JUDGMENT MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No.755 of 2005 titled "Muzaffar alias Billoo v. The State" and Murder Reference No.496 of 2005 titled "State v.
Muzaffar alias Billoo" as both these matters have arisen out of the same case i.e. F.I.R. No.816 of 2002 dated 14-11-2002 offence under section 302, P.P.C. Registered at Police Station Phoolnagar, District Kasur.
2. Muzaffar alias Billoo appellant has preferred Criminal Appeal No.755 of 2005 against his conviction and sentence whereby he was convicted by the learned Additional Sessions Judge Pattoki vide judgment dated 25-4-2005 and sentenced as under:-- "The accused is, therefore, convicted and sentenced to death under section 302(b), P.P.C. And compensation of Rs.100,000 under section 544-A of Cr.P.C. If recovered to be paid to the legal heir of deceased. In default of payment to pay compensation accused shall suffer imprisonment for a period of six months." The learned trial Court has sent Murder Reference No.496 of 2005 for confirmation or otherwise of the sentence of death awarded to Muzaffar alias Billoo (convict).
3. Brief facts of the case are that Rehmat Ali, complainant (P.W.6), on 14-11-2002, reported to Muhammad Siddique S.-I. (P.W.9) through his statement (Exh.PE) that he was resident of Lambe Jagir and a labourer by profession. He was constructing a house after purchasing a plot at Mega Road, Phoolnagar. At 4-15 p.m. His younger brother Mukhtar Ahmed (deceased) went to the shrine of Baba Mangat Ali, Phoolnagar. The complainant (P.W.6), along with his father Bashir Ahmed (P.W.
Since given up) and Muhammad Hanif (P.W.7) went to the shrine, to pay homage. The bands were being played at the shrine. Brother of the complainant forbade them. In the meantime, Muzafar alias Billoo (appellant) son of Akhtar Ali, caste Arain, resident of Chadar Chhat, Mohallah Nazeer Shah, Phoolnagar came there and declared that the bands would be played at every cost.
Confrontation took place between brother of the complainant and the said Muzaffar (appellant).
Muzaffar alias Billoo (appellant) pulled out a pistol.30 bore (P-1) from his NEFA. Mukhtar on seeing pistol ran from the spot. Appellant followed him. The complainant and others also ran after them to patch up the matter. Appellant, at some distance, fired at running Mukhtar. The fire shot hit him on the backside of neck and passed through the left Cheek. Mukhtar was seriously injured. He was cared by the complainant and others but he succumbed to the injuries shortly. The appellant ran away, brandishing pistol. Occurrence was witnessed by the complainant (P.W.6), his father (P.W.
Since given up) and Muhammad Hanif (P.W.7). Motive for the murder was stated to be a petty quarrel.
4. Rehmat Ali complainant (P.W.6) proceeded to the Police Station. In the way, he met Muhammad Siddique S.-I. (P.W.9) who recorded statement of the complainant (Exh.PE) and sent the same through Hanif Constable to the Police Station for the registration of formal F.I.R. (Exh.PC). Thereafter he went to the place of occurrence, inspected the spot and prepared inquest report (Exh.PH). He secured bloodstained earth through memo (Exh.PF) and crime empty through memo (Exh.P.F). He prepared the unsealed map (Exh.PK). Last worn clothes of the deceased were produced before him by Abdul Ghafoor 226-C (P.W.8) which were secured through (Exh.PG). On- 24-11-2002 he arrested the appellant. On 27-11-2002 he effected recovery of pistol (P-1) on the pointation of appellant and took the same into possession through memo. (Exh.PD). They appellant was sent to the judicial lock up on. 28-11-2002. Patwari Halqa inspected the spot on 30-11-2002 and produced scaled map (Exh.PB and Exh.PB/1) in duplicate. On 2-1-2003 the file was handed over to the S.H.O. And he forwarded the challan to the Court.
