' IJAZ AHMAD CHAUDHRY, J.---Musaddaq appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment dated 13-7-2005 passed by the learned Additional Sessions Judge, Hafizabad and was sentenced to death as Ta'zir and to pay a sum of Rs,1,00,000 to the heirs of Tahir Mehmood deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months. Through the same judgment the learned trial court has acquitted five co-accused of the appellant.
2. The appellant has challenged his convictions and sentences before this Court through Criminal Appeal No,1393 of 2005 which has been heard by us along with Murder Reference No, 504 of 2005.
We propose to decide both these matters together through the present consolidated judgment.
3. According to the prosecution case set forth in the private complaint the complainant had submitted an application to the Station House Officer of Police Station Kassoki for registration of a criminal case against accused persons to the effect that on the fateful day the complainant had approached one Mushtaq, resident of Bhogewala Mashmoola Kassoki in the company of his two brothers namely Tahir Mehmood, Ikram-ul-Haq and one Tariq resident of Gung, fallen within the area of Police Station Bhikki, District Shcikhupura but the above said Mushtaq could not be traced at his residence. Upon which the complainant along with his companions were returning back at 4.30 in the evening to village Kassoki and when they were passing through near the Bethak of one Ameer resident of Bhogewala, all of a sudden accused Musadaq, Nasir, Khalid, Zafar Ullah alias Kaloo, Falak Sher, Munawar, Ameer, Ghous and Riasat while armed with pistols .30 bore emerged at the spot. Accused Ghous raised a lalkara to take revenge of the murder of Munawar Hussain from the complainant party and fired at Tahir which he sustained at his left biceps. Then Munawar accused fired which hit Tahir at his right arm, Falak Sher made fire which hit Tahir at left thigh, Riasat made fire with his pistol which hit Tahir at left shoulder, Zafar Ullah alias Kaloo made fire which hit Tahir Mehmood at right side of his chest, Nasir made fire with his pistol which hit Tahir Mehmood on left side of his head upon which he fell down and on that condition Musadaq made a fire with his pistol which Tahir sustained at his flank.
' The complainant tried to save Tahir Mehmood along with his companions but the accused persons resorted to firing at them who saved their lives by running from the spot. The brother of the complainant succumbed to his injuries at the spot. The accused persons left the place of occurrence by making, firing. The occurrence was witnessed by the complainant along with lkram- ul-Haq and Tariq Mehtnood. The motive set up in the private complaint was that on 15-3-1989 real brother of Falak Sher accused, maternal uncle of Musadaq, Nasir, Khalid and Zafar Ullah alias Kaloo accused and close relative of the remaining accused was murdered and for that occurrence F.I.R.
No, 30/89 under sections 302/148/149, P.P.C. Was got lodged against the brother of the complainant namely Anwar alias Anwari and other nominated accused persons. The brother of the complainant namely Anwar-ul-Haq was acquitted from that criminal case and due to that grudge the appellant along with his other co-accused had committed the murder of Tahir deceased by making firing. Leaving the deadbody in the care of Ikramul-Haq and Tairq Mehmood the complainant proceeded, to report the matter to the police and on the basis of his application, F.I.R.
No,269 of 2004, dated 17-11-2004 under sections 302/148/149, P.P.C. Was registered at Police Station Kassoke. The police after handing over the deadbody of deceased Tahir Mehmood got conducted his post-mortem examination. The initial investigation of the case was conducted by the Station House Officer of Police Station Kassoki but he did not arrest the accused and that is why the investigation was come up with Zafar Ullah Khan, Deputy Superintendent of Police, Hafizabad before whom the complainant along with the eye-witnesses and other respectable of the vicinity appeared and got proved presence of all the accused at the place of occurrence. The above said Deputy Superintendent of Police ensured the complainant that he would effect recovery from all the accused and summon the complainant as and when feel necessity but thereafter as he was in league with the accused party, only arrested the appellant. He declared the rest of the accused innocent except the appellant without associating the complainant with the investigation. Because the investigation had been conducted at the back of the complainant, thus, he had lost confidence upon the police and decided to lodge private complaint.
