MUHAMMAD ANWAARUL HAQ, J.---Punnam Khan appellant was tried in case F.I.R. No, 242, dated 23-4-2002, registered at Police Station Baghbanpura, under section 302, P.P.C. At the conclusion of the trial, the learned trial Court vide its judgment dated 30-9-2004, had convicted Punnam Khan appellant under section 302(b), P.P.C. and sentenced him to 'Death' as Ta'zir for the Qatl-eamd of Muhammad Sadiq. He was also directed to pay Rs,50,000 (Rupees fifty thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
2. Feeling aggrieved, the appellant Punnam Khan while challenging his conviction and sentence has filed Criminal Appeal No, 458-J of 2006, whereas learned trial Court has transmitted Murder Reference No,918 of 2004 for confirmation or otherwise of the 'Death' sentence of the appellant.
Both these interlinked matters are being disposed of together through this single judgment.
3. Prosecution story in brief un-folded in the F.I.R. (Exh. PA) by Mst. Aneela Sadiq complainant (P.W.1) is that on 23-4-2002 at about 6-45 a.m. the complainant was present at her house when her brother Nauman Haider (P.W.2) came to her and informed that he and Umar Hayat were present with his father Muhammad Sadiq at the roof of the shop of his father situated at Shalamar Chowk, where at about 6-30 a.m. Punnam Khan accused armed with a Churri came there and inflicted a blow of Churri to his father on the left side of his ribs, they tried to apprehend the accused but he fled away from the spot. Complainant in the F.I.R. further stated that his brother Nauman Haider while leaving behind Umar Hayat at the spot, rushed to inform her about this occurrence, on this information, complainant and Nauman Haider rushed towards Chock Shalamar and found their father, smeared in blood on the roof of the said shop, they immediately shifted and got him admitted in Shalimar Hospital for treatment. In the hospital, complainant asked Muhammad Sadiq (deceased) about the incident, who replied that Punnam Khan appellant on the asking of somebody else, had injured him while inflicting a Churri blow. Muhammad Sadiq succumbed to the injuries in the hospital. It was further alleged in the F.I.R. that this occurrence was witnessed by Nauman Haider (P.W.2) and Umar Hayat (given-up P.W.).
' The motive behind the occurrence was introduced by the complainant while appearing before the Court as P.W.1, that the appellant was an employee in the shop of her father Muhammad Sadiq (deceased), who had dismissed him from his services and on this grudge, the appellant killed his father.
4. On 23-4-2002 after registration of this case, Noor Ali S.I. (P.W.13) reached Shalimar Hospital, Lahore where he found the dead body of Muhammad Sadiq (deceased) lying in emergency ward, he prepared inquest report (Exh. PG), recorded statements of the P.Ws., sketched the rough site- plan (Exh. PH) and sent the dead body for autopsy. On 27-5-2002 he obtained proclamation of the appellant from the trial Court, thereafter he was transferred from the Investigation Cell.
' On 8-8-2002 investigation of this case was entrusted to Muhammad Mazhar Iqbal Inspector (P.W.14), on the same day Punnam Khan, appellant surrendered himself through a counsel before area Magistrate. On 10-8-2002 during investigation of this case while in police custody appellant led to the recovery of weapon of offence i.e, blood stained Churri (P-1) which was taken into possession by the Investigating Officer.
5. Charge was framed against the appellant on 11-4-2003, to which he pleaded not guilty and claimed trial.
6. To substantiate the charge, prosecution had examined fourteen witnesses in total, out of which, Dr. Maqbool Hussain (P.W.11) provided medical evidence; Mst. Aneela Sadiq, complainant (P.W.1) appeared to prove F.I.R. she further provided evidence regarding dying declaration of the deceased, and Nauman Haider (P.W.2) furnished the ocular account. Noor Ali S.I. (P.W.13) and Muhammad Mazhar Iqbal, Inspector (P. W.14) had conducted investigation of this case.
7. Post Mortem examination on the dead body of Muhammad Sadiq was conducted by Dr. Maqbool Hussain, (P.W.11) on 23-4-2002 and observed following injury on his person:-- ' Stab wound on the left side of abdomen measuring 4 x 1.5 cm having clear margins 13.5 cm left umbilicus at 3 O'clock position.
' In his opinion, injury was ante-mortem and was caused by sharp edged weapon. The cause of death in this case was damage to the stomach, left kidney and mesentery under injury No,1, leading to hemorrhage and shock.
' Probable time elapsed between death and post mortem was 4 to 12 hours.
8. Appellant was examined under section 342, Cr.P.C. He denied the allegation and professed his innocence. While answering to question, "Why this case against you and why the P. Ws. have deposed against you?" Punnam Khan, appellant replied as under:-- "That actually the murder of Muhammad Sadiq was committed by his own son namely Nauman at the instigation of his Mamon Umar Hayat, as said Umar Hayat was under the debt of the deceased as the deceased was pressing hard to Umar Hayat for the return of the said amount, whereupon said Umar Hayat hatchet a plan, his nephew (son of deceased) was in the habit of drinking and usually he was ousted from the house by his father, so, Umar Hayat offered him alcohol and when Nauman was under state of intoxication, Umar Hayat instigated him to kill his father if he want to lead happy life, who did so and at the time of occurrence only these two persons were present that is why, they instead of shifting the injured to the hospital, immediately waited till the injured breathed his last and then shifted him to the hospital. I was roped into this case as the complainant herself had joined hand with her brother and maternal Uncle Umar Hayat to save them.
