JUDGMENT MANZOOR AHMAD MALIK, J.--This judgment shall dispose of Criminal Appeal No.1967 of 2004 (Iftikhar Ahmad v. The State); Criminal Appeal No.1968 of 2004 (Zulfiqar Ali and another v. The State); Criminal Revision No.510 of 2005 (Muhammad Ishaque v. Zulfiqar Ali and others) and Murder Reference No.785 of 2004 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Iftikhar Ahmad appellant, as they arise out of the same judgment dated 27-11-2004 passed by the learned Additional Sessions Judge, Narowal, whereby, appellants were convicted and sentenced as under:--
(i) Appellant Iftikhar Ahmad was convicted under section 302, P.P.C. And sentenced to death as Tazir with a further direction to pay a compensation of Rs.3,00,000 to the legal heirs of the deceased Muhammad Azam as provided under section 544-A, Cr.P.C. In default whereof to further undergo R.I. For six months.
(ii) Appellants Zulfiqar Ali and Imran alias Hafiz were convicted under section 302/34, P.P.C. Each and sentenced to imprisonment for life each with a further direction to pay a compensation of Rs.3,00,000 to the legal heirs of the deceased Muhammad Azam each as provided under section 544-A, Cr.P.C. In default whereof, to further undergo R.I. For six months each.
However, benefit of doubt was extended to Mushtaq Ahmad Bhatti co-accused of the appellants by way of acquittal from the charges levelled against him.
2. Brief facts of the case, as given by P.W.4 Muhammad Ishaque (complainant) in the F.I.R. (Exh.PB) are that on 29-11-1999 at about 9-30 a.m., a quarrel took place between Akhtar Ali (a real brother of the complainant) and Iftikhar Ahmad (appellant). According to the complainant, he along with his brothers Muhammad Azam and Muhammad Arif were going towards the Police Station for lodging the complaint at about 10-00 a.m. Regarding the said quarrel. It has been mentioned by the complainant in the F.I.R. That when they reached near the shop of Musthaq Ahmad Bhatti (acquitted co-accused) at Hussaini Chowk, Railway Road, Narowal, the said Mushtaq Ahmad Bhatti empty-handed, Iftikhar Ahmad (appellant) armed with.222 rifle, Imran alias Hafiz (appellant) armed with.30 bore pistol, Zulfiqar Ali (appellant) armed with rifle pump action, came out of the shop of Mushtaq Ahmad Bhatti and raised a Lalkara that Azam be taught a lesson for the said quarrel whereafter Iftikhar Ahmad (appellant) opened straight fire with his.222 bore rifle which landed on Muhammad Azam at his backside of the left ear and pierced across below the right eye who fell down. It has further been mentioned in the F.I.R. That the complainant tried to snatch rifle from Iftikhar Ahmad but Mushtaq Ahmad Bhatti caught hold of the complainant and they grappled with each other. The complainant also stated in the F.I.R. That Hafiz Imran (appellant) made a.30 bore pistol fire at the complainant but it hit Mushtaq Ahmad Bhatti who fell down. As per F.I.R., the complainant also alleged that Zulfiqar (appellant) continued aerial firing, the people gathered at the spot upon which the accused, except Mushtaq Ahmad Bhatti, decamped from the spot. As per F.I.R., the occurrence was witnessed by the complainant, his brother Muhammad Arif and Muhammad Zubair while Azam died on the way to hospital. However, the appellants party put their on version regarding injuries on the person of Mushtaq Ahmad Bhatti (acquitted co-accused).
