JUDGMENT MUHAMMAD ANWAARUL HAQ, J.---Qadir Khan, appellant was tried in case F.I.R. No.1494, dated 14-12-2004, registered at Police Station Sadar, Faisalabad in respect of an offence under section 302, P.P.C. After conclusion of the trial, learned trial Court vide, its judgment-dated 22-6- 2005 has convicted and sentenced the appellant as under:-- Under section 302(b), P.P.C. To 'Death' for committing Qatl-e-Amd of Muhammad Saleem. He was also directed to pay Rs.1,00,000 (rupees one lac only) - as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default thereof to undergo six months' Simple Imprisonment.
2. Feeling aggrieved, the appellant has challenged his conviction and sentence through Criminal Appeal No. 1281 of 2005, whereas learned trial Court has transmitted Murder Reference No. 635 of 2005 for confirmation or otherwise of 'Death' sentence of the appellant. Both these matters being integrated are being disposed of together.
3. Prosecution case in brief unfolded in F.I.R. (Exh. PB/1) by Ronak Ali complainant (P.W.4) is that complainant along with Zulfiqar came to meet Muhammad Saleem alias Babar on 13-12-2004 at about 7-30 p.m. Qadir Khan also came to meet his brother Muhammad Saleem and stayed there.
At the mid of the night complainant got up on hearing whispering and quarrelling of his brother and Qadir Khan. Complainant switched on the light and saw Qadir Khan was forcing his deceased brother for sodomy. Qadir Khan inflicted a knife blow at the left side of the chest of Muhammad Saleem alias Babar. He threatened to kill if anyone came near to him he also said that he loves Babar very much and they have decided to live and die together and inflicted knife blows on his on abdomen. When witnesses tried to catch him he ran away while brandishing his knife. Muhammad Saleem in an injured condition taken to hospital for his treatment but he succumbed to the injuries.
Motive behind the occurrence mentioned in the F.I.R. Was that Qadir Khan wanted to establish illicit relations with Muhammad Saleem.
4. On 14-12-2004, after receiving information about present occurrence, Muhammad Amin, S.-I.
(P.W.9) proceeded to Allied Hospital, he inspected the dead body prepared the injury statement (Exh. PF), inquest report (Exh. PG), and sent the same for autopsy. He visited the place of occurrence; secured blood-stained earth (Exh. PC) sketched rough site-plan (Exh. PJ) of the place of occurrence. On 19-12-2004, he had formally arrested Qadir Khan appellant who thereafter, led to the recovery of knife P3 which was taken into possession vide memo (Exh. PD).
5. After completion of investigation, challan was prepared and submitted before the learned trial court, charge was framed against the appellant on 24-2-2005 to which appellant pleaded not guilty and claimed trial.
6. To substantiate the charge the prosecution has examined nine witnesses in total out of which Dr. Altaf Pervaiz Qasim (P.W.6) provided medical evidence, Muhammad Amin, S.-I. (P.W.9) conducted investigation of this case. Ronak Ali complainant (P.W.4) and Zulfiqar (P.W.5) have furnished ocular account.
7. On 14-12-2004 Dr. Altaf Pervaz Qasim (P.W.6) conducted the post mortem examination on the dead body of Muhammad Saleem alias Babar and observed as under:--
(1) A stab wound 2 cm x 1 1/2 cm on front of left chest at a distance of 10 cm away from midline and 3 cm below the left nipple. Corresponding cut was present on qameez. The stab entered the left chest through 4th inter costal space, injured the plura, perforated the left lung and heart through and through, chest cavity was full of blood.
In his opinion death was caused by Injury No. 1, inflicted by sharp-edged weapon leading to hemorrhagic shock, which was ante-mortem and sufficient to cause death in ordinary course of nature.
The probable time between injuryand death was immediate while the time elapsed between death and post-mortem was about 1218 hours.
8. The learned Special Public Prosecutor gave up Aamer Shehzad being unnecessary on 20-4-2005 on the same day he tendered in evidence reports of Chemical Examiner about blood-stained cotton (Exh. PK) and report of Serologist (Exh. PK/1), report of Chemical Examiner regarding blood- stained knife and that of Serologist (Exh.PL and PL/1) and closed the prosecution evidence.
9. The 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?), he replied as under:-- "Qadir Khan runs Hotel at Chak No. 209/RB in front of Aljanat Factory. Muhammad Saleem deceased and Aamer Shehzad were also working in Al-Janat Factory. Both were used to take meal from the Hotel of Qadir Khan on borrowed basis and the deceased and Aamer Shehzad to pay the charges of hotel at the expiry of month. That on 13-12-2004 Qadir Khan went to Muhammad Saleem deceased and Aamer Shehzad for getting money charges of their meal on the call of Muhammad Salem deceased. That on the request of Muhammad Saleem that he was too late at night, please stay and sleep there. Muhammad Saleem deceased and Aamer Shehzad slept in one cot and Qadir Khan slept another cot, in midnight I heard that Aamer Shehzad was compelling Muhammad Saleem for illicit relations. Qadir Khan tried to intervene between Aamer Shehzad and Muhammad Saleem deceased. Aamer Shehzad inflicted knife blow to Muhammad Saleem deceased and Qadir Khan too. Mobile police came there and took Qadir Khan injured along with Muhammad Saleem to hospital on their vehicle with the help of one labourer Muhammad Nawaz.
Aamer Shehzad misguided the P.Ws and concocted the fake story to save himself. P.Ws. Were not present at the time of occurrence. They were called after the occurrence by the police to strengthen the prosecution story with the connivance of Aamer Shehzd. I tender my MLC in my defence".
