MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No,25-J of 2006 (Muhammad Arshad and another v. The State) and Murder Reference No,186 of 2005 sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to the appellants, as both these matters have arisen out of the same judgment dated 29-1-2005 passed by the learned Additional Sessions Judge, Chunian (Camp at District Jail, Kasur), whereby, appellants were 'convicted under section 302(b), P.P.C. and sentenced to death each with a further direction to pay a compensation of Rs,50,000 to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. in default whereof to further undergo SI for six months each. However, benefit of doubt was extended to co-accused Muhammad Ashraf and Inamullali and they were acquitted from the charge of murder. Fifth co-accused of the appellants, namely, Shaukat Ali was declared as Proclaimed Offender.
2. Brief facts of the case, as given by P.W.7 Liaqat Ali (complainant) in the F.I.R. (Exh.PG/1) recorded on the basis of his Farad Bayan (Exh.PG) are that he was resident of Chak No,14 and was a milk- seller. On the fateful day i.e, 23-1-2000 at about 7-00 a.m. his younger brother Riasat Ali @ Kali (deceased) was passing through the bazaar on a bicycle for the collection of milk while the complainant was following hirn. According to the complainant, when they reached near ' the house of one Munawar Rajput, the accused persons, namely, Inamullah, Muhammad Ashraf Achhoo (armed with a rifle), Shaukat Ali (armed with a rifle), Muhammad Arshad (armed with a rifle) and Muhammad Saleem (armed with a rifle) emerged there. Inamullah raised a Lalkara that Riasat Ali @ Kali (deceased) had come, upon which, Ashraf @ Achhoo made a fire in the air and raised a Lalkara to kill him. Thereafter, Shaukat Ali made two fires which hit Riasat Ali @ Kali (deceased) which stamped on his right wrist and left arm. Repeated fires made by Muhammad Saleem landed on front of head, above the right eye and chest of the deceased Riasat. The fires made by Muhammad Arshad hit Riasat Ali on the left arm and armpit. Thereafter,. as per F.I.R., all the accused made indiscriminate firing which hit on different parts of his body who breathed his last at the spot. The accused persons then decamped from the spot while raising Lalkaras. The occurrence, besides the complainant, as alleged, was witnessed by Muhammad Ashraf son of Muhammad Shafi and Amanat Ali son of Abdul Aziz. The complainant has stated in the F.I,R. that the above mentioned accused persons have killed his brother Riasat Ali @ Kali (deceased) in consultation with each other. The motive stated in the F.I.R. was that there was a deep-rooted enmity between the parties over murders.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the appellants as required under section 265-C of the Code of Criminal Procedure, charge was framed to which appellants pleaded not guilty and claimed trial
4. In order to prove its case, prosecution produced as many as 9 witnesses during the trial. The appellants 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. In answer to question "why this case, against you and why the P.Ws. have deposed against you", Muhammad Arshad appellant replied as under:-- "It was a blind murder committed by some unknown rivals of the deceased in thickly foggy night as the deceased was habitual offender being involved in so many theft and robbery etc. cases. He had also enmity with as many people due to his bad activities out of whom some unknown persons committed the murder of Riasat deceased. Further, my mother and sister were murdered whose murder case was registered against the brother of the complainant and also the deceased.
We i.e, my brothers Salim present in the court and Shaukat (P.O.) migrated to Chak No,44 Tehsil Mian Channu District Khanewal after murder -of our mother and sister, the complainant party had taken over forcibly possession of our land and houses. We have no concern at all with the murder of deceased being not present in locality and have been involved in this case falsely just to pressurize us for compromise in the murder case of our mother and sister. The P.Ws. being close relatives of the complainant party and interested have deposed against me falsely due to previous murder enmity".
' Muhammad Salim appellant stated as under:-- "I rely upon the answer to this question given by my co accused and real brother Arshad".
' However, the learned trial Court convicted and sentenced the appellants as detailed above.