4. The private complaint was initially instituted before the learned Judicial Magistrate, Hafizabad who sent the same to the learned Sessions Judge, Hafizabad. The same was entrusted to the learned trial court on 14-3-2005. Upon receipt of the private complaint the learned trial court recorded preliminary statement of the complainant and other preliminary evidence produced by him in support of his case. The learned trial court summoned the accused persons on 18-3-2005 to face the trial under sections 302/148/149, P.P.C. On the other hand the challan regarding the same incident had also been sent to the learned trial court on 22-2-2005 which remained pending for want of attendance of the accused and except Khalid and Riasat accused all the other accused persons put their appearance in pursuance of challan. The learned trial court also marked their presence in private complaint instituted by the complainant. The above said two accused Khalid and Riasat were declared as Proclaimed Offenders vide order dated 3-5-2005.
5. At the commencement of the trial the learned trial Court framed charge under sections 302/148/149, P.P.C. Against the appellant and co-accused on 8-6-2005 to which, they pleaded not guilty and claimed a trial.
6. During the trial, the prosecution produced five witnesses in support of its case against the appellant whereas eight other witnesses had also got recorded their statement before the learned trial court as C.W.1. To C.W.B. Ehsan-ul-Haq complainant (P.W.4) and Ikram-ul-Haq (P.W.5) furnished the ocular account of the incident in question and Ehsan-ul-Haq complainant also deposed about the motive. Munawar Hussain (P.W.3) stated about recovery of pistol (P.5) and its two magazines (P.5/1-2) from the appellant's possession during the investigation of this case. The medical evidence was provided by Dr.Basharat Rasool (P.W.6). It is worth mentioning to point out here that the complainant has given up Abdul Bari, Rana Muhammad Azam, Qurban Ali and Tariq Mehmood P.Ws. As being unnecessary. The remaining evidence produced by the prosecution/complainant was more or less formal in nature.
7. In his statement recorded under section 342, Cr.P.C. The appellant denied and controverted all the allegations of fact levelled against him by the complainant and professed his innocence. He, however, opted not to make a statement on oath under section 340(2), Cr.P.C. And did not produce any witness in his defence. In response to a question that why this case against him the appellant replied:-- "Tahir Mehmood deceased was a desparate and hardened criminal as he was involved in several cases for different offences as apparent from the copies of F.I.Rs, D.A to D.K. He was having enmity with different people. Some unknown persons committed murder of Tahir Mehmood deceased but the complainant and P.Ws. Have falsely roped me and my co-accused in this case on account of suspicion because previously there was enmity between us the complainant party for the murder of Munawwar Hussain but in fact the said matter was patched up between the complainant party and our family 16/17 years ago. All the private P.Ws. Are closely related to the deceased and they are. Interested interse and inimical towards me and my co-accused. No independent witness was produced to establish our guilt. I had no motive to kill Tahir Mehmood. Marriage of Shehla the daughter of Ghaus my co-accused was scheduled to be solemnized on a date which happened a few days after the occurrence of this case and on such a critical juncture none can think of commission of such occurrence like a murder of human being. To prove the marriage date of the said Shehla I produced copy of her Nikah nama as Exh. D. I
8. Upon conclusion of the trial the learned trial Court found the prosecution's case against Musaddaq appellant to have been proved beyond reasonable doubt and, thus, it convicted and sentenced him as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference.
9. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that total nine accused have been involved by the complainant in the present case and specific injuries have been attributed to all of them. Out of the nine five accused persons have been acquitted by the learned trial court and the role of the appellant is not dissimilar to or distinguishable from the acquitted accused persons. The recovery affected in this case is of no consequence as the empties were sent late to the Forensic Science Laboratory and, thus, the conduct of the investigating officer in this case is not above-board. Lastly he has prayed that if his submissions are not accepted by this Court then he would seek reduction in sentence passed against the appellant by the learned trial court as this is not a case of capital punishment. On the other hand the learned counsel for the complainant and the learned Deputy District Public Prosecutor appearing for the State have contended in unison that the conviction is based upon, the evidence of the prosecution witnesses, who were quite natural. The ocular account has been fully supported by the medical evidence and was also corroborated by the recovery of weapon of offence and, thus, the conviction awarded to the appellant by the learned trial court may be maintained. The motive is admitted it this case, thus, the prosecution has succeeded in proving the guilt of the appellant to the hilt. The sentence passed in this case may be maintained. As far as quantum of sentence is concerned they have submitted that since the conviction is being maintained by this Court they feel satisfied and have nothing to say about the quantum of sentence as this is pure discretion of this Court.
10. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has been observed by us that the incident in the present to the complainant had taken place at 4-30 p.m., and the same was reported to Police Station which was situated at a distance of two kilometers from the place of occurrence at 6-00 p.m. On the same day, i.e, 17-11- 2004, on the application submitted by the complainant at the concerned Police Station. Thus, the F.I.R. In this case has been lodged with sufficient promptitude wherein the appellant had been duly nominated and specific attribution had been assigned to him therein. It was a daylight occurrence and the complainant as well as the, eye-witnesses, due to previous litigation with the appellant party, had sufficiently recognized the appellant at the spot at the relevant time and substitution of real culprit in place of the appellant in this case is not questioned from any corner.
11. To prove the ocular account, the complainant himself appeared in the witness box as P.W.4 and he also examined Ikram-ul-Haq P.W.5 as eye-witness. Both the eye-witnesses had reiterated their stance already taken in the private complaint instituted by the complainant (P.W.4) and they were remained in line in respect of mode and manner happened at the place of occurrence. The defence could not shatter their testimony on all the material points. They have explained each and every aspect of the incident in so many words vis-a-vis involvement of the appellant and role played by him at the spot. Their oral evidence had got sufficient substantiation from the blood- stained earth and empties (P.4/1-9) collected from the place of occurrence. The reports of Chemical Examiner (Exh.PN) and Serologist (Exh.P0) in this regard were in the positive. The report .Of Chemical Examiner was also in the positive with regard to the empties (P.4/1-9) recovered from the place of occurrence revealing that the same were duly matched with the, pistol (P.5) recovered from the appellant after his arrest. The learned counsel for the appellant has vehemently argued that the prosecution had only examined interesting witnesses in support of its case and had not brought into witness box any independent witness so as to establish the guilt of the appellant through any independent oral evidence. We have, however, remained unable to appreciate this point of view because it has now a well settled proposition of law that the mere fact of relationship of the witnesses with the complainant or the deceased and their inimical behaviour towards the appellant alone would not sufficient to smash up the evidence adduced by such witnesses. Such evidence can be believed C without corroboration if intrinsic worth of the testimony inspires confidence of the court and the same leads to inference that the witnesses were present at the scene of the crime and they have seen the occurrence. Reliance is placed on the case of Muhammad Ahmad and another v. The State and others (1997 SCM R 89). Even otherwise the rule requiring independent corroboration of testimony of interested witnesses is a rule of prudence which is not to be applied rigidly in each case. There can be cases like the present one where implicit reliance can be placed on the testimony of an interested witness if it otherwise inspiring confidence of the Court. Admittedly the complainant had reported the matter within two hours while approaching the Police Station by foot which was 2/3 kilometers away from the place of occurrence and the same could only be possible if the complainant had himself present at the scene of crime and seen the occurrence. Thus, the ocular account furnished by the complainant (P.W.4) and Ikram-ul-Haq (P.W.5) eye-witnesses had amply proved by the prosecution during the trial before the learned trial court and we too felt satisfied in respect of the involvement of the appellant in the murder of the deceased.
12. Another critical aspect of this case is that soon after taking place of the murder of Tahir Mahmood deceased the criminal law was set into motion by the complainant through registration of F.I.R. But during the investigation of this case the complainant had lost confidence upon Ghulam Rasool, S.-I. (C.W.1), the first investigating officer and got transferred the same because he had found during the investigation that it was none else but the appellant who alone had committed the murder of the deceased and rest of the accused had falsely been involved in this case by the complainant party. Even Zafar Ullah Khan, DSP (C.W.8), the subsequent Investigating Officer had also reached the same conclusion and fully involved the appellant in this case. Both the above said witnesses C.W.1 and C.W.8 were subjected to lengthy cross-examined by both the sides but they unanimously incriminate the appellant with the commission of alleged murder.