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 07 witnesses during the trial. The appellants/accused were examined under section 342, Cr.P.C.. They did not opt to depose on Oath as provided under section 340(2), Cr.P.C. However, the appellants produced in their defence, DW-1 Mian Muhammad Sarwar, DW-2 Shaukat Ali Toor, DW-3 Dr.Mehfooz-ur-Rehman's and DW-4 Raja Riffat Mukhtar SP. While making his statement under section 342, Cr.P.C., in answer to question "why this case against you and why the P.Ws. Have deposed against you" Iftikhar Ahmad (appellant) stated as under:- "The case in hand is based upon concoctions and fabrications and the real facts have been suppressed by the complainant and P.Ws. As a matter of fact on 29-11-1999 at about morning time my father Mushtaq Ahmad Bhatti opened his shop of jewelry as usual and on the same day at about 10-30 a.m. Nasrin Begum, my mother, along with Surraya Begum and Muhammad Akram went to the shop of my father to take money for purchasing the medicine and then my mother Nasrin Begum was just asking for money then suddenly Muhammad Younis empty-handed, Akhtar Ali armed with pistol, Arif alias Chitta armed with rifle, Muhammad Azam deceased armed with hammer and Muhammad Ishaq armed with iron bar all sons of above said Muhammad Younis came there and assaulted upon my father in his shop with common object to commit the murder of my father Mushtaq Ahmad Bhatti and at that time Muhammad Younis raised Lalkara and asked his companion that Mushtaq Ahmad Bhatti be taught a lesson for levelling the false allegation of returning less gold by them afterwards all the assailants forcibly pulled my father Mushtaq Ahmad Bhatti from his shop and dragged him from the shop as a result of which he fell down in front of the shop, upon this Muhammad Younis raised Lalkara that Mushtaq Ahmad Bhatti be done away today. Akhtar Ali made a fire with his pistol which landed on left leg on my father Mushtaq Ahmad Bhatti. Muhammad Ishaq caused injury with his iron bar on the head of my father Mushtaq Ahmad Bhatti meanwhile my mother Nasrin Begum continued requesting them to spare my father. Surayya Begum in order to save my father stepped forward then Ishaq caused injury to her, Muhammad Azam deceased caused injuries on the head of my father with his hammer and during this occurrence Arif alias Chitta one of the companion of the assailants fired with his rifle which resulted into death of the deceased at the spot. This occurrence was witnessed by Nasrim Begum my mother, Surayya Begum, Muhammad Akram and one Imtiaz Ali. Just after the incident there was a rumour that Mushtaq Ahmad Bhatti my father had been murdered and the assailants had fled away from the spot, on hearing this rumour I being present in my house took the licensed rifle of my father and when I reached near Police Station City Narowal, a police man snatched the rifle from me and directed me to run away so that I might not be murdered. The said rifle was later on planted on me. As a matter of fact I was neither present at the spot nor participated in the occurrence but just after the incident when I came to known about the occurrence, I was rushing towards the spot in order to save my father from the aggression and assault launched upon my father by the present complainant party but I was intercepted by the police. The motive behind the assault and aggression launched by the present complainant party is that my father used to get the gold purified from Muhammad Younis etc. Complainant party of this case and one day prior to the occurrence he delivered some gold for purification to them but it was returned less in quantity than the given quantity, then my father went to the shop of the present complainant party and protested the same that the practice was against the terms of business and asked them to make the shortage good which resulted into exchange of hot words and the present complainant party said that after a short while they would make the shortage good. The present complainant party as a matter of fact had launched aggression and assaulted upon my father when he was present in his shop with the common object to commit his murder after forming an unlawful assembly. The injuries on the person of my father have maliciously been suppressed by the present complainant party which is a sufficient proof of concoction and fabrications on their parts. In other words the deceased Muhammad Azam has become pore to the aggression of his on party during the course of incident. The deceased of this case died at the spot and all the assailants fled away from the scene of occurrence and it was the police party who reached the spot first escorted the dead body to the hospital for the purpose of postmortem examination and then the complainant and the eyewitnesses were made available and they got a false F.I.R. Registered against me and my co-accused. My father was also medically examined and later on referred to Mayo Hospital, Lahore for his better treatment. I have been implicated in this case only due to being son of Mushtaq Ahmad Bhatti my co-accused. The P.Ws. Are interested with the deceased and inimical towards me and my co-accused and the rest of the P.Ws. Are police officials who were in league with complainant party".
Hafiz Muhammad Imran appellant stated as under:-- "At the time of occurrence I was taking my matric examination/ September School Test being my Urdu Paper at Government High School, Narowal. I was neither present nor I had participated in the occurrence. I have been involved being the son of Mushtaq Ahmad Bhatti co-accused".