5. Learned counsel for the appellants contends that in the F.I.R. it was alleged that the occurrence had taken place at 7-00 a.m. whereas the circumstances indicate that in fact the occurrence took place much earlier to the time mentioned in the F.I.R.; that the occurrence was not witnessed by any one and later on witnesses were planted; that P.W.7 Liaqat Ali (complainant) is the real brother of the deceased while P.W.8 Muhammad Ashraf is his cousin(Chachazad); that the presence of these close relatives at the time of occurrence is highly improbable; that the mother and sister of the appellants and Shaukat Ali (PO) were murdered in which case Riasat Ali @ Kali(deceased) and P.W.7. Liaqat Ali (complainant) were accused; that they were declared innocent but the case was still pending; that the occurrence was unseen and later on appellants were involved for the reason that the complainant side wanted to exert pressure on the appellants party to enter into a compromise with them qua the murder of mother and sister of the appellants; that it is prosecution's own case that four crime empties were recovered from the place of occurrence and similarly a rifle was recovered from Saleem and Arshad appellants but there is no report of the Firearm Expert which indicates that the report must have been in other way and that is why the same has been suppressed; that as the witnesses in this case are inimical towards the appellants, therefore, their statements cannot be relied upon without any independent corroboration from some independent source which is very much lacking in this case; that the medical evidence does not support the prosecution case as P.W.7 Liaqat Ali (complainant) attributed direct injuries to the appellants/ accused whereas P.W.8 Muhammad Ashraf has given a general role of firing to all the accused persons and it is not sure as to whose fire proved fatal; that two acquitted co-accused of the appellants, namely, Muhammad Ashraf and Inamullah were also stated to be present at the spot while armed with rifles but they have been acquitted by the learned trial Court while disbelieving the same eye-witness account; that it has come on record that at the relevant time there was fog, therefore, in these circumstances it cannot be said as to who was responsible for the death of the deceased; that so far as investigation is concerned, Investigating Officer was not produced in Court and as such only secondary evidence regarding his investigation was furnished and that the appellants are entitled to acquittal.
' Learned counsel lastly contends that if the prosecution evidence is admitted to be true even then it is not a case of capital sentence especially when five persons were implicated in this case for the single murder amongst whom two have already been acquitted by the learned trial Court on the same evidence, two are before this Court as appellants and the fifth is an absconder; that P.W.7 Liaqat Ali has changed the seat of injury qua Arshad appellant because in the F.I.R. he has attributed two injuries to the said appellant on the left arm and armpit while before the Court he has attributed him an injury on the chest of the deceased which is an attempt just to make in line the ocular account with the medical evidence and that young age of both the appellants is yet another circumstance which can be considered as a mitigating aspect of the case because the occurrence in this .case took place in the year 2000, statements of the appellants under section 342, Cr.P.C. were recorded in 2005, now we are passing through the year 2010 and their ages were 25/26 and 30/31 years, respectively.
6. On the other hand, the learned Additional Prosecutor-General for the State, while vehemently opposing this appeal, contends that the appellants are named in the F.I.R. with specific roles; that, in order to prove its case, the natural eye-witness account has been furnished by the prosecution and despite .cross-examination the defence could shake nothing from the testimony of the witnesses; that the matter was reported to the police just after one hour of the occurrence while F.I.R. was registered after two hours of the incident; that the postmortem examination was conducted within eight hours which coincides with the time of occurrence; that there was no occasion for the complainant party for concoction of the story; that the ocular account in this case is supported by the medical evidence; that the presence of empties at the spot also strengthens the prosecution case regarding the weapons with which the appellants were armed at the time of occurrence; that the appellants had a specific motive to kill the deceased; that the intention of the appellants to kill the deceased is evident from the fact that they made repeated fires at him, so, they are not entitled to any leniency. So far as acquittal of two co-accused of the appellants is concerned, learned APG contends that the role attributed to them was general in nature and no specific injury was attributed to them and they were extended the benefit of doubt. Lastly, contends that even otherwise, in such like cases, substitution is a rare phenomenon and as the prosecution has proved its case against the appellants beyond any shadow of doubt, therefore, their sentence may 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 23-1-2000 at about 7-00 a.m.; the matter was reported to the police by P.W.7 Liaqat Ali (complainant) at about 8-00 a.m.. through Fard Bayan (Exh.PG) at Chowk Bhoe Aasal, the formal F.I.R. was registered on the same day at about 9-00 a.m while distance between the place of occurrence and the Police Station was about 18 kilometers. All the details of the incident are mentioned in the F.I.R., so, in our view the F.I.R. was lodged without any delay.