5. Copies of the documents were provided to the appellant under section 265-C, Code of Criminal Procedure, vide order dated 12-7-2003. Formal charge was framed against the appellant on 3-9- 2003, to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined nine with his in all. Dr Mehmood Ahmad Nasir, Medical Officer, Tehsil Headquarters Hospital Pattoki appeared as P.W.1 and stated that on 15-11-2002 he Doubted post mortem examination on the dead body of Mukhtar Ahmad (deceased). Jafar Ali, Patwari, Halqa Phoolnagar, appeared as P.W.2 and stated that on the direction of the Investigating Officer and pointation of the eye-witnesses, he prepared scaled site plan of the place of occurrence in duplicate (Exh.PB and Exh.PB/1). Shaukat Ali A.S.-I. Appeared as P.W.3 and Stated that on the basis of complaint (Exh.PE) he drafted the formal F.I.R. (Exh.PC). Tabassum Hussain 866-C appeared as P.W.4 and stated that on 23-12-2002 he was handed over a sealed parcel said to contain blood-stained earth. On the same day he was handed over another sealed parcel said to contain pistol.30 bore (P-1) and yet another sealed parcel of crime empties for safe custody in the malikana. On the same day, he handed over the above mentioned sealed parcels to Abdul. Ghafoor 226-C (P.W.8) for onward transmission of these sealed parcels to the office of Chemical Examiner and the Forensic Science Laboratory Lahore. Allah Ditta appeared as P.W.5 and stated that at the pointation of the appellant he witnessed the recovery of the pistol-.30 (P-1) and three live rounds. Rehmat Ali complainant (P.W.6) and Muhammad Hanif (P.W.7) furnished the ocular account as narrated in the F.I.R. Muhammad Hanif (P.W.7) further stated that he along with Bashir Ahmad (P.W. Since given up) identified the dead body of Mukhtar Ahmad (deceased) at the time of post mortem examination and after post mortem examination Qameez P-1, Shalwar P-2 and Vest P-3 were handed over to the Investigating Officer,Abdul Ghafoor 226-C appeared as P.W.8 and stated that he escorted the dead body of Mukhtar Ahmad (deceased) to the Tehsil Headquarters Hospital Pattoki for autopsy. On 23-12-2002 Moharrar handed over to him two sealed parcels one said to contain blood-stained earth and other was of empties of.30 bore pistol for onward transmission to the Office of Chemical Examiner and Forensic Science Laboratory. The parcel of blood-stained earth was deposited whereas the other parcel was returned with the objection which was handed over to the Moharrar on the same day. On 28-12-2002 he was again handed over a parcel for depositing the same in the Forensic Science Laboratory, which was-deposited on the same day. Muhammad Siddique S.-I., who investigated the case appeared as P.W.9 and narrated the various steps taken by him during the course of investigation. Learned Deputy District Attorney vide his statement dated 29-1-2004 gave up Bashir Ahmad (P.W.) being medically unfit and Muhammad. Sarwar (P.W.) being won over by the accused. On 12-3-2005 after tendering in evidence report of Chemical Examiner (Exh.PL), report of Serologist (Exh.PM) and report of Forensic Science, Laboratory (Exh.PN) learned Public Prosecutor closed the prosecution evidence. Statement of the appellant under section 342, Code Criminal Procedure, was recorded on 26-3-2005. To a question as to why the case against him and why the P.Ws. Had deposed against him, the appellant replied as under:- "On the day of occurrence at the relevant time there was exchange of firing between two parties on playing bands at the shrine of Baba Mangat Ali. One stray bullet got hit deceased and he died instantiouslly. I reached at the place of occurrence soon after the occurrence. By that time parties who had exchange firing went away. People playing band and so many other people were present there except the P.Ws. Of this case. Some one wrongly informed the P.Ws. At their home that deceased has been done to death by me. Later on, I came to know that one Arif son of Siraj Din with whom, I had a scuffle two days prior to the occurrence had managed to impart this wrong information to get me falsely implicated in this case. Complainant of this case without any confirmation from the persons playing band as well as present at the scene of occurrence immediately lodged the F.I.R. -implicating me therein on the basis of wrong information. Having learnet the facts complainant demanded huge amount exonerating me in the instant case. -Being orphan, I failed to pay the consideration hence, complainant along with his real uncle stick to the false story of F.I.R. It is pertinent to mention that the real father of deceased namely Bashir Ahmed after having learnt the true facts of the case declined to appear as witness to support the contents of the F.I.R. Because of the fear of God Almighty. I am innocent in this case and has falsely been implicated merely on suspicion." The appellant did not appear as his on witness as provided under section 340(2), Code of Criminal Procedure and he did not produce any witness in his defence.