Zulfiqar Ali appellant replied as under:-- "Neither I was present at the time of occurrence nor I had taken part in the occurrence. I had gone at that time to collect money (Aghrayee) from different customers nor I made any ineffective firing. I have been involved in this case being the son of Mushtaq Ahmad Bhatti my injured father".
5. Learned counsel for all the three appellants in both the appeals (Criminal Appeal No.1967 of 2004 filed by Iftikhar Ahmad appellant and Criminal Appeal No.1968 of 2004 filed by Zulfiqar Ali and Imran alias Hafiz appellants) contends that it is a case of two versions one set by the prosecution and the other offered by the appellants in their statements recorded under section 342, Cr.P.C.
Which was also put to the Prosecution Witnesses during course of cross-examination; that the major portion of the prosecution story has been disbelieved by the learned trial. Court because there was a charge against the appellants for launching murderous assault upon Muhammad Ishaque but the learned trial Court has acquitted the appellants from the said charge; that the prosecution story mentioned in the F.I.R. Is based on a written complaint (Exh.PB/1) submitted by P.W.4 Muhammad Ishaque (complainant) to the police officer at Civil Hospital Narowal but the very wording of the said complaint suggests that it was drafted by some Expert after deliberation and consultation; that the police station was at a distance of only 100 yards from the place of occurrence but the postmortem examination on the dead body of the deceased was conducted at about 5-00 p.m. Which suggests that the F.I.R. Was not recorded at the time, as alleged by the prosecution; that P. W.5 Dr. Mehfooz-urRehman during cross-examination has admitted that he was not provided copy of the F.I.R. Or the complaint; that version of the prosecution, as disclosed in the F.I.R., is even otherwise not probable because the reasons given by P.W.4. Muhammad Ishaque (complainant) in the F.I.R. Was that there was a quarrel between Iftikhar Ahmad (appellant) and complainant's brother Akhtar but P.W.6 Muhammad Arif has admitted during his cross- examination that the said Akhtar was not with them when they were going towards the Police Station to lodge the complaint regarding the quarrel of Iftikhar Ahmad (appellant) with the said Akhtar; that even otherwise neither in the F.I.R. Nor before the learned trial Court it has been disclosed that why the quarrel in question took place between them and as to whether the said Akhtar received any injuries on his person during the, said alleged quarrel, which has falsified the prosecution story because had there been any serious quarrel, the complainant party would not have used the route which passed in front of the shop of the appellants; that P.W.6. Muhammad Arif has admitted in cross-examination that there are alternate routes for reaching the police station; that it is not believable that the appellants would launch such an attack on Azam deceased because the quarrel was between Iftikhar Ahmad (appellant) and. Complainant's real brother Akhtar Ali; that P.W.4 Muhammad Ishaque (complainant) has made dishonest improvement before the learned trial Court by saying that earlier quarrel took place between Azam and Akhtar on the one side and Iftikhar on the other side which shows his mala fide; that even this improvement was made by P.W.6 Muhammad Arif; that the said Akhtar Ali, with whom allegedly the quarrel took place, was not produced during the trial despite the fact that he is real brother of P.W.4 Muhammad Ishaque (complainant) which shows that had he been produced he would not have supported the prosecution, therefore, adverse inference may be drawn against the prosecution in terms of Article 129(g) of the Qanun-e-Shahadat Order, 1984; that the complainant party has deliberately suppressed their role in the F.I.R. And instead it has been mentioned that the shot fired by Imran, though aimed at Ishaque, inadvertently hit Mushtaq Ahmad Bhatti who was medically examined on the same day by the same doctor who conducted postmortem examination on the body of deceased i.e. P.W.5 Dr.Mehfooz-ur-Rehman's who noticed six injuries on his person out of whom two are with firearms whereas four by blunt means meaning thereby that the injuries sustained by Mushtaq Ahmad Bhatti, acquitted co- accused of the appellants, were suppressed by the prosecution; that though there is no mention of the blunt weapon injuries sustained by him but while appearing before the Court, the eyewitnesses have stated that after receiving firearm injuries at the hands of Imran appellant, the said Mushtaq Ahmad Bhatti, acquitted co-accused of the appellants, fell on the `Thara' and received such injuries which is neither plausible nor believable; that even the prosecution story is not supported by their on evidence i.e. Site Plan (Exh.PA); that the learned trial Court, while convicting appellants Zulfiqar Ali and Imran alias Hafiz has observed that they were merely present at the spot as a source of strength with their co-accused and their presence at their on shop is natural one as the occurrence took place in front of their shop; that as far as plea of the appellants is concerned, it too contains certain infirmities but at the same time, it is for the prosecution to prove its case against the appellants beyond any shadow of doubt and the said burden does not shift on the shoulders of the defence and that even version of the appellants finds support from the prosecution evidence which has created doubt in the prosecution story, therefore, the appellants are entitled to acquittal.