' I was involved in this case under discussion as I belonged where the occurrence took place. My father worked hard to meet both hands at Mian Meer Market Saddar, Lahore Cantt. being labourers and previously no case was registered against me. I also used to help my father in his work, on the day of occurrence I was not present at home but was with my father in Mian Meer Market (Lunda Market) and through night we both father and son, remained busy with the work. That the above narrated facts came into my knowledge through residents of locality. 2/3 persons from the said locality accompanied my father to the police station to bring into light the true facts but the I.O. threatened them to refrain them from producing defence in my father, then they will be involved in case under section 216, P.P.C. Further more the I.O. also harassed my father to refrain from bring anything in my defence or witnesses in my defence. In fact Nauman P.W. and Umar Hayat (given up) are the persons of ill repute and due to their highhandedness, the people refused to appear in my defence. The complainant also hide the truth fact stating that I was not known to them but the reality is that I along with my family members as well as my relatives have family as well as visiting terms with the complainant's family and we used to invite each other at the marriage ceremonies.
In this respect I produce photographs Mark-A to Mark-E in my defence. I also produce my birth certificate Mark-F, issued by City District Government, Lahore. The complainant, Nauman and Umar Hayat in collusion with each other have made me a scapegoat."
' The appellant did not make statement under section 340(2), Cr.P.C. but produced some documents (Mark-A to Mark-E) in his defence. The learned trial Court vide its judgment dated 30- 9-2004, found Punnam Khan, appellant guilty and convicted and sentenced him as mentioned above.
9. Learned counsel for the appellant in support of this appeal contends that prosecution story is highly improbable and doubtful in nature; that circumstances suggest that it was an unwitnessed occurrence and thereafter a false case was concocted against the appellant; that statement of Mst. Aneela Sadiq complainant (PW-1) is of no use for the prosecution because she has not witnessed the occurrence and the statement regarding the dying declaration allegedly made by her father is also not reliable; that the most important witness of this occurrence Umar Hayat, real maternal uncle of the complainant was given up as having been won over, therefore adverse inference has to be drawn under Article 129(g) of the Qanun-e-Shandat, Order, 1984; that recovery of Churi (P-1) taken into possession vide recovery memo. (Exh. PC) is also of no avail for the prosecution as the other recovery witness namely Muhammad Ishfaq was given up and Churri was allegedly recovered after many days of the occurrence; that there is only one statement against the appellant i.e, statement of Nauman Haider (P.W.2) which is not confidence inspiring because of unnatural conduct of this witness who left his father in injured condition and went to inform his sister instead of shifting him to the hospital and even otherwise, story of the prosecution is not believable because if two witnesses were present at the spot, they could easily apprehend the appellant; that the prosecution has failed to prove the motive and it remained shrouded in mystery as to what happened at the time of occurrence. Learned counsel for the appellant lastly contends that the appellant was having immature age of 18 years at the time of occurrence he inflicted only one injury and did not repeat the same and deserves lesser penalty in the circumstances of the case.
10.On the other hand, learned Deputy Prosecutor-General opposes this appeal on the grounds that the appellant as a single accused is nominated in the F.I.R. with specific allegation of giving Churri blow on the person of Muhammad Sadiq (deceased); that the occurrence took place in broad daylight at 6-30 a.m., and the F.I.R. (Exh. PA) was got registered on the same day at 8-25 a.m. with all the necessary details of the unfortunate occurrence duly mentioned by the complainant i.e, real daughter of the deceased and the appellant has not been able to even suggest any enmity with the complainant party; that it is the quality of evidence and not the quantity, which matters in a criminal case and the solitary statement of an eye-witness, if it inspires confidence, can be relied for the conviction; that there is a dying declaration of Muhammad Sadiq (deceased) that is a legal evidence under Article 46 of the Qanune-Shahadat, Order 1984; that the evidence of Nauman Haider (P.W.2) is confidence inspiring supported by medical evidence and positive report of Serologist regarding the weapon of offence Churri recovered at the instance of the appellant; that Mst. Aneela Sadiq complainant (P.W.1) is daughter while Nauman Haider (P.W.2) is son of the deceased, who had no reason whatsoever to involve the appellant having no enmity with him, even otherwise, substitution in such like cases is a rare phenomenon as the appellant has not been able to even suggest any reason for his false implication in this case; that the appellant has killed the deceased in a very brutal manner, therefore, he does not deserve any leniency and is not entitled to any exception hence, appeal of the appellant be dismissed and murder reference be answered in the affirmative.
11.We have heard the learned counsel for the appellant and the learned Deputy Prosecutor- General for the State at a considerable length and have gone through the record with their able assistance.