6. After conclusion of the trial, the learned trial Court convicted the appellant as detailed above.
Hence this appeal.
7. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that there is a -contradiction between the ocular account and medical evidence inasmuch as according to the site plan (Exh.PB and Exh.PB/1) the deceased was fired from 9 karams whereas there is blackening and burning around the wound which suggests that he was fired at from a very close range; that the Investigating Officer has admitted that the rough site plan was drafted on the information furnished by the eye-witnesses; that Rehmat Ali complainant (P.W6) works in a mill and his duty hours are from 8-00 a.m. To 4-00 p.m. And as such his presence at 4-15 p.m. At the place of occurrence is highly improbable,' therefore, he is a chance witness and his testimony, if it is to be believed, requires strong independent corroboration, which is missing; that as far as statement of Muhammad Hanif (P.W.7) is concerned his presence at the place of occurrence is also not proved; that the recovery of pistol (P-1), crime empty and positive report of the Forensic Science Laboratory have no evidentiary value because the crime empty and pistol were sent to the Forensic Science Laboratory on the same day i.e. 28-12-2002, which is clear from the report of Forensic Science Laboratory. (Exh.PN); that even the prosecution has not produced any witness to prove that the pistol was deposited in the Forensic Science Laboratory on 28-12-2002; At the end, learned counsel for the appellant has argued that if the court is not persuaded with arguments regarding acquittal of the appellant, then it is not a case of capital punishment as there was no previous enmity between the parties; that the motive set out in the F.I.R.. Is trivial in nature; that Rehmat Ali (P.W.6) has admitted that when he reached at the spot quarrel was taking place between the deceased and the appellant and same was the case of Muhammad, Hanif (P.W.7); that there was no allegation of repetition of firearm injury on the person of the deceased by 'the appellant.
8. On the other hand, learned Deputy Prosecutor-General, appearing on behalf of the State opposes this appeal on the grounds that it was a promptly lodged F.I.R. Wherein the appellant alone is nominated as accused with specific role of causing firearm injury to the deceased; that the prosecution story is duly supported by the medical evidence furnished by Dr. Mehmood Ahmad Nasir (P.W.1); that recovery of the weapon of offence i.e. Pistol was effected at the pointation of the appellant, which was further corroborated by the positive report of the Forensic Science Laboratory (Exh.PN); that the witnesses of the ocular account have no enmity, for false implication of the appellant and even otherwise substitution in such like cases is a rare phenomenon. He prayed that appeal of the appellant be dismissed and murder reference be answered in the affirmative.
9. We have heard learned counsel for the appellant as well as the learned Deputy. Prosecutor- General for the State at a considerable length and have also gone through the record very minutely.
10. In this case the occurrence took place on 14-11-2002 at 4-15 p.m. The matter was reported to the Police on the same day within half an hour through statement (Exh.PE) of Rehmat Ali complainant (P.W.6), recorded at 4-45 p.m. Upon which formal F.I.R. (Exh.PC) was registered through Rappat No.21 at 5-5 p.m. In the F.I.R. All necessary details of the occurrence are duly mentioned. Same is the position of the inquest report (Exh.PH). Distance between the place of occurrence and the Police Station is one kilometer. Therefore, we hold that the F.I.R. Was recorded promptly, which rules out any chances of false implication and also establishes the fact that the complainant of the case has witnessed this occurrence and he was not a chance witness. Even according to the defence version Rehmat Ali complainant (P.W.6) was working in a factory and his duty hours were from 8- 00 a.m to 4-00 p.m., therefore, his presence at the place of occurrence at 4-15 p.m. Is not improbable. As far as the other witness namely Muhammad Hanif (P.W.7) is concerned, he is also resident of the place which is close place where the occurrence took place. The ocular account is fully supported by the medical evidence. As far as distance between the deceased and the appellant is concerned, both the witnesses of the ocular account i.e. Rehmat Ali (P.W.6) and Muhammad Hanif (P.W.7) have fully explained that the deceased was fired at by the appellant from a distance of 2-3 feet, therefore, the distance between the appellant and the deceased as mentioned in the site plan (Exh.PB and Exh.PB/1) is not material.
