criminal Appeal No, 673/04 (Asghar Ali etc. us. The State); Criminal Revision No, 980/04 (Munawar Hussain us. The State) and Murder Reference No, 296/04 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to appellant Asghar Ali, as they arise out of the same judgment dated 23.4.2004 passed by the learned Sessions Judge, Hafizabad, whereby, appellant Asghar Ali was convicted for the murder of Azhar Iqbal under Section 302(b) PPC and sentenced to death as Tazir with a further direction to pay a compensation of Rs, 50,000/- as provided under Section 544-A Cr.P.C. to the legal heirs of the deceased in default whereof to further undergo SI for six months. Appellant Muhammad Akbar @ Akbari was convicted for the same murder under Section 302(b)/34 PPC and sentenced to imprisonment for life as Tazir with a further direction to pay a compensation of Rs, 30,000/- as provided under Section 544-A Cr.P.C. to the legal heirs of the deceased in default whereof to further undergo SI for six months. He was extended benefit of Section 382-B Cr.P.C.
However, benefit of doubt was extended to Ghulam Mustafa and Muhammad Mansha co-accused by way of their acquittal from the charges levelled against them.
2. Brief facts of the case, as given by PW-12 Munawar Hussain (complainant) in the FIR (Exh.PD/1) are that 2.12.2002, he along-with his sons Azhar Iqbal, Zafar Iqbal and Zafar Iqbal son of Noor Muhammad were coming from their dera towards home. According to the complainant at about 4.40 p.m. when they reached near Government Boys Primary School, Asghar Ali armed with .30 bore pistol, Basit @ Basoo armed with .30 bore pistol and Muhammad Akbar @ Akbari who was having a motorcycle, came and raised Lalkara whereafter Asghar Ali (appellant) fired a shot with his pistol which hit Azhar Iqbal on his abdomen, second shot tired by Basit @ Basoo hit Azhar Iqbal on his abdomen who fell down on the ground whereafter two shots were fired by Asghar Ali (appellant) which landed on the left knee and right shin of Azhar Iqbal (deceased). It has been mentioned by the complainant in the FIR that on the hue and cry raised by them, Asghar Ali (appellant) and Basit Ali (acquitted co-accused) alongwith Muhammad Akbar @ Akbari (appellant) fled away from the spot on the motorcycle. It has further been mentioned in the FIR that the accused committed the offence with the abetment of Ghulam Mustafa and Muhammad Mansha while Ashiq Hussain and Noor Muhammad were witnesses of abetment. The motive stated in the FIR was a dispute over a "Shamlaat Deh".
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the accused as required under Section 265-C of the Code of Criminal Procedure, charge was framed to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution produced as many as 15 witnesses during the trial. The appellants/accused were examined under Section 342 Cr.P.C. They did not opt to depose on Oath as required under Section 340(2) Cr.P.C. However, Asghar Ali produced Muhammad Younus Patwari as DW-1 in his defence.
5. Learned counsel for the appellants contends that the FIR was registered after due deliberations and consultations and it was not promptly lodged, as claimed by the prosecution, for the reasons that the doctor who conducted post-mortem examination on the dead body of deceased has admitted that he had received the requisite papers about thirty minutes prior to the post-mortem examination which was conducted on the following morning of the occurrence although all facilities were available in the said hospital; that the person who had escorted the dead body from the place of occurrence to the mortuary has admitted that he had brought the dead body to the hospital on the same day; that recovery memos which were prepared on the same day also show that the FIR was registered with deliberations and consultations as names of the accused are not mentioned in those memos and in this regard he has placed reliance on Jehangir vs. The State (2002 SCMR 198-6).