12.The occurrence took place on 23-4-2002 at 6-30 a.m. matter was reported to the police by.
Mst. Aneela Sadiq complainant (P.W.1) on the same day at 8-00 a.m. and formal F.I.R. (Exh. PA) was recorded at 8-15 a.m. Muhammad Sadiq (deceased) in injured condition was shifted to Shalamar Hospital, Lahore immediately after the occurrence where he died later on. We have noticed that it was a broad daylight occurrence and in the promptly lodged F.I.R. all the necessary details of this unfortunate occurrence have duly been mentioned by the complainant, who is a real daughter of the deceased. There is no previous enmity between the parties and appellant is a single nominated accused in the F.I.R.
13. In order to prove the ocular account prosecution has examined Nauman Haider (P.W.2) real son of the deceased, who has no enmity, with the appellant and we do not find any reason of his false implication by him in this case, his statement is not only straightforward but coherent and consistent on all material aspects of the case. His statement is corroborated by the medical evidence and further strengthened by the recovery of Crime Weapon blood stained Churri, report of Chemical Examiner and of Serologist are positive to prove that the Churri so recovered at the instance of appellant was stained with human blood. Mere relationship of the witness is not sufficient to discredit his testimony. In this respect, we respectfully refer the case of 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."
' Non-producing of other eye-witnesses is also not damaging for the prosecution because it is not the quantity but the quality of evidence that matters, other eye-witnesses Umar Hayat was declared won over by the complainant and that's why he was not produced by the prosecution. It is important to note that appellant has also not opted to call him as a Court Witness or a Defence Witness. Here, we refer the case of Mandoos Khan v. The State (2003 SCM R 884) wherein the Hon'ble Supreme Court of Pakistan has observed as under:-- "It is settled proposition of law that prosecution must produce best kind of evidence to establish accusation against accused facing trial but simultaneously it has no obligation to produce a good number of witnesses because it has an option to produce as many as witnesses which in its consideration are sufficient to bring home guilt against the accused, following the principle of law that to establish accusation, indeed it is not the quantity but quality of the evidence, which gets preference. In forming this view we are fortified with the judgments reported in Allah Bakhsh v.
Shami and others (PLD 1980 SC 225) and Sarfaraz alias Sappi and two others v. The State (2000 SCM R 1758)."
' Even otherwise in the case of a single accused nominated in the F.I.R. it is impossible that near kith and kin would let off the real culprit and shall substitute some innocent person in a murder case.
Here, we refer the case of Khalid Saif Ullah v. The State (2008 SCM R 688) wherein Hon'ble Supreme Court of Pakistan has observed as under:-- "Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off 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."
14.In the light of our above observations, we are of the considered view that prosecution has succeeded in proving its case against the appellant beyond any reasonable doubt and we do not find any convincing reason to interfere with the finding of the learned trial Court regarding the conviction of the appellant under section 302(b), P.P.C. that is quite in accordance with law and we maintain the same.
15.So far as the question of quantum of sentence of the appellant is concerned, we have noted that it is alleged in the F.I.R. that the appellant gave a single Churri blow on the person of Muhammad Sadiq (deceased). We have further noticed that the motive set out by the prosecution does not sound to reason because in the F.I.R. there is no motive alleged by the prosecution but Mst. Aneela Sadiq complainant while appearing before the Court as P.W.1 stated that the appellant was working as servant in the shop of the deceased and the deceased dismissed him from his services, therefore, the appellant on this grudge killed the deceased, which suggests that there was no serious enmity between the parties but in the circumstances, what happened just before the occurrence is shrouded in mystery and reason of Qatl-e-amd introduced through dying declaration of the deceased by his daughter P.W.1. has otherwise lost its relevance because no question regarding this dying declaration was put to the appellant in his statement under section 342, Cr.P.C.
16.In view of the above we are convinced that appellant who was about eighteen years of age at the time of occurrence 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., we very respectfully refer here the case of Mir Muhammad alias Miro v. The Sate (2009 SCM R 1188) wherein the Hon'ble Supreme Court of Pakistan has emphasized as under:-- "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. In the case of Mst. Bevi v. Ghulam Shabbir and another 1980 SCM R 859, it was ruled by this Court" that the principle underlying the concept of benefit of doubt can in addition to the consideration of question of guilt or otherwise, be pressed also in matter of sentence."
' In another case Ansar Ahmad Khan Barki v. The State and another (1993 SCM R 1660), Hon'ble Supreme Court of Pakistan has held that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death.
17.We, therefore, while maintaining conviction of Punnam Khan, appellant under section 302(b), P.P.C., alter his sentence of Death into Imprisonment for Life. The amount of compensation as ordered by the learned trial court shall remain intact. Benefit of section 382-B, Cr.P.C. is also extended to the appellant. Criminal Appeal No, 458-J of 2006 is partly allowed with the above modification in the quantum of sentence.
18.Murder Reference No, 918 of 2004 is answered in the <u>Negative </u>and death sentence awarded to Punnam Khan is <u>not confirmed.</u>