9. The prosecution, in order to prove the ocular account, has produced P.W.7 Liaqat All (complainant) and P.W.8 Muhammad Ashraf. Both these eye-witnesses are residents of the same Chak No,14 Gajjal Bungla, Police Station Chhanga Manga where the occurrence took place.
10.P.W.7 Liaqat Ali (complainant) is the real brother of Riasat Ali Kali (deceased) while P.W.B.
Muhammad Ashraf is his Chachazad (cousin). Both of them have reasonably explained their presence at the spot. Statements of both these witnesses are corroborative to each other B and the defence could shake nothing useful to the appellants from their statements. Moreover, substitution in such like cases is a rare phenomenon. It is settled law that the evidence furnished by the related eye- witnesses cannot be discarded merely because of their relationship with the deceased if it is otherwise confidence inspiring which; of course, is the situation in this case.
11.P.W.9 Dr. Muhammad Iqbal Javaid, conducted postmortem examination on the body of Riasat Ali @ Kali (deceased) and noted 12 injuries on his person which fact further supports the prosecution case. According to the opinion of the doctor, the probable time between the receipt of injuries and death was immediate and between death and postmortem examination was about 8 to 12 hours which coincides with the time of occurrence, as claimed by the prosecution.
12.The motive set up by the prosecution in this case was that there Was litigation between the parties over murders which fact has even not been disputed by the appellants as it has been suggested to P.W.7 Liaqat Ali (complainant), on behalf of the appellants, during cross-examination, that the case of murder of niother and sister of the appellants was registered against the deceased and others.
13.So far as recovery of .7 mm rifle (PS) at the instance of Muhammad Arshad appellant and .222 bore rifle (P6) at the hands of Muhammad Salim appellant, which were taken into possession through memos Exh. PB and Exh.PC respectively, is concerned, as there is no report of the Fire-arm Expert regarding these weapons, therefore, it is of no avail to the prosecution. But, if it is excluded from the prosecution evidence, even then there is sufficient incriminating material against the appellants in the form of statements of P.W.7, P.W.8 and P.W.9 to connect them with the commission of the crime.
14.In the afore-referred circumstance of the case, we are of the considered view that the prosecution has proved its case against the E appellants beyond any shadow of doubt to maintain conviction.
15.However, we have noted that there are certain extenuating circumstances which suggest that it is not a case of capital sentence, firstly, because five persons were implicated in this case for the single murder amongst whom two have already been acquitted by the learned trial Court on the same evidence, two are before this Court as appellants and the fifth is an absconder, secondly, P.W.7 Liaqat Ali has changed the seat of injury qua Arshad appellant because in the F.I.R. he has attributed two injuries to the said appellant first on the left arm and second on the armpit while before the Court he has attributed him an injury on the chest of the deceased, thirdly, appellants were of young age at the time of occurrence because the occurrence in this case took place in the year 2000, statements of the appellants were recorded in 2005 and at that time their ages were 25/26 and 30/31_years respectively, fourthly, appellants' fifth co-accused Shaukat Ali who was also attributed fire shots on the body of the deceased is still at large and, lastly, the appellants have faced the agony of protracted trial and appeal for the last more than ten years. 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 Iftikharul Hassan v. Israr Bashir and another (PLD 2007 SC I1 I). In the said judgment, at page 119, the learned Apex Court has been pleased to hold as under:--4 ' 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 i not enforceable, the Court in a case of Qatl-e-anid, 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 Salam v. State (2000 SCM R 338)".
16.We are of the firm view that in the peculiar facts and circumstances of the case it is a fit case in which such a discretion needs to be exercised in favour of the appellants.
17.In this view of the matter, while maintaining conviction of the appellants under section 302(b), P.P.C. for the murder of Riasat All Kali (deceased), their sentence of death is converted into imprisonment 1-1 for life each. 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 appellants. This appeal is partly allowed with the above modification in the quantum of sentence of both the appellants.
' Murder Reference is answered in the negative and sentence of death is not confirmed.