11. Rehmat Ali complainant (P.W.6) is the real brother of the deceased and Muhammad Hanif (P.W.7) is the maternal uncle (chacha) (sic) of deceased. They have given plausible explanation for their presence at the place of occurrence, which is further corroborated by the other circumstances i.e. Timely lodging of the (Exh PC) and the inquest report (Exh.PH). Though both the witnesses are related to the mere relationship deceased but ere relationship of the witnesses is not sufficient to discard their evidence. In this respect we respectfully refer to the case of "HAP v. The State" (2010 SCM R 650) wherein the Hon'ble Supreme Court has observed as under:- "Both the ocular witnesses undoubtedly 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." Moreover both these witnesses have no previous enmity with the appellant and there is no reason of his false implication by them in this case.-It is a cage of single accused and in such like cases it is improbable that kith and kin of the deceased would let of the real culprit and substitute some innocent person. Here we refer to the case of "Khalid Saif Ullah v. The State" (2008 SCM R 688) wherein.
A Hon'ble Supreme Court of Pakistan observed as under:- "Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murdei of their relations left of by involving innocent persons.
In this context,' reference can usefully be made to the case of Irshad Ahmad and others v. The State and others (PLD 1996 SC 138)."
32. The ocular account furnished by Rehmat Ali complainant and Muhammad Hanif (P.W.7) is fully corroborated by the medical evidence furnished by Dr. Mehmood Ahmad Nasir (P.W.1), Medical Officer, Telisil Headquarters Hospital Pattoki, who while appearing in the witness box stated that he conducted post mortem examination upon the dead body of Mukhtar Ahmad (deceased) on 15-11-2002, and noted the following injuries on the person of the deceased:-- "(1) A lacerated wound of size 1 x 1 cm margins inverted burning and blackening was present around the wound in center of back of neck, 5-cm at the end of back hair, 13-cm from right ear.
(2) A lacerated wound of size 2 x 1 cm margins everted on left side of face 8-cm from the nose, 4- cm from left ear." According to P.W.1 the deceased had died due to shock and haemorrhage and puncturing of main vessels of neck. Probable duration between injury and death was within few minutes and between death and post mortem was within 15-20 hours.
13. Adverting to the evidence of recovery of the weapon of Offence i.e. Pistol (P-1), empty rounds, crime empty and positive report of Forensic Science Laboratory (Exh.PN). Admittedly the empty was recovered from the place of occurrence on 14-11-2002. According to the statement of Tabassam Hussain 866-C (P.W.4) the above articles remained in the custody of the Investigating Officer for 39 days and were handed over to Abdul Ghafoor 226/C (P.W.8) on 23-12-2002 for delivering the same in the office of Forensic Science Laboratory and were ultimately deposited in the Forensic Science Laboratory on 28-12-2002.
In the case titled "Mushtaq and 3 others v. The State" (PLD 2008 Supreme Court 1), while dealing with the question of sending the crime empties and the weapon of offence together to the Forensic Science Laboratory, the Hon'ble Supreme Court at page 5 observed as under:-- "10. A critical analysis of the prosecution evidence and the statement of eye-witnesses would reveal that no specific role of firing has been assigned exclusively to Mushtaq (appellant) but on the contrary the eye account is demonstrative of the fact that firing was made by all the accused persons. We have no hesitation in our mind to hold that Shahid,. Sodagar, Muhammad Khan and Mushtaq (appellants) had participated in the occurrence which resulted in the death of Jamil. In the judgment impugned no reasoning whatsoever has been given that as to why the case of Mushtaq has been distinguished from the rest of the accused persons in the absence of any distinctive feature. The learned Deputy Prosecutor-General was asked pointedly that why the sentence of death should be kept in intact when on the basis of similar evidence which has been converted to that of life imprisonment in case of Sodagar, Shahid and Muhammad Khan but no answer could be given except the positive report of Forensic Science Laboratory which cannot be taken into consideration for the simple reason that crime weapon and empties were sent together to the Forensic Science Laboratory. And therefore, the positive report of Forensic Science Laboratory has rightly been rejected by the learned High Court with the following observations:- "30. These recoveries do not provide much strength to the case of the prosecution because the crime empties recovered from the spot were not 'dispatched on the day of recovery and were sent with the weapons recovered from the spot on the same day." But even if the report of the Forensic Science Laboratory (Exh.PN), is excluded from consideration, the prosecution story stands fully proved the ocular account coupled with the medical evidence.
