JUDGMENT MANZOOR AHMAD MALIK, J.--This judgment shall' dispose of Criminal Appeal No. 1990 of 2004 (Azhar Hassan alias Mehdi v. The State) and Murder Reference No.892 of 2004, sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to the appellant, as both these matters have arisen out of the same judgment dated 30-11-2004 passed by the learned. Additional Sessions Judge, Hafizabad, whereby, appellant was convicted under section 302(b), P.P.C., for the murder of Mst.Asia Bibi (deceased), and sentenced to death as Tazir with a further direction to pay a compensation of Rs.1,00.000 (Rupees one lac only) to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. In default whereof to further undergo S.-I. For six months. However, benefit of doubt was extended to three co-accused of the appellant, namely, Muhammad Iqbal, Muhammad Sadiq and Mst.Irshad Bibi and they were acquitted from the charge, while, appellant's fourth co-accused, namely, Ali Ahmad, earned acquittal as a result of compromise between the parties.
2. Brief facts of the case, as given by P.W.4 Muhammad Zafar (complainant) in the Private Complaint (Exh.P-I) are that he had three sons and two daughters and gave the hand of his elder daughter Mst.Asia Bibi (deceased) to Muhammad Zubair and the marriage had to take place on 3- 1-2004. His real brother Azhar Hasan alias Mehdi (appellant), were of the said Azhar Hasan, namely, Mst.Irshad Bibi and other accused were not happy on this marriage as they demanded the hand of Mst.Asia Bibi (deceased). On 2-1-2004, a number of guests had come to the complainant's house in connection with the marriage of his daughter while the complainant along with his son Mustansar Iqbal, Nasar Ali (his brother) and Sajid Ali were busy in attending the guests. At about 5- 00 p.m., Azhar Hasan alias Mehdi (appellant), Ali Ahmad, Muhammad Sadiq and Muhammad Iqbal, all armed with .30 bore pistols, along with Mst. Irshad Bibi came there. Mst. Irshad Bibi raised a Lalkara that Mst. Asia Bibi (deceased) be taught a lesson of her marriage, upon which, Azhar Hasan alias Mehdi (appellant) fired with his pistol which hit Mst. Asia Bibi (deceased), on her forehead on the left side. Then Ali Ahmad fired which hit on the front of her neck. Muhammad Sadiq fired a shot which stamped on the front of her neck while Iqbal's fire hit on her chin. According to the complainant, upon the hue and cry raised by them; the accused ran away from the spot while Mst.Asia Bibi (deceased) breathed her last at the spot. As per complainant, he lodged F.I.R.
(Exh.PF/1) qua the said murder but being dissatisfied with the tenor of investigation by the police, he filed the Private Complaint (Exh.PI).
3. During the course of investigation, appellant's four co-accused were declared innocent.
However, on the Private Complaint (Exh.PL) filed by the complainant against the appellant and his four acquitted co-accused, all were summoned to face the trial, charge was framed against them, to which, they pleaded not guilty and claimed trial.
4. In order to. Prove the ocular account, the prosecution produced as many as 6 witnesses during the trial. The appellant, along with his four acquitted co-accused, were examined under section 342, Cr.P.C. They neither produced any evidence in defence nor opted to depose on Oath as .Required under section 340(2), Cr.P.C. Muhammad Shafique appeared as CW-1, Muhammad Aslam as CW-2, Masood Ahmad Bhatti as CW-3 and Muhammad Zafar Shah as CW-4. In an answer to the question "why this case against you and why the P.Ws. Have deposed against you", the appellant, in his statement recorded under section 342, Cr.P.C., stated as under:-- "Nizam and Arshad cousins of Zubair injured Nasar my brother in 1999 and F.I.R. No.372/99 under sections 324/34/337-F3, P.P.C. Was lodged against Nizam and Arshad on the application of Nasar Ali at Police Station Saddar Hafizabad. Due to this occurrence our whale family was against the family of said Zubair. "My brother Muhammad Zafar and his were in spite of my opposition they arranged engagement of Asia Bibi d/o Muhammad Zafar with Zubair and marriage was going to be solemnized on 3-1-2004. I requested my brother Muhammad Zubair and his were not to give the hand of Asia Bibi in the family of Muhammad Zubair and asked to give hand of Asia to any one out of the family of Zubair. I did not participate in the engagement ceremony of Asia Bibi with Zubair.