While advancing his submissions learned counsel contends that as far as appellants Zulfiqar Ali and Imran alias Hafiz are concerned, their conviction cannot be maintained and they have not been attributed any overt act in the occurrence.
However, learned counsel contends that if this Court is not persuaded with the argument of acquittal of Iftikhar Ahmad (appellant) then, to his extent, it is not a' case of capital punishment for the reasons that the occurrence took place in front of the shop of the appellants; that the complainant and the other witnesses could not furnish any plausible explanation for their presence in front of the shop of the appellants as the reasons given by them that they were going to the Police Station for lodging complaint qua the quarrel which took place between Iftikhar Ahmad (appellant) and Akhtar, is belied by the fact that the said Muhammad Akhtar was not accompanying them and the injuries on the person of Mushtaq Ahmad Bhatti were not fully described rather it was stated that the fire of his son Hafiz Muhammad Imran hit him. He has placed reliance on AHMAD KHAN v. NAZIR AND 3 OTHERS (1999 SCM R 803).
6. Conversely, the learned Additional Prosecutor-General for the State assisted by the learned counsel for the complainant, while opposing both the appeals, contends that the appellants are named in the F.I.R. With specific roles which was promptly lodged; that the natural eye-witness account was furnished by the prosecution and despite cross-examination the defence could shake nothing from their testimony; that the P.Ws. Had no enmity with the appellants 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 the appellants beyond any shadow of doubt; that the ocular account in this case is corroborated by the medical evidence; that the ocular account further finds support from the recovery of gun from Iftikhar Ahmad (appellant) and positive report of the Forensic Science Laboratory; that the plea raised by the appellants in their statements recorded under section 342, Cr.P.C. Is neither plausible nor convincing and that the convictions and sentences awarded to the appellants by the learned trial Court be maintained.
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 29-11-1999 at about 10-30 a.m., the matter was reported to the police by P.W.4 Muhammad Ishaque (complainant) at Civil Hospital, Narowal, at about 11-25 a.m., the formal F.I.R.
Was registered on the same day at about 11-40 a.m. While the distance between the place of occurrence and the Police Station was about 100 yards. As the matter was reported to the Police within an hour of the occurrence, therefore, we are of the view that the F.I.R. Was lodged promptly.
9. The ocular account in this case was furnished by P.W.4 Muhammad Ishaque (complainant) and P.W.6. Muhammad Arif. Both are real brothers of Muhammad Azam deceased. The medical evidence in this case was furnished by P.W.5 Dr.Mehfooz-urRehman who conducted postmortem examination on the body of deceased Muhammad Azam. In this case, in all, four accused were tried who are Mushtaq Ahmad Bhatti (acquitted co-accused of the appellants), Iftikhar Ahmad (appellant), Zulfiqar Ali (appellant) and Imran alias Hafiz (appellant).
10. Admittedly, it is a case of two versions one put forth by the prosecution and the other offered by the appellants in their statements recorded under section 342, Cr.P.C.
11. First of all we would like to take up the motive part 'of the prosecution case which is to the effect that on the fateful day and time when the complainant along with his brothers Muhammad Azam and Muhammad Arif were going towards the Police Station to lodge a complaint regarding the quarrel, which allegedly took place between Iftikhar Ahmad (appellant) and complainant's real brother Akhtar and when they reached in front of the shop of Mushtaq Ahmad Bhatti (acquitted co-accused, of the appellants), they were attacked by the accused party. But, we have noted that surprisingly the said Akhtar was not accompanying them which factum has been admitted by P.W.6 Muhammad Arif in his cross-examination, therefore, it does not appeal to common sense that the person, qua whose quarrel, report was going to be lodged at the Police Station, would not accompany them while going to the Police Station for the said purpose coupled with the fact that even no detail was mentioned as to why the quarrel in question took place and as to whether the said Akhtar did receive any injuries on his person and Akhtar Ali did not appear before the learned trial Court, so, this motive part of the prosecution's story is not believable.