Learned counsel further contends that the ocular account in this case is not in line with the medical evidence as all the wounds Of entry have blackening and tattooing while as per site-plan (Exh.DC), the distance between the deceased and the accused persons was about ten to 12 feet respectively. According to the learned counsel, size of injuries suggests that in fact one fire-arm was used in the incident; that both the eye-witnesses of the case are chance witnesses as (they have no land in the village where the occurrence took place; that they have admitted their enmity with the appellants side; that the witnesses have made dishonest improvements because PW-13 Zafar Iqbal, in his statement before the Court, has stated that when the deceased fell down on the ground it was Asghar appellant who fired two shots which hit him on the thigh and leg; that he was duly confronted with his statement recorded under Section 161 Cr.P.C. wherein he has stated that when the deceased fell on the ground, appellant Asghar and his acquitted co-accused Basit @ Basoo both fired at him; that both these witnesses have contradicted each other because as per PW-12 Munawar Hussain (complainant), he came to the dera alone and thereafter was joined by PW-13 Zafar Iqbal whereas the said PW-13 has stated that he alongwith his father went to the dera together; that PW-12 Munawar Hussain (complainant) has stated that none was carrying any milk pot when they were going from their dera whereas PW-13 Zafar Iqbal has stated that he was having a milk pot in his hand, so, these discrepancies have made the prosecution story doubtful.
Learned counsel has vehemently argued that recovery of pistol allegedly recovered at the instance of appellant Asghar Ali is of no avail to the prosecution as report of the Forensic Science Laboratory, is negative.
While advancing his submissions learned counsel contends that as far as Muhammad Akbar @ Akbari appellant is concerned, no overt act has been attributed to him except a joint Lalkara; that in the circumstances it cannot be held that he shared the common intention with his co-appellant Asghar; that there are material contradictions in the statements of the witnesses especially that they failed to show their presence at the spot, therefore, in such like cases, independent corroboration is required which is very much lacking in this case.
While concluding his submissions learned counsel submits that as the prosecution has failed to prove its case against the appellants beyond any shadow of doubt, therefore, benefit of doubt be extended to the appellants and that, in the afore-referred circumstances, appellants is entitled to acquittal.
At the end, learned counsel submits that if this Court is not convinced with the argument of acquittal qua Asghar Ali appellant then it is not a case of capital sentence because mitigating circumstances are available in the case i,e, improvements in the statements of the witnesses, negative report of the FSL, medical evidence is not exactly in line with the ocular account, motive part stands not fully proved, the accused who was attributed an injury on the abdomen of the deceased has been acquitted. In this regard he has placed reliance on Muhammad Yaqoob vs. The State (2008 SCMR 1082) and Israr Ali vs. The State (2007 SCMR 525).
6. On the other hand, the learned Additional Prosecutor General for the State contends that that Asghar Ali appellant is named in the FIR with a specific role; that the natural eye-witness was furnished by the prosecution and despite cross-examination the defence could shake nothing from their 'testimony; that the PW-s had no enmity with the said appellant to falsely depose against him during the trial; that, even otherwise, in such like cases substitution is a rare phenomenon; that the prosecution has proved its case against Asghar Ali appellant beyond any shadow of doubt; that no question regarding delayed registration of the FIR was put to the complainant; that there was no delay in conducting post-mortem examination on the body of deceased as it is very common that during the night time, the doctors normally do not conduct the post-mortem examinations and that the conviction and sentence awarded to the said appellant by the learned trial Court be maintained.
Learned counsel for the complainant adds that Asghar Ali appellant has caused repeated fire-arm injuries on the body of the deceased; that the role attributed to the said appellant finds support from the medical evidence; that case of acquitted co-accused Basit @ Basoo is not helpful to the present appellant in view of Section 309(4) PPC and that the sentence of the appellants be maintained. He has placed reliance on Farman Ali and others vs. The State and others (PLD 2007 Lahore 495).
So far as case of Muhammad Akbar @ Akbari appellant is concerned, the learned APG has frankly stated that no overt act is attributed to him, therefore, his case is distinguishable from the case of Asghar Ali appellant.
7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.
8. Occurrence in this case took place on 2.12.2002 at about 4.40 p.m., the matter was reported to the police by PW-12 Munawar Hussain (complainant) at 5.50 p.m. at Pul Saim Shoori Chatha, the formal FIR was registered on the same day at about 6.15 p.m. while the distance between the place of occurrence and the Police Station was about six miles. We have noted that the FIR in this case was lodged within one hour ten minutes after the occurrence, therefore, contention of the learned counsel for the appellant qua delayed registration of the FIR, has no force because no suggestion was put to PW-12 Munawar Hussain (complainant) that it was not registered at the time claimed by him.