My co-villagers and members of family of Zubair taunted me that they had got the hand of Asia Bibi despite his resistance. I requested my other brothers and family members to enforce the complainant Muhammad Zafar and his were to denounce the marriage of Asia Bibi with Zubair. I also requested on the day of occurrence to my brother Muhammad Zafar and his were to denounce the marriage of Asia Bibi with Zubair, but they refused and asked me that they would mary Asia Bibi with Zubair at any cost. I also requested my niece Asia Bibi that she herself denounce the marriage with Zubair because family members of Zubair and other co-villagers taunted me but she flatly refused and disgraced me. I flared up at once and fired at Asia Bibi. In sudden and grave provocation which hit Asia Bibi who succumbed to the injuries at the spot. My co-accused Sadiq Ali, Irshad Bibi, Iqbal and Ali Ahmad were not present at the time of occurrence at the place of occurrence. Irshad Bibi had gone to Peer Khana at Nankana Sahib before the occurrence. My brother-in-law Muhammad Iqbal and uncle of my were Sadiq had gone to purchase buffalo from Channi Churara and they were involved falsely being my close relative. I had all alone committed this murder due to grave and sudden provocation and voluntarily appeared before the police and stated all about the occurrence. But police in connivance with complainant party distorted the real facts of this case and falsely involved my co-accused. Private P.Ws. Of this case are closely related and they are inimical towards me that's why they deposed falsely against me and my co-accused. During the course of investigation my this plea was verified by the police and was found-correct".
However, after conclusion of the trial the learned trial Court convicted and sentenced the appellant as mentioned above.
5. Learned counsel for the appellant, in support of this appeal, contends that the ocular account in this case is belied by the medical evidence as, according to the F.I.R. (Exh.PF/I), Azhar Hasan alias Mehdi (appellant) was attributed two firearm injuries i.e. One on the forehead and other on the back of chest of the deceased, whereas, as per medical evidence i.e. Postmortem report (Exh.PA) there is no injury on the back of Mst. Asia Bibi (deceased); that as per F.I.R., Iqbal acquitted co- accused of the appellant, was attributed an injury on the top of the hip of Mst. Asia Bibi (deceased), whereas, as per her medical report, there is no such injury on her person, that in the Private Complaint, role of the said Iqbal was changed and he was attributed a specific injury (Injury No.4) on the chin of Mst. Asia Bibi (deceased) but he has been acquitted by the learned trial Court; that, as per Site Plan (Exh.PJ/1), the appellant fired at the deceased from a distance of three feet but there is no blackening or tattooing around the wounds. In this respect, he places reliance on Ghulam Rasool v. State (1998 M LD 1366).
Learned counsel further contends that .30 bore pistol (P5) has allegedly been recovered from the appellant which was taken into possession through memo. Exh. PH but the said recovery is of no avail to the prosecution as no crime empty was recovered from the spot and report of the Forensic Science Laboratory, to the effect that the said pistol was in the working order, is also of no use to the prosecution; that although specific firearm injuries were attributed to Muhammad Iqbal and Muhammad Sadiq, acquitted co-accused of the appellant, but both of them have been acquitted by the learned trial Court therefore, independent corroboration is required for maintaining conviction of the appellant; that the appellant took a specific plea before the learned trial Court to the effect that he killed Mst. Asia Bibi (deceased) in a sudden flare up and the learned trial Court has solely relied on his said plea for the conviction of the appellant which is against the law as statement of the accused made under section 342, Cr.P.C. Is to be accepted in its totality. He has placed reliance on Waqar Ahmad v. Shaukat Ali and others (2006 SCM R 1139). Adds that as the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, he is entitled to acquittal.
Learned counsel lastly contends that if this Court is not persuaded with the argument of acquittal of the appellant then at least it is not a case of capital sentence for the reasons that there is a conflict between the ocular account and the medical evidence; that on the same set of evidence three co-accused of the appellant have already been acquitted by the learned trial Court while one co-accused earned acquittal on the basis of compromise, and no appeal either by the State or the complainant has been filed against their acquittal; that it is not certain as to who caused the fatal injury on the person of the deceased because as per opinion of the doctor, Injuries Nos. 1 to 3 are collectively sufficient to cause death of the deceased and that as no crime empty was recovered from the spot, so, recovery of pistol and in this regard report of the Forensic Science Laboratory are of no avail to the prosecution.
6. On the other hand, the learned Deputy Prosecutor-General for the State assisted 'by the learned counsel for the complainant while vehemently opposing this appeal, contends that the prosecution case against the appellant remained consistent in the F.I.R. And in the Private Complaint as far as Injury No.3 is concerned; that the motive is attributed to the appellant that the presence of the eye-witnesses at the spot is very natural; that the eye-witnesses are closely related to the appellant having no enmity with him to falsely depose against him; that the case of the acquitted co-accused of the appellant is distinguishable; that the natural eye-witness account has been furnished by the prosecution which inspires confidence and despite cross-examination the defence could shake nothing from the testimony of the witnesses; that the prosecution case, to the extent of the appellant, is fully proved against him beyond any shadow of doubt; that there is no mitigation in this case; that even otherwise, in such like cases substitution is a rare phenomenon and that the appeal filed by the appellant against his conviction and sentence be dismissed.