13. Although the recovery is said to be a supportive piece of evidence in a murder case yet in some cases, like the one, recovery played an important role in proving the guilt of the real culprit especially in the circumstances when more than one accused were involved by the prosecution in a criminal case. In this case as many as nine accused had been involved by the prosecution out of whom the appellant was convicted and rest of the accused had been acquitted by the learned trial court while extending the benefit of doubt to them. A pistol .30 bore had been got recovered on 27-12-2004 at the pointing out of the appellant along with two magazines from his house. The above mentioned pistol (P.5) and nine empties, recovered from the place of occurrence, were sent to the Forensic Science Laboratory and according to the report the empties were matched with the recovered pistol. The prosecution had examined Munawar Hussain (P.W.3) in support of recovery who provided full detailed of affecting recovery from the appellant while appearing in the witness box. No doubt that all the nine accused were shown holding pistols .30 bore in their hands at the time of occurrence but the empties recovered from the spot were matched only with the pistol recovered from the appellant. Thus, the recovery effected in this case by the appellant had indeed played an imperative role in this case to bring at home the real culprit out of the nine. The only objection raised by the defence with regard to effecting of, recovery was that the prosecution had associated no private witness with the recovery proceedings and in this way had violated the provisions of section 103, Cr.P.C. In this regard we observe that no plausible explanation is available to discard the statements of recovery witnesses namely Qurban Ali and Munawar Hussain who had furnished reliable evidence in support of recovery which inspired the confidence of the learned trial court and this Court as well. It was the appellant who himself led to the place of recovery and above mentioned two witnesses sufficiently explained the recovery proceedings, the objection raised by the defence does not carry much weight.
14. The medical evidence was furnished by Dr. Basharat Rasool (P.W.6.) who while adducing evidence has pointed out injury attributed to the appellant on the right flank of the deceased which injury was sufficient to cause death. Thus, the ocular account has find ample support from the medical evidence available in this case. The motive set up by the prosecution in the private complaint was stated to be previous enmity between the parties and in supported of motive the prosecution had mentioned F.I.R. No, 30 of 1989 under sections 302/148/149, P.P.C. In the private complaint. It had been stated that one Munawar Hussain was murdered by the accused party and brother of the complainant namely Anwaar-ul-Haq alias Anwari was booked in that murder case who was acquitted of the charge and that is why the accused party had taken revenge by murdering Tahir Mahmood deceased. The above mentioned F.I.R. Had provided sufficient support to the motive part of this case and, thus, the prosecution has succeeded in establishing the motive in this case.
15. In sequel to the above discussion we have come to an irresistible conclusion that the deposition made by the eye-witnesses to the extent of co-accused of the appellant is not free from doubt as there is no corroboration of the same from any corner, i.e, medical, recoveries and investigation conducted in this case. However, after perusing the police file and the other record available in this case we have noticed that as far as involvement of the appellant is concerned, we have no doubt in our mind that there is sufficient evidence on the record to establish the involvement of the appellant in this case. Firstly during investigation when other persons have been appearing to prove the innocence of the co-accused of the appellant nobody has appeared on behalf of the appellant to support his innocence. If the Investigating Officers could declare his co-accused as innocent, then there was no hurdle in their way to declare the appellant innocent as well. The appellant had not seriously tried to bring anything on record to prove his innocence. Even otherwise during his first version before the police the appellant had admitted the committing of occurrence. The involvement of the appellant is not only fully supported by recovery of weapon of offence from him but also by matching of empties with the recovered weapon. All the other supportive pieces of evidence also established involvement or the appellant with the commission of murder in this case.
16. So far as the sentence passed by the learned trial court against the appellant is concerned we have seriously considered the lacunae and shortcoming on the part of the prosecution. Admittedly the complainant has involved nine accused including the appellant in the murder of Tahir Mehmood deceased and astonishingly assigned specific injuries to each of them. It does not appeal to a prudent mind that when nine persons/accused had been constantly making firing at the spot with their respective weapons one cannot note locale of each and every injury on the person of deceased at the same moment. The sequence of firing assigned to nine accused one by one by the complainant and the other eye-witnesses in the F.I.R. As well as in the private complaint smacks an element of mala fide on the part of the complainant. It is significant to mention here that what about a human being, even it is not possible for the camera eye to note each and every fire made by nine persons vis-a-vis locale of injuries sustained by the single deceased at the spot.