12. As per prosecution case, Imran alias Hafiz (appellant) alleged to have fired a.30 bore pistol shot at P.W.4. Muhammad Ishaque (complainant) which accidentally, according to the prosecution case, hit at his on father (Mushtaq Ahmad Bhatti acquitted co-accused) but perusal of the medical examination conducted by DW-3 Dr.Mehfooz-ur-Rehman's shows that there are six injuries on the person of Mushtaq Ahmad Bhatti out of whom two art firearms while the remaining with blunt means but these injuries have not been explained by the complainant side either in the F.I.R.
Or before the Court. Moreover, as per F.I.R., the story was that a quarrel took place between Iftikhar Ahmad (appellant) and Akhtar but while appearing before the Court, the story was changed to the extent that Azam was also present at the time of first incident, therefore, the prosecution story is not a whole truth.
13. The version offered by the defence was that the complainant party, while armed with deadly weapons, came in front of their shop and started the quarrel which took place because of some dispute regarding purification of gold but the defence plea is also not believable because as per their version two women were also present but none of them was produced before the Court coupled with the fact that even their further version that the fire of Arif alias Chitta hit Azam deceased has not been established.
14. In this backdrop of the situation, we hold that both the parties have not approached the Court with clean hands and have tried to suppress their on role and to highlight the role of the other side.
In such a situation, the Court cannot be deterred by the incompleteness of the tale from drawing the inference that properly flow from the evidence and circumstances of the case. In this regard reliance is placed on SYED ALI BEOPARI V. NIBARAN MOLLAH AND OTHERS (PLD 1962 Supreme Court 502), wherein, at page 507, the Hon'ble Supreme Court of Pakistan has been pleased to observe as under:-- "Here we may observe that in a case of this type the parties do not generally come out with the true story. It is a normal incident of an 'adversary proceeding' to minimize one's on part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inference that properly flow from the evidence and circumstances........ From the circumstances available on the record, it can easily be gathered that it was a case of sudden free fight, therefore, each accused would be responsible for his on act. In this regard reliance is placed on MANZOOR MASH! V. THE STATE (PLD 1995 Supreme Court 307), wherein, at page 313, it was observed as under:-- "Facts and circumstances of this case as discussed above clearly indicate that both parties on seeing each other indulged in sudden free fight and had not come out with the true facts as to how and in what manner the occurrence had commenced. High Court has rightly assessed the evidence brought on the record. In such A circumstances, it would be right to say that in such free fight each participant would be liable for his individual act. On this point it would be advantageous to make reference to the case of Abdul Rehman's v. Gadai Khan and 3 others (1972 SCM R 676) in which it is held that when parties are hostile to each other and it is impossible to say that accused party were acting in the defence or in exercise of right of private defence of person or property, then no question of right of private defence would arise and each participant in the free fight would be liable in his individual act........... ".
15. As far as case of Zulfiqar Ali (appellant) and Imran alias Hafiz (appellant) is concerned, we have noted that the only role of aerial firing is attributed to them but surprisingly no crime empty was recovered from the spot. Moreso, no charge was framed against Imran alias Hafiz (appellant) qua the injury on the person of his on father Mushtaq Ahmad Bhatti coupled with the fact that for the injuries on the person of said Mushtaq, the complainant party of the instant case, was convicted and sentenced, therefore, we are of the considered view that their false implication in the case, being real brothers of Iftikhar Ahmad (appellant), cannot be ruled out and both of them are entitled to the benefit of doubt. Therefore, Criminal Appeal No.1968 of 2004 (Zulfiqar Ali and another v. The State) filed by Zulfiqar Ali and Imran alias Hafiz appellants is accepted, the conviction and sentence awarded to them is set aside and they are acquitted of the charges levelled against them. They are on bail and shall be discharged of their bail/surety bonds.