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 their able assistance.
8. Occurrence in this case took place on 2-1-2004 at 5-00 p.m., the matter was reported to the police by P.W.4 Muhammad Zafar (complainant) through "Fard Bayan" (Exh.PF) at 6-30 p.m. At "Kot Mian", the formal F.I.R. (Exh.PF/1) was registered on the same day at 7-5 p.m. While the distance between the place of occurrence and the Police Station was about 7 miles. The postmortem examination of Mst. Asia Bibi (deceased) was also conducted on the same day within 07 hours of the occurrence. All these circumstances suggest that the F.I.R. Was lodged promptly.
9. The prosecution, in order to prove the ocular account has produced P.W.4. Muhammad Zafar (complainant). He is the real father of Mst. Asia Bibi (deceased) while real brother of Azhar Hasan alias Mehdi (appellant). He has no enmity with the appellant to falsely depose against his real brother. The occurrence took place in the house of the complainant, therefore, his presence in his house at the time of occurrence is quite natural. Notwithstanding the fact that he was subjected to cross-examination but the defence failed to shake anything from his testimony. Even otherwise, it is repellent to common sense that for the murder of his real daughter, he would falsely involve his real brother. P.W.5 Mustansar Iqbal is another eyewitness of the occurrence. He is real brother of Mst.Asia Bibi (deceased), real son of P.W.4. Muhammad Zafar (complainant) and real Bhateeja of the appellant. Being inmate of the house, his testimony also inspires confidence. Statements of both these witnesses are corroborative to each other. Both are consistent on all material particulars so far as role assigned to the appellant is concerned. Both these eye-witnesses are closely related to the deceased. It is settled law that merely on the basis of close relationship of a witness with the deceased, his testimony cannot be discarded if the same inspires confidence.
10. In the F.I.R., specific injuries are attributed to the appellant. We have also perused the contents of the F.I.R. And the Private Complaint. Although there are discrepancies in the F.I.R. And the Private Complaint regarding attribution and seat of injuries to the appellant and his acquitted co-accused but the fact remains that as far as appellant is concerned, the prosecution story remains consistent in the F.I.R. And the Private Complaint qua Injury No.3 which is on the forehead of the deceased and which has specifically been attributed to the appellant. Even otherwise, it is evident from the trend of cross-examination that the appellant has admitted this occurrence. In his statement recorded under section 342, Cr.P.C., the appellant has admitted that "I flared up at once and fired at Asia Bibi in sudden and grave provocation which hit Asia Bibi who succumbed to the injuries at the spot". The question of taking into consideration the incriminating part of the statement of accused made under section 342, Cr.P.C. And its impact in a case wherein the prosecution evidence was relied upon, came up for consideration before the Hon'ble Supreme Court of Pakistan in Abdul Kareem v. The State (2010 SCM R 589), wherein, at page 593, the learned Apex Court has been pleased to observe as under:-- "(7) The appellant admitted the time and place of the incident. He also admitted causing, fire-arm injury to -the deceased but took the plea that it was in his self-defence. Under Article 121 of the Qanun-e-Shahadat Order, 1984 the appellant is required to prove such plea. The said Article reads as under:- `When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code (Act XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence, of such circumstances.'
8. In support of his statement under section 342, Cr.P.C. The appellant did not lead any evidence to prove his assertion, even from the cross-examination he was unable to prove such plea. On the contrary, such plea, was not put to the witnesses as to obtain any admission to get some support to his plea. Thus the Court is required to presume that such plea was not in existence. The entire statement of the appellant could have been accepted if there would have been no evidence of the prosecution to support the case but when the prosecution evidence is relied upon then incriminating; part of the statement of the accused can be taken into consideration. Thus the case of the prosecution is proved against the appellant." (emphasis and underlining has been supplied)
11. As far as recovery of .30 bore pistol (P5), at the instance of the appellant, which was taken into possession through memo Exh.PH, is concerned, we have noted that no crime empty was taken into possession from the spot, therefore, report of the Forensic Science Laboratory to the effect that the pistol in question was in the working condition, cannot be considered as a corroborative piece of evidence.
12. The medical evidence in this case was furnished by P.W.1 Dr. Zakia Arshad, who conducted postmortem examination on the body of Mst.Asia Bibi (deceased). She, as per Postmortem Report (Exh.PA), noted following four injuries on her person:-- "(1) Fire-arm wound of entry 3/4 cm x 3 cm on front of right side of chest near midline just below the base of neck. Edges were inverted. Margins were tattooed. Wound of exit 3/4 cm x 1 cm on back of left of abdomen just near the left breast back 6 cm toward left from midline. Edges were averted.
