1. MUHAMMAD ANWAARUL HAQ, J.---Muhammad Ramzan (appellant in Criminal Appeal No, 1447 of 2005), Muhammad Rasheed, Muhammad Gulzar, Muhammad Khalid and Zafar Iqbal (respondents Nos. 1 to 4 in Criminal Appeal No, 1676 of 2005) were tried in case F.I.R. No, 483 of 2004 dated 4-8- 2004, registered at Police Station Ferozewala District Sheikhupura in respect of offences under sections 302, 109, 148, 149, P.P.C. After conclusion of trial, learned trial Court vide its judgment dated 1-8-2005 has convicted appellant Muhammad Ramzan under section 302(b)., P.P.C. and sentenced him to death as Ta'zir with compensation of Rs,50,000 under section. 544-A, Cr.P.C. payable to legal heirs of the deceased and in default thereof to further undergo six months' R.I., whereas accused Muhammad Rasheed, Muhammad Gulzar, Muhammad Khalid and Zafar Iqbal have been acquitted of the charge.
2. ' Murder Reference No,03 of 2006 for confirmation or otherwise of death sentence awarded to appellant Muhammad Ramzan and Criminal Appeal No,1676 of 2005 filed by the complainant against acquittal of accused Muhammad Rasheed, Muhammad Gulzar, Muhammad Khalid and Zafar Iqbal as well as Criminal Revision No,816 of 2006 for enhancement of compensation of Rs,50;000 shall also be disposed of through this single judgment.
2. Prosecution story in brief un-folded in the F.I.R. (Exh.PA/1) got registered by complainant Muhammad Siddique-(P.W.8) is that on 4-8-2004 at 7-00 a.m. he along with Mushtaq Ahmad and Mehmood Ahmad (deceased) in routine went to their land situated at All Nagar near Gulshan-e- Farid Town, Ferozewala on Tractor No,5424/GAB for ploughing the fields and Mehmood Ahmad (deceased) started to plough the fields, whereas he and Mushtaq Ahmad started to clean the watercourse near the Peter Engine situated at a distance of two acres from that fields., that at about 8-00/8-30 a.m. they heard hue and cry raised by Mehmood Ahmad (deceased) that he be saved, upon which they rushed towards Mahmood Ahmad (deceased) and saw that Abdul Rasheed and Muhammad Ramzan accused having Chhurris' in their hands were inflicting repeated blows with Chhurris' on the person. of Mehmood Ahmad (deceased), who fell down on the ground and on seeing them the accused fled away from the scene of occurrence by brandishing Chhurris' and raising Lalkaras, that they took Mehmood. Ahmad in injured condition to Mayo Hospital where he succumbed to his injuries.
3. ' Motive behind the occurrence, as stated by the complainant, was that on 3-8-2004 at 11-00 a.m. a quarrel took place between Mehmood Ahmad (deceased) and Gulzar Ahmad accused regarding an employee, as Gulzar Ahmad accused forbade that employee to work with Mehmood Ahmad (deceased); that residents of Deh' patched up the matter and on the same day after Waghrib' prayer Mehmood Ahmad (deceased) for the purpose of effecting compromise sent Asghar Ali and Muhammad Yousaf to the house of Gulzar Ahmad where Gulzar Ahmad, Zafar Iqbal, Muhammad Ramzan, Abdul Rasheed and Khalid were present and Asghar Ali asked them that we should not quarrel with each other because of our employees, therefore, we should compromise as it would be better for both the parties, upon which Abdul Rasheed said that Mehmood Ahmad had disgraced and abused his father Gulzar Ahmad, so he will kill him, brothers of Abdul Rasheed also endorsed the same, whereas Gulzar Ahmad supported his sons and threatened of dire consequences as well as refused to compromise the matter, hence deceased Mehmood Ahmad was murdered by Gulzar Ahmad and his four sons in furtherance of their common intention.
4. 3.It is pertinent to mention here that in the report submitted by the police under section 173, Cr.P.C, accused Muhammad Gulzar, Zafar Iqbal and Muhammad Khalid were placed in column No,2, whereas accused Muhammad Ramzan and Abdul Rasheed were placed in column No,3 of the challan.
5. 4.On submission of challan and after completing the procedural formalities, the accused were formally charge sheeted by the learned trial Court on 11-1-2005 under sections 302, 148, 149, P.P.C., to which they pleaded not guilty and claimed trial. The prosecution examined as many as 16 witnesses to prove the charge against the accused persons. Dr: Muhammad Sarwar (P.W.15) provided medical evidence; Ramzan Ali, Inspector (P.W.13), Muhammad Shahbaz, S.I. (P.W.14) and Mukhtar Ahmad, S.I. (P.W.16) conducted investigation of this case, whereas Muhammad Siddique, complainant (P.W.8) and Mushtaq Ahmad (P.W.9) had furnished the ocular account.