9. The ocular account in this case was furnished by PW-12 Munawar Hussain (complainant) who is real father of the deceased Azhar Iqbal and PW-13 Zafar Iqbal who is real brother of the said deceased and real son of the complainant while the medical evidence was furnished by PW-10 Dr. Capt. Khalid Farooq who conducted postmortem examination on the dead body of deceased.
10.First of all we would like to take up the case of Asghar Ali appellant who has been sentenced to death.
11.As far as contention of the learned counsel for the appellants that both the eye-witnesses are chance witnesses, we have noted that no suggestion was put to these PW-s that they were not having any dera in the village where the occurrence took place. The only suggestion put to PW-12 Munawar Hussain (complainant) was that he was not having any land in the said village which does not mean that he was not residing in the said village. Moreover, all the important and material aspects of the case have duly been mentioned in the FIR which are suggestive of the fact that this witness was present at the spot and witnessed the occurrence as he has reasonably explained his presence at the spot. During the cross-examination, he remained consistent on all material particulars of the case. Even otherwise, substitution in such like cases, on the part of a real father is a rare phenomenon. Apart from this PW-, PW-13 Zafar Iqbal has appeared to corroborate the statement; of PW-12. Although he is also closely related to the deceased i,e, real brother, but his statement inspires confidence to the extent of Asghar Ali appellant. Both these PW-s have no enmity to falsely depose against Asghar Ali Appellant so, we hold that both of them were present at the spot and witnessed the occurrence. It is settled law that it is the quality of the evidence and not the quantity which weighs with the Court and conviction can be maintained on the basis of testimony of an interested witness if the same inspires confidence. We have fortified our view by a judgment of the August Supreme Court of Pakistan reported in the case of Farooq Khan vs. The State (2008 SCMR 917), wherein, at Page 921, it has been held as under :-- "11. There is a rule that the statement of an interested witness can be taken into consideration for corroboration and mere relationship with the deceased is not 'sufficient' to discredit the witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of interested witness are set out in Nazir v. The State (PLD 1962 SC 269) and Shehruddin v., Allhaj Rakhio (1989 SCMR 1461) "(emphasis supplied)
12.The next contention of the learned counsel for, the appellants that the ocular account in this case is not exactly in line with the medical evidence has no force because in the FIR the allegation is that four shots were fired which hit on the different parts of the body of the deceased. The said injuries are duly reflected in the post-mortem examination of the dead body of the deceased conducted by PW-10 Dr. Capt. Khalid 'Farooq who has noted four fire-arm injuries and one swelling, so, the ocular account in this case is almost in line with the medical evidence furnished by the Doctor. The report of the Forensic Science Laboratory is negative qua the recovery affected from the said appellant therefore, if the evidence of recovery is excluded from the prosecution evidence even then there is sufficient material on the record to maintain conviction of this appellant.
Therefore, the conviction of the appellant Asghar Ali under Section 302(b) PPC is hereby maintained.
13.However, in the peculiar facts and circumstances of the case, we have noted that it is not a case of capital sentence because there are certain improvements in the statement of PW-13 Zafar Iqbal, who, in the examination-in-chief, has stated that Asghar Ali appellant fired 'a shot with .30 bore pistol which hit his brother Azhar Iqbal deceased on the front of his abdomen and Basit Ca Basoo (acquitted co-accused) fired second shot which landed on his abdomen. He has further stated (in the examination-in-chief) that due to these fire shots, his brother fell down and thereafter Asghar Ali appellant fired two pistol shots which hit the deceased on the upper part of his left knee and right shin. Whereas, in his statement; recorded by the police under Section 161 Cr.P.C. (Exh.DB), he stated that Asghar Ali (appellant) and Basit @Basoo (acquitted co-accused) both fired at the deceased when he fell on the ground. He was duly confronted with his previous statement.