(2) Fire-arm wound of entry 3/4 x 3/4 cm into DNP on front of left side of chest. Upper most part below the base of neck near midline of front. Fire-arm wound of exit 1 cm x 1 cm on the back of left side of chest near midline on back 1/3. Edges were averted.
(3) Fire-arm wound of entry 1-1/2 cm x DNP on forehead left side 2 cm above left eye-brew. Edges were inverted and tattooed. Firearm wound of exit through left ear auditor canal. Edges were averted.
(4) Fire-arm lacerated wound 1-1/2 cm x 1/2 cm x skin deep. Edges were irregular on let side of chin".
The allegation against the appellant, both in the F.I.R. And the Private Complaint, was that he fired a shot with .30 bore pistol which hit on the left side of forehead of the deceased and we have noted that the said injury exists on the body of Mst.Asia Bibi (deceased) as Injury No.3, so, the ocular account in this case finds support from the medical evidence qua the appellant.
13. We have also noted that the appellant has taken a specific plea his statement recorded under section 342, Cr.P.C. Under the law, he was required to substantiate the same but in this case, he has not produced any person in support of his said plea, rather, he has not made statement on Oath as required under section 340(2), Cr.P.C. Which means that he has failed to substantiate his version as mandated under the law.
14. In the afore-referred circumstance of the case, we are of the considered view that the prosecution has proved its case against the appellant beyond any shadow of doubt to maintain conviction of the appellant under section 302(b), P.P.C. The precedent case-law relied upon by the learned counsel for the appellant is distinguishable and is not applicable in this case because every criminal case is decided on the basis of its on peculiar facts and circumstances.
15. However, we have noted that there are certain extenuating circumstances which suggest that it is not a case of capital sentence, firstly, in the F.I.R. And the Private Complaint, apart from the appellant, four other co-accused of the appellant were also nominated, out of whom, three, namely, Ali Ahmad, Iqbal and Sadiq were attributed fire-arm injuries on the person of the deceased while Mst. Irshad Bibi was attributed a Lalkara, amongst whom, Muhammad Iqbal, Muhammad Sadiq and Mst. Irshad Bibi were acquitted after having given them benefit of doubt but no appeal against their acquittal has been filed either by the complainant or the State, while, Ali Ahmad earned acquittal as a result of compromise with the legal heirs of the deceased, and, secondly, qua recovery of .30 bore pistol (P5), which was taken into possession through memo. (Exh.PH), report of the Forensic Science Laboratory (Exh.PM), to the effect that the same was in working condition, cannot be considered as a corroborative piece of evidence as no crime empty was taken into possession from the spot. Apart from above, the question of discretion in awarding sentence to the accused as Tazir in a case of "Qatl-e-Amd" came up for consideration before the August Supreme Court of Pakistan in the case of Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111). In the said judgment, at page 119. The learned Apex Court has been pleased to hold as under:-- ............. The difference of punishment for Qatl-e-Amd as qisas and tazir provided under sections 302(a) and 302(b), P.P.C. Respectively is that in a case of qisas, Court has no discretion in the matter of sentence whereas in case of tazir Court may award either of the. Sentence provided under section 302(b), P.P.C. And exercise of this direction in the case of sentence of Tazir would depend upon the facts ,and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-e-Amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Glillani Muretaza v.
State (2004 SCM R 4), Faqir Mali v. Khalil-uz-Zaman (1999 SCM R 2203), Muhammad Akram v. State (2003 SCM R 855) and Abdus Salam v. State (2000 SCM R 338)."
The above view was reiterated in another judgment of the Hon'ble Supreme Court of Pakistan reported as Sharafat Ali Khan v. The State (2010 SCM R 1205), wherein, at page 1209, the August Court was pleased to observe as under:-- "In Muhammad Riaz and another v. The State (2007 SCM R 1413) while considering the penalty for an act of commission of qatl-e-and it was observed "no doubt normal penalty for an act of commission of qatl-e-and provided under law is death, but since life imprisonment-also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule-can be applied in each and every case. Reference in the context may also be made to Iffikhar Ahmed Khan v. Asghar Khan and another(2009 SCM R 502)".
16. We are of the firth view that in the peculiar facts and circumstances of the case it is a fit case in which such discretion needs to be exercised, therefore, while maintaining conviction of the appellant under section 302(b), P.P.C., the sentence of death of the appellant is converted into imprisonment for life. The amount of compensation as ordered by the learned trial Court and imprisonment in default thereof shall remain intact. Benefit of section 382-B, Cr.P.C. Shall be extended to the appellant. This appeal is partly allowed with the above modification in the quantum of sentence.
Murder Reference is answered in the Negative and sentence of death is Not Confirmed.