6. 5.On 4-8-2004, Dr. Muhammad Sarwar (P.W.15) conducted post-mortem examination of Mehmood Ahmad deceased and found the, following injuries:-- (i)An incised wound 2 cm x 0.5 cm x cavity deep, on front of chest (in the middle and right side), 2 cm from mid line.
7. (ii)An incised wound 2 cm x 0.8 cm x cavity deep on right side of abdomen, 6 cm right to umbilicus.
8. (iii)An incised wound 2 cm x 0.8 cm x muscle deep on lower part of right forearm.
9. (iv)An incised wound 2.8 cm x 0.5 cm on inner and upper part of right forearm.
10. (v)An incised wound 1.5 x 1 cm x muscle deep on front, lower 1/3rd of right forearm (Injuries Nos.4 and 5 were through x through).
11. (vi)An incised wound 0.8 cm x 0.5 cm en inner and upper part of right upper arm.
12. (vii)An incised wound 2 cm x 0.5 cm on outer aspect of lower part of right upper arm (injuries Nos.6 and 7 were through x through).
13. (viii)An incised wound 1.5 cm x 0.5 cm x muscle deep on outer aspect of upper part of right forearm.
14. (ix)An incised wound 2 cm x 0.8 cm x muscle deep on back of right forearm in the middle.
15. ' In his opinion, cause of death in this case was extensive haemorrhage, shock and damage to heart due to injury No,1 and other injuries mentioned above and these were sufficient to cause death in ordinary course of nature; that injuries were ante-mortem and were caused by sharp- edged weapon and that duration between injuries and death was within one to two hours and between death and postmortem within 12 to 14 hours.
6. Learned SPP after tendering in evidence the reports of Chemical Examiner as Exh.PK and Exh.PK/1 closed the prosecution case.
7. Thereafter, statements of the accused as required under section 342, Cr.P.C. were recorded, in which they refuted all the allegations levelled against them and professed their innocence. While answering to question (Why this case against you and why the P.Ws. have deposed against you?), appellant Muhammad Ramzan replied as under:-- ' I have been implicated in this case falsely, due to mala fide and suspicion. I have nothing to do with the occurrence. I was not present at the time and place of occurrence. It was an unseen and un-witnessed occurrence. The occurrence was committed by the unknown person during the night and I was implicated just to blackmail and usurp my land. F.I.R. was registered after due deliberation and consultation at belated stage, with the connivance of the police after stopping the roznamcha. The P.Ws. are related to the deceased so they have deposed falsely.
16. ' Accused Muhammad Rasheed, Muhammad Khalid, Zafar Iqbal and Muhammad Gulzar adopted the same stance as taken by accused Muhammad Ramzan.
17. ' All the accused persons neither appeared as their own witness under section 340(2), Cr.P.C. in disproof of the allegations levelled against them nor produced any evidence in their defence.
8. After conclusion of the trial, co-accused namely Muhammad Rasheed, Muhammad Khalid, Zafar Iqbal and Muhammad Gulzar were acquitted from the charges, whereas appellant Muhammad Ramzan was convicted and sentenced by the learned trial Court, as mentioned above.
9. Learned counsel for the appellant in support of Criminal Appeal No,1447 of 2005 contends that matter was reported to police after due deliberations and consultations; that both the eye- witnesses namely Muhammad Siddique (P.W.8) and Mushtaq Ahmad (P.W.9) were not present at the place of occurrence at the relevant time and in fact it was an un-witnessed occurrence; that P.Ws. are highly interested witnesses as Muhammad Siddique (P.W.8) is real brother of the deceased whereas other witness namely Mushtaq Ahmad (P.W.9) is paternal cousin of the deceased, therefore, their testimony cannot be relied unless and until same are corroborated by any strong piece of other evidence; that there are material contradictions in the statements of eye-witnesses such as, P.W.8 has denied his relationship with Mushtaq Ahmad (P.W.9) whereas Mushtaq Ahmad has admitted this relationship; that police station falls on the way if one has to go to Mayo Hospital from the place of occurrence, but nobody has informed the police about this occurrence and the matter was reported with a considerable delay. As far as recovery of `Chhurri' is concerned, learned counsel contends that said recovery has lost its value because `Chhurri' was not sent to the Serologist and as such the origin of blood on the `Chhurri' could not be ascertained; that even otherwise, this recovery has not been proved because same was not witnessed by any independent witness; that P.W.11 Babar Ali has not been able to state any reason as to why on the day of alleged recovery he was present at the police station; that even Investigating Officer has not given any plausible reason for presence of P.W.11 at the relevant time at the police station. About the motive part, learned counsel contends that prosecution has miserably been failed to prove motive and even learned trial Court has disbelieved the motive; that prosecution case is full of doubts and the appellant is entitled to the benefit of doubt. Learned counsel for the appellant further contends that if this Court is not persuaded with the arguments of acquittal then it is not a case of capital punishment for the reasons that the motive, which was specifically alleged, has not been proved; that three persons from the appellant's side i.e, accused of conspiracy were acquitted by the learned trial Court and appeal against their acquittal has also been dismissed by this Court; that it is alleged by the prosecution that the appellant along with accused Muhammad Rasheed caused injuries, but no specific injury was attributed to anybody and only injury No,1 i.e, on the chest of the deceased was declared as fatal and it is not borne out as to who caused this injury and that occurrence took place on 4-8-2004 and as per statement of the appellant under section 342 Cr.P.C, which was recorded on 27-7-2005, he was around 18 years old.