16. As far as case of Iftikhar Ahmad (appellant) is concerned, he was attributed a firearm injury on the back of right ear on the head which pierced below the right eye of Muhammad Azam deceased which proved fatal and he died as a result thereof. Both the eye- witnesses of the case, namely, P.W.4. Muhammad Ishaque (complainant) and P.W.6. Muhammad Arif have furnished the ocular account qua him which inspires confidence to his extent. Although B they are real brothers of the deceased Azam but merely on account of their close relationship with the deceased, it cannot be said that they are not the truthful witnesses of the occurrence.
Their statements corroborate each other on material aspects of the case. 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 V. THE STATE (2008 SCM R 917), wherein, at page 921, it has been held as under:-- D E
17.
18. "11. There is a rule that the
19. Statement of an interested witness
20. C can be taken into consideration for
21. 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 22. Rakha (1989 SCM R 1461) " (emphasis supplied)
23. Apart from above, the ocular account F furnished by these two witnesses finds
24. Support from the medical evidence furnished by P.W.5. Dr. Mehfooz-urRehman who conducted postmortem examination on the body of deceased and noted two injuries which are as under:-: "(1) A circular wound 5 mm x 5 mm on left side of the head about 7 cm below and above the left ear.
(2) Irregular wound 5 x 3 cm just below the right eye lid extending towards the cheek".
According to the opinion of the doctor, Injuries Nos.1 and 2 are entry and exit wounds respectively, so, it can be said that the ocular account in this case is in line with the medical evidence.
17. As far as recovery of.222 rifle (P4) along with ten live bullets (P6/1-10) and an empty (P5) which were taken into possession through recovery Memo Exh.PE, is concerned, it is of no avail to the prosecution for the reasons that this recovery was effected from the shop of Iftikhar appellant which does not appeal to common sense, firstly, because it is highly improbable that the appellant would keep the gun in the shop in front of which the occurrence took place, secondly, one empty and ten live bullets were recovered from the chamber of the said rifle, whereas, as per P.W.7 Manzoor Ahmad Inspector, "the rifle which was -recovered was of the kind which would eject the empty after firing", so, the question arises as to how this empty was in the Chamber of the said rifle when the allegation was that the rifle was used and the shot was fired from it which hit Muhammad Azam deceased. As per report of the Forensic Science Laboratory, the said rifle was received in the Laboratory from Abdul Hafeez, Constable No.278-C who appeared before the Court as P.W.1 but he has not stated anything about the taking of the said rifle to the Forensic Science Laboratory, therefore, it cannot be said that it was safely sent to the Forensic Science Laboratory: However, if this piece of evidence is excluded from the prosecution evidence, even then there is sufficient material on the record against the appellant Iftikhar Ahmad in the form of ocular account and the medical evidence.
18. 19. #tbs
20. G
21. H
22. #the
23. In view of what has been discussed above, we are of the affirmed view that the prosecution has proved its case against Iftikhar Ahmad (appellant) beyond any shadow of doubt to maintain conviction on the charge of murder of Muhammad Azam deceased.
24. However, we have noted that the learned trial Court has convicted the appellant under section 302, P.P.C. And omitted to mention either sections 302(a) or 302(b), P.P.C. And certainly it is not a case under section 302(a), P.P.C. And would fall within the ambit of section 302(b), P.P.C., therefore, appellant's conviction under section 302(b), P.P.C. Is hereby maintained as Tazir.
25. So far as quantum of sentence of the appellant is concerned, we have noted that it is not a case of capital sentence for the reasons that exact provision of law has not been mentioned by the learned trial Court while convicting the appellant, the appellant did not repeat the fire, the injuries sustained by the accused side were suppressed, the occurrence took place in front of the shop of the appellants, and nobody knew as to what exactly happened between the parties at the spot as motive set out by the prosecution has not been proved which shows that it was not a premeditated attack. Therefore, if all these points are collectively taken into consideration, then, we are of the considered view, that it is a case of mitigation and not of capital I punishment. In this regard reliance is placed on IFTIKHARUL HASSAN V. ISRAR BASHIR AND ANOTHER (PLD 2007 SC 111), wherein, at page 119 of the judgment, 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 Ghulam Muretaza v. State (2004 SCM R 4), Faqir Ullah v. Khalil-uz-Zaman (1999 SCM R 2203), Muhammad Akram v. State (2003 SCM R 855) and Abdus &dam v. State (2000 SCM R 338). The Court while maintaining the conviction under section 302(b) awarded him sentence of life imprisonment under the same provision and also granted him the benefit of section 382-B, Cr.P.C."