17. There is a common tendency among the villagers that they involve the whole family members of their opponents even in the matter of petty disputes. In this case the complainant side had tried to involve as maximum number as they intended including the real culprit. Not only the deceased was their real target but also the eye-witnesses were common target of the accused persons and amazingly none of them had even received a scratch on their persons. All the accused persons were shown to be holding firearms with them at the place of occurrence and there was nothing to stop them to take the life, of the witnesses as well. There is another interesting feature that all the accused persons have been shown to arm with pistols which is a rare and unusual thing. It means that this has been done for the sole reason that they wanted to involve the whole family. From the above analysis of evidence we are satisfied that the prosecution witnesses have exaggerated the story and have not spoken the whole truth. Even according to the post-mortem examination of the deadbody total eight injuries are found on the person of the deceased but the injuries attributed to Ameer, Munawar, Nasir and Khalid were found exit wounds. The appellant was initially assigned two firearm injuries, one on the back of head and second on right flanks and this fact was also mentioned in the private complaint but while appearing as witness at preliminary stage the complainant had not mentioned injury on the back of head and had only stated, about the injury caused by the appellant on the right flank of the deceased. Even no injury is found on the back of head and some improvement was made by the witnesses just to bring the case in line with the ocular account. It is true that the complainant had proved motive by producing F.I.R. For establishing previous enmity between the parties but at the same time it is equally true that the matter was patched up between the parties and for about 16/17 years nobody from either side had made even a single application against each other. During the above said period the parties to this case had remained peacefully.
18. In view of above discussion it can be expressed here without any manner of doubt that to award a capital punishment to an accused person involved in a criminal case the prosecution/complainant has to produce trustworthy, reliable and unyielding oral evidence; concrete substantiating material in support of ocular account; accurate support from the medical evidence; and sound/cogent reasons for committing offence should be available in a criminal case. In murder cases only a compact evidentiary structure, built up by the prosecution, can bring the guilt of an accused to home and even slight lapse on the part of the prosecution can cause damage to such structure. Here in the present case there exist some cogent reasons as have been mentioned in preceding paragraphs which lead us to avoid from maintaining capital punishment/death sentence to the appellant in this case. Admittedly the occurrence could not have been reported by the eye-witnesses as alleged in the F.I.R. On the other hand the appellant has also failed to convince us about his innocence so we have to infer our own as to what would be the punishment which would serve the safer course of justice. So there are mitigating circumstances available in this case to reconsider the punishment awarded to the appellant by the learned trial court. Unfortunately nothing has been brought on record by either side as to under what circumstances the murder of the deceased had actually been taken place. Even otherwise the appellant was a young man of 25/26 years when the occurrence had taken place and according to the motive set up he had committed the occurrence to take the revenge of his maternal-uncle who was murdered 16/17 years earlier. It means that the appellant was 6/7 years of age when his maternal uncle was murdered. Keeping in view the village trends, a boy since his birth was being taught that he has to take the revenge of his maternal uncle who was done to death by his enemies. So there is possibility that he might have committed the murder under the influence of his elders. This Court as well as the Hon'ble Supreme Court in various cases have reduced the sentences of such accused persons. Hence, we have come to the conclusion that mitigating circumstances are available in this case to reduce the sentence of the appellant keeping in view the motive, including the manner, mode and false implication of co-accused of the appellant in this case.
19. As a result of above discussion while maintaining the conviction of the appellant under section 302(b), P.P.C. We reduce his sentence from death to imprisonment for life. The benefit under section 382-B, P.P.C. Is extended to the appellant. The conviction regarding compensation amounting to Rs,1,00,000 under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default of payment thereof the further conviction of simple imprisonment for six months is hereby maintained and upheld. This appeal is dismissed with the modification made above.
20. For the above noted reasons Murder Reference is answered in the negative and the sentence of death is not confirmed.
Sentence reduced.