18. 10.On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant contends that in the circumstances of this case, matter was promptly reported to police as first priority of the complainant's side was to make all possible efforts to save life of the injured and then to report the matter, therefore, there is no delay in this context; that the appellant is nominated in the F.I.R., with a specific role of causing injuries on the person of the deceased and both the eye-witnesses are natural witnesses of the incident, who are residents of the same village where occurrence took place; that there was no suggestion from the appellant's side that said witnesses had any enmity with the appellant; that ocular account in this case is fully supported by medical evidence on the record as the deceased as per postmortem examination (Exh.PJ ) received as many as nine injuries; that ocular account is further corroborated by recovery of Chhurri', taken into possession vide recovery memo. (Exh.PD) and as per report of Chemical Examiner said Churri' was blood-stained.
19. 11.As far as the appeal against acquittal i.e, Criminal Appeal No,1676 of 2005 is concerned, learned counsel contends that eye-witness account remained consistent against respondent Muhammad Rasheed and convict Muhammad Ramzan, but the learned trial Court has not given any valid reason for acquittal of respondent Muhammad Rasheed, who is fully involved in this case; that non-recovery of weapon of offence is not material and conviction of capital charge can be maintained without recovery if ocular account is confidence inspiring and supported by the medical evidence, which is case of the prosecution in the instant matter 12.In support of Criminal Revision No,816 of 2005, learned counsel contends that sentence of compensation awarded to convict Muhammad Ramzan is inadequate, which may be enhanced.
20. 13.Learned counsel for respondent No,1 Muhammad Rasheed opposed the appeal against acquittal on the ground that case of said respondent is distinguishable from convict Muhammad Ramzan as no recovery was effected from him and that now he enjoys double presumption of innocence in his favour as lie has been acquitted by the learned trial Court and the reasons given by the learned trial Court for his acquittal are valid and convincing.
21. 14.We have heard the learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the record with their able assistance.
22. 15.We have noticed that occurrence took place on 4-8-2004 at about 8-00/8-30 a.m. in the fields situated in Ali Nagar near Gulshan-e-Farid Town, Ferozewala, whereas the matter was reported to police at 10-30 a.m. on the same day at Mayo Hospital, Lahore. It is clearly mentioned in the F.I.R. that when the deceased Mehmood Ahmad received injuries he was taken to hospital and on his way he died. It is known to everybody that in such like situation first priority of the complainant's side is to save life of the injured instead of reporting the matter to police. Therefore, considering this aspect of the matter, we are of the view that about two hours delay in reporting the matter to police, in the circumstances of the case is not of much importance.
23. 16.The ocular account in this case has been furnished by P.W.8 Muhammad Siddique and P.W.9 Mushtaq Ahmad. They both are residents of the place where the occurrence took place. It is in the cross-examination of P.W.8 that his house is just at a distance of one kilometer from the place of occurrence and same is the case of other witness i.e, P.W.9. There was no suggestion to these P.Ws. that they were not residents of the area where occurrence took place. Mere relationship of the complainant (P.W.8) and the eye-witness (P.W.9) with the deceased is not a ground to disbelieve their evidence, which is confidence inspiring on all material aspects of the case and especially when there was no deep-rooted enmity between the complainant party and the accused. It is by now well settled that mere relationship of the witnesses is not a ground itself to discredit their testimony. In this respect, we place reliance on the judgment reported as Haji v. The State (2010 SCM R 650) wherein the Hon'ble Supreme Court has observed as under:-- "Both the ocular witnesses undoubtly are inter se related and to the deceased but their relationship ipso facto would not reflect adversely against the veracity of the evidence of these witnesses in absence of any motive wanting in the case, to falsely involve the appellant with the commission of the offence and there is nothing in their evidence to suggest that they were inimical towards the appellant and mere inter se relationship as above noted would not be a reason to discard their evidence which otherwise in our considered opinion is confidence-inspiring for the purpose of conviction of the appellant on the capital charge being natural and reliable witnesses of the incident."