14. As far as quantum of sentence is concerned, we have noted that it is case of the prosecution that there was no previous enmity between the deceased and the appellant and the occurrence took place suddenly on a petty matter and it is not clear what exactly happened between the deceased or the appellant. As discussed in the 'preceding paragraph report of the Forensic Science Laboratory (Exh.PN) is also of no help to the prosecution and there is no allegation of repetition of fire shot.
The Hon'ble Supreme Court of Pakistan in the case titled "Muhammad Arshad and 2 others V. The'
State" (PLD 1996 Supreme Court 122). At page 127 observed as under:-- "10. We first take up the question of sentence of Arshad appellant under section 302, R.P.C. He has been awarded death sentence on the charge of murder which undoubtedly is a normal penalty for the offence of murder but in appropriate cases where some extenuating circumstances are available, the Courts have the discretion to award lesser punishment of imprisonment for life provided under section 302, P.P.C. Now, in the present case, there are circumstances fOrthcoming from the record which could be taken as extenuating/ mitigating circumstances for the purpose of awarding lesser sentence but the learned Courts below have not duly attended to them when considering the question of sentence to be imposed on the appellant. It is an admitted position that there existed no background of any previous enmity or deep-rooted hostility between the appellants and the deceased. There was only a minor dispute between them regarding the demarcation of their adjacent plots which resulted in the unfortunate occurrence. It is also in evidence that the act of firing by Arshad appellant at the deceased was preceded by a dialogue between the accused and the deceased followed by a scuffle/ grappling between Afzal accused and the deceased and the pelting of stones by the daughters of the deceased at Afzal accused who as a result sustained some injuries. It is also significant that Arshad appellant fired only 'one shot and did not repeat it. All these factors in our view cumulatively make out a case for mitigation of sentence.
We, therefore, hold that the ewe= penalty of death awarded to Arshad appellant was not called for and the lesser sentence of life imprisonment would meet the ends of justice." By, now it is well recognized principle of law that the accused is entitled for the benefit of any doubt as an extenuating circumstance, while deciding question of sentence. We, here, respectfully refer to an observation of the Hon'ble Supreme Court of Pakistan in the case of "Mir Muhammad alias Miro v.
The State" (2009 SCM R 1188) wherein at page 1191, the Hon'ble Supreme Court of Pakistan has emphasized as under:-- "(9) It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
15. Apart from this, 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 110. In the said judgment at page 119, the honourable apex Court has been pleased to hold as under:- "....The difference of punishment for Qatl-e-and 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 discretion 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, may award the offender the punishment of death or imprisonment of 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 F 2203), Muhammad Akram v. State. (2003 SCM R 855) and Abdus Salam v. State (2000 SCM R 338)".
The above view was reiterated in another judgment of the Hon'ble Supreme Court of Pakistan reported as "Sharafat Ali Khan v. The State" (2010 SCM R 1205), wherein, at page 1209, the august Court was pleased to observe as under:-- "In Muhammad Riaz and another v. The State (2007 SCM R 1413) while considering the penalty for an act of commission of qatle-eamd it was observed "no doubt, normal penalty for an act of commission of qatl-e-and provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case. Reference in the context may also be made to Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SCM R 502)."
16. In this backdrop of the situation, we hold that it is not a case of capital punishment. We accordingly, while maintaining the conviction under section 302(b); P.P.C.
Alter the sentence of Muzaffar alias Billoo appellant from punishment of death to imprisonment for life. The amount of compensation and the sentence of punishment in default thereof, as ordered by the learned trial Court, is maintained. The appellant is also extended the benefit of section 382- B, Code of Criminal Procedure.
17. Murder Reference No.496 of 2005 for confirmation or otherwise of the sentence of death awarded to Muzaffar alias Billoo appellant is answered in the NEGATIVE and the sentence of death is NOT CONFIRMED.