14. Apart from above, we have also noted that Basit @ Basoo (acquitted co-accused) was attributed a fire-arm injury on the abdomen of the deceased but he was acquitted by the learned trial Court on the basis of compromise between both the parties as legal heirs of the deceased had pardoned him. Asghar Ali appellant was attributed three fire-arm injuries including an injury on the abdomen of the deceased while two other fire-arm injuries are attributed to him on the left knee and right shin of the deceased. Perusal of the post-mortem examination report shows that both the injuries are available on the abdomen i,e, Injuries No, 1 and 2 which, according to the doctor, proved fatal. It is not sure as to which injury was caused by Asghar Ali appellant. In Muhammad Yaqoob vs. The State (2008 SCMR 1082), at Page 1086, the Hon'ble Supreme Court of Pakistan held as under:-- "10. While considering the question of sentence, we feel that as it is not certain from the evidence on record that it was the shot of the appellant which resulted in the death of Asghar Nadeem, deceased, it constitutes a mitigating or extenuating circumstance justifying lesser punishment, as held by this Court in cases of Allah Dad and another v. The State (1995 SCMR 142) and Saeed and others v. The State (1984 SCMR 1069)......
In the case of Israr Ali vs. The State (2007 SCMR 525), at Page 532, has been held as under:-- "6. The provision of law on the subject holding the field is Section 302 PPC'as amended by the relevant Qisas and Diyat Ordinance which is effective as law laid down by this Court in the case of Federation of Pakistan vs. NWFP and another (PLD 1990 SC 1172). It is better and appropriate to reproduce Section 302 of PPC to resolve the controversy :-- "302. Punishment of Qatl-i-Amd.--Whoever commits Qatl-iAmd shall, subject to the provisions of this Chapter be:-- (a)punished with death as Qisas; (b)punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or (c)punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable: "[Provided that nothing in this clause shall apply to the offence of Qatl-i-Amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be]"
7. In the case in hand clause (b) is applicable. Mere reading the said provision provides the following punishments:-- (i)Punishment with death; or (ii)imprisonment for life as Tazir.
8. It is pertinent to mention here that this provision does not spell out the circumstances in which either of the two punishments is to be awarded and as such it has been left for the Superior Courts to lay down guidelines for awarding either of the punishment. Un-amended Section 302, PPC shows that a Judge is not required to give reasons for imposing death sentence for murder as that was considered to be the proper sentence for murder but if he imposed a lesser punishment he was required give reasons for it as law laid down by this Court in Piran Ditta's case (PLD 1976 SC 300).
Now after the said amendment in Section 302, PPC will be little different as a Judge while awarding either of the two sentences will have to give reasons meaning thereby the learned Judge has to award the death penalty or life imprisonment after judicial application of mind with reasons. The purpose and object of the amendment is based on the principles of Islamic Criminal Law introduced and enforced through Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance, VII of 1990) promulgated from time to time since 1990 in view of Section 338-F of PPC as in Islam except for, just cause and reason, a life cannot be taken 'away or in other words put to an end".
15.In this view of the matter, while maintaining sentence of Asghar Ali appellant under Section 302(b) PPC, his sentence of death is converted into imprisonment for life with benefit of Section 382-B Cr.P.C. while the amount of compensation awarded by the learned trial Court and the imprisonment in default thereof shall remain intact.
16. So far as case of Muhammad Akbar C Akbari appellant is concerned, we have noted that no specific overt act is attributed to, him except that he alongwith his two co-accused raised joint Lalkara so, in our view provisions of Section 34 PPC to his extent are not attracted in the peculiar facts and circumstances of the case. It is very common in our society that alongwith the actual culprits, innocent persons are also involved. He is the real brother of Asghar Ali appellant, therefore, his false implication in this case cannot be ruled out. In our considered view the case to his extent has become of doubtful nature. It is settled by the Apex Court of the country that in case of doubt, its benefit must go to the accused not as a matter of grace but of right. The same proposition came up for consideration in the case reported as Muhammad Akram us. The Slate (2009 SCMR 230), wherein, at Page 236, the Hon'ble Supreme Court of Pakistan, held as under: "13. The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right", (emphasis supplied)
17.In this view of the matter, while extending benefit of doubt to Muhammad Akbar Akbari appellant, this appeal is partly allowed to his extent, the impugned judgment is set-aside and he is acquitted from the charge levelled against him. He is on bail and shall be discharged of his surety/bail bonds.
18.This appeal stands disposed of in the above noted terms while Criminal Revision No, 980/04 (Munawar Hussain vs. The State) is dismissed for the above reasons.
Murder Reference is answered in the Negative and sentence of death is Not Confirmed.