24. ' Therefore, we do not find any reason to doubt the testimony of P.W.8 and P.W.9 qua the appellant, which otherwise is fully supported by medical evidence available on the record, as the doctor who conducted postmortem examination of the deceased has observed nine incised wounds on his person and it is the case of the prosecution that the appellant along with his co-accused (since acquitted) caused injuries to , the deceased, with Chhurris'.
25. 17.So far as the recovery of `Chhurri at the instance of the appellant is concerned, we are of the view that prosecution remained fail to establish the fact that blood found on the Chhurri' was human blood as no report of the Serologist is available on the record.
26. 18.Motive part of the occurrence as per F.I.R. and statements of the witnesses, before the learned trial Court was that one day prior to the occurrence, a quarrel took place between Muhammad Gulzar, father of the appellant (since acquitted) and Mehmood Ahmad deceased due to which, conspiracy for murder of the deceased was hatched. But the story of conspiracy has not been believed by the learned trial Court and even appeal against acquittal to the extent of three accused namely Muhammad Gulzar, Muhammad Khalid and Zafar Iqbal was also dismissed by this Court vide order dated 2-3-2006. No independent witness in this respect has been examined and we are of the view that learned trial Court has rightly disbelieved the motive part. But, even if the motive and recovery of `Chhurri' are excluded from consideration, there remains sufficient evidence in the form of ocular account fully supported by medical evidence. Therefore, we maintain the conviction of appellant Muhammad Ramzan under section 302(b), P.P.C., which in our view is based upon well settled principles of appreciation of evidence.
27. 19.As far as quantum of sentence is concerned, we have noted certain extenuating circumstances, which are as under:--
(i) It is the case of the prosecution that appellant and his acquitted co-accused namely Muhammad Rasheed caused injuries to the deceased, but there is no specific injury attributed to either of them and as per postmortem examination, it was only injury No,1 which was fatal and it is not known as to who caused that injury. In this context, we respectfully refer the judgments of the Honourable Supreme Court of Pakistan reported as Allah Dad and another v. The State (1995 SCM R 142), and Shehruddin v. Allah Rakhio and 5 others (1989. SCMR 1461), wherein it has been held that when it is not ascertainable with certainty in the circumstances of the case that who caused fatal injury to the deceased, the death sentence is liable to be modified.
28. (ii)The prosecution alleged a specific motive which was to the effect that there was a quarrel taken place between the deceased and father of the appellant, but that motive has not been believed by the learned trial Court and even the story of conspiracy has also been disbelieved, which creates doubt as far as the motive part is concerned.
29. (iii)Statement of the appellant under section 342, Cr.P.C. was recorded on 27-7-2005 wherein he is mentioned to be 19 years old, which means that at the time of occurrence he was around 18 years of age.
30. Therefore, we are convinced that the appellant in the peculiar circumstances of this case deserves benefit of doubt to the extent of his sentence one out of two provided under section 302 (b), P.P.C. It is well-recognized principle by now that accused is entitled for the benefit of doubt as an extenuating circumstance while deciding his question of sentence. Reliance is placed on the judgment reported as Mir Muhammad alias Miro. v. The State (2009 SCM R 1188) and case of Ansar Ahmad Khan Barki v. The State and another (1993 SCM R 1660).
31. 20.Resultantly, while maintaining the conviction of appellant Muhammad Ramzan under section 302(b), P.P.C., his sentence is altered from death to imprisonment for Life with the, benefit of section 382-B Cr.P.C, however, the penalty of compensation and the sentence in default thereof as ordered by the learned trial Court are maintained; accordingly with this modification in the sentence Criminal Appeal No,1447 of 2005 is dismissed. Death sentence of convict Muhammad Ramzan is not confirmed and Murder Reference No,03 of 2006 is answered in the Negative.
21. As far as Criminal Appeal No,1676 of 2005 against acquittal of accused/respondent No,1 Muhammad Rasheed is concerned, we have gone through the judgment passed by the learned trial Court and find that there was no recovery of Chhurri' from the said respondent and we are in agreement with the learned trial Court as far as the acquittal of respondent Muhammad Rasheed is concerned. It has been held by the Honourable Supreme Court of Pakistan in the judgment reported as Haji. Amanullah v. Munir Ahmad and others (2010 SCM R 222) that when an accused person is acquitted by the trial Court,. he enjoys double presumption of innocence and to dislodge that presumption very strong and convincing reasons are required, but no such reasons are reflected from the record, therefore, the acquittal of respondent No, 1 Muhammad Rasheed as ordered by the learned trial Court is maintained and Criminal. Appeal No, 1676 of 2005 stands dismissed. In the light of our above findings, we do not find any reason to enhance the compensation awarded by the learned trial Court, so Criminal Revision No, 816 of 2005 is also dismissed.