To fortify our view, qua mitigation in a case where motive alleged but not proved and immediate cause of incident being shrouded in mystery, reliance is made to the case of MUHAMMAD AYAZ KHAN V. MURTAZA AND OTHERS (2008 SCM R 984), wherein, at page 373, the august Supreme Court was pleased to observe as under:--....................... The High Court having considered the circumstances leading to the occurrence modified the sentence with the consideration that motive set up - by the prosecution was not proved and the immediate cause of the occurrence was also not unfolded. This is correct that motive is not always an essential element of murder and weakness or absence of motive by itself may not be a valid reason for lesser punishment but in the present case, the prosecution has not been able to bring on record the material facts relating to the manner of taking place the occurrence and the immediate cause of occurrence, therefore, apart from the motive, the mystery in the circumstances leading to the occurrence would create sufficient mitigation in favour of the accused for lesser punishment."
In NOOR MUHAMMAD V. THE STATE AND ANOTHER (2010 SCM R 97), at page 101, the Hon'ble Supreme Court of Pakistan, has been pleased to observe as under:-- 4(..................... Thus the prosecution has failed to prove the motive. It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar (1979 SCM R 214) that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali v. The State (1971 SCM R 432) it has been held that the prosecution though not called upon to establish motive in every case, yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defenCe. In the case of Ameenullah v. State (PLD 1976 SC 629), it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept prosecution story."
The question of mitigation on account of non-existence of premeditation and the occurrence having taken place at the door of the accused came up for consideration before the august Supreme Court of Pakistan in the case of MUHAMMAD IBRAR V. THE STATE (2006 SCM R 1175), wherein, at page 1179, the Apex Court of Pakistan observed as under:-- The main reason which weighed with the learned High Court for reduction in sentence of petitioner was that it was not a premeditated incident and that it took place at the door of petitioner.
Impugned judgment is based on proper appraisal of evidence and does not require interference."
In MIRZA ZAHEER AHMAD AND ANOTHER V. STATE AND OTHERS (2003 SCM R 1164), at page 36, the Apex Court was pleased to observe as under:-- "It may be noted that although in F.I.R., no motive was assigned against appellant but during his statement Muhammad Rafique attempted to improve his earlier statement but a statement of a witness, which has been improved in the Court, would not advance the cause of the J. Prosecution case. Contrary to it such improvement can create doubt in favour of the defence. So we feel no hesitation in concluding that the prosecution has failed to allege or prove motive against the convict. -In addition to it, he had only caused one injury on the person of Tariq Javed deceased.
Besides, he is suffering rigors of trial by remaining in incarceration for the last about 14/15 years, therefore, following the observations in the case of Mehboob Ahmad and another v. Muhammad Khan alias Kalu and another (2003 SCM R 95), sentence of death awarded to him can be altered to life imprisonment............ ". (emphasis supplied)
In AHMAD Khan v. NAZIR AHMAD and 3 others (1999 SCM R 803), the factors of free fight and both the parties having come to the court with unclean hands, were considered to be a mitigating circumstance qua quantum of sentence and the sentence of death in the said case was converted into imprisonment for life.
21. Therefore, while maintaining Iftikhar Ahmad appellant's conviction under K section 302(b), P.P.C., his sentence of death is converted into imprisonment unexplained---Contradictory statement as for life. Benefit of the provisions of K to the arrest of the accused and place of section 382-B, Cr.P.C. Is extended to him. Recovery made by the Station House The amount of compensation and the imprisonment in default thereof, as ordered by the learned trial Court shall remain intact. Criminal Appeal No.1967 of 2001 (Iftikhar Ahmad v. The State) stands disposed of with the above modification in the quantum of sentence.
Murder Reference is answered in the NEGATIVE and sentence of death is NOT CONFIRMED..