The appellant did not make statement under section 340(2) Cr.P.C.; however, he produced his on M.L.C. Exh. DA in his defence. Learned trial Court vide its judgment, dated 22-6-2005 found the appellant guilty and convicted and sentenced him as mentioned above, hence, these matters before this Court.
10. The learned counsel for the appellant, in support of this appeal, contends that there was a delay in registration of the F.I.R. And the same was recorded after the post mortem examination with some deliberations and consultations; that both the eye-witnesses, Ronak Ali (P.W.4) and Zulfiqar (P.W.5) are admittedly residents of Bhakkar which is, at a distance of 4-30 hours drive from the place of occurrence, and they remained fail to advance any plausible explanation for their presence at the spot; that Aamer Shehzad was the most natural and important witness of this incident as admittedly occurrence took place in his quarter where he was residing and it is clear from the site-plan (Exh. PH) that the deceased was sleeping with Aamer Shehzad on the same cot, this fact has further been admitted by the Investigating Officer while appearing as P.W.9. That according to his investigation the deceased and Aamer Shehzad were sleeping on one cot; but his evidence was withheld by the prosecution and he has been given up being unnecessary, and an adverse inference within the meaning of Article 129(g) of Qanun-e-Shahadat Order, 1984 shall be drawn against the prosecution that the story of the prosecution is highly improbable as the allegations levelled against the appellant does not appeal to a prudent mind; that keeping the plea of appellant during the trial and prosecution version in juxta position, the version of the appellant appears to be more plausible; that the appellant was medically examined on 14-12-2004 at 2-40 a.m. On the same day through police; that the police had confined the appellant illegally from 14-12-2004 to 19-12-2004 and his arrest was shown on 19-12-2004; that the prosecution has failed to prove its case and in any case it was not a case of capital punishment because it is not known and shrouded in mystery as to what exactly happened prior to the occurrence.
11. On the other hand, learned Deputy Prosecutor-General while opposing this appeal contended that the F.I.R. In this case was promptly lodged with all the details of the incident; that both the eye- witnesses P.W.4 and P.W.5 are the most natural witnesses; and their presence is fully established from the fact that they remained consistent on all the material particulars mentioned in the F.I.R.; that knife P-3 was recovered at the instance of the appellant which was taken into possession through Exh. PD and that the report of the Chemical Examiner and Serologist are positive; that the appellant has not been able to give any reason for his false implication; that as far as specific plea of the appellant is concerned that cannot be believed because of the reason that he has' not produced any evidence in support thereof and even he himself has not opted to make statement on oath as required under section 340(2), Cr.P.C. And that there was no mitigating circumstance in this case, therefore, this appeal be dismissed and the Murder Reference be answered in the affirmative.
12. We have heard the learned counsel for the parties at length, and have given anxious consideration to their arguments and have also scanned the evidence on record with their able assistance.
13. Occurrence in this case took place on the intervening night between 13th and 14th of December, 2004. The matter was reported to the police at 1-20 a.m. On 14-12-2004 at the bridge of Rajbah Thaddi Wala whereas formal F.I.R. Exh.PB/1 was recorded at 1-35 a.m. At the police station at a distance of 12 km from the place of occurrence. The post-mortem examination was conducted on 14-12-2004 at 3-00 p.m. Presence of Ronak Ali (P.W.4) and Zulfiqar (P.W.5) at the place of occurrence has fully been established, their relationship with the deceased further suggests that their presence in the house with the deceased was quite natural, they remained consistent on all material aspects of the case even after a lengthy cross-examination. Minor variations in minute details of the incident are insignificant, and do not effect their straightforward, coherent and natural narration of the whole incident. The medical evidence and recovery of weapon of offence coupled with positive reports of Chemical Examiner and that of Serologist further corroborate ocular account. We, therefore, hold that the eye-witnesses were present at the time of occurrence and have witnessed the occurrence.
14. In the aforesaid circumstances of the case, we are of the considered view that the prosecution has proved its case against Qadir Khan appellant beyond any shadow of doubt to maintain his conviction under section 302(b), P.P.C.
15. So far as the question of quantum of sentence is concerned, there are certain extenuating circumstances in this case persuading us to take a lenient view in this regard. It is the case of the prosecution that the appellant has himself inflicted injuries on his person during the occurrence whereas appellant has attributed his injuries to Aamer Shehzad. The appellant had been medically examined on the same day through police. MLR (Exh. DA) reflects that the injuries were fresh and were result of some fight as stated before the doctor. It has come on the record that the deceased and Aamet Shehzad were sleeping on one and the same cot, but said Aamer Shehzad has not been produced and thus it remained shrouded in mystery as to what exactly happened between the deceased and the appellant at the time of occurrence. Police even after Medico-legal examination of the appellant immediately after the occurrence. Mysteriously deferred his arrest for five days. All these aspects of prosecution case in our view are extenuating circumstances in favour of the appellant in the peculiar circumstances of this case.
16. It is by now well-established principle that prosecution has to exclude all extenuating circumstances in favour of the accused before praying for his death sentence. We, here, respectfully refer an observation of the Hon'ble Supreme Court of Pakistan in the case of Ansar Ahmad A 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.
In the case of Mir Muhammad alias Miro v. The State (2009 SCM R 1188) 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 omost 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."
17. In view of the above, we are of the considered view that the extreme penalty of death awarded to the appellant is too harsh in the circumstances mentioned above and the lesser sentence of Imprisonment for Life would meet the ends of justice, therefore sentence of death of the appellant is converted into Imprisonment for Life. The amount of compensation as ordered by the learned trial court and imprisonment in default thereof shall remain intact. Benefit of section 382-B, Cr.P.C.
Shall also be extended to the appellant. With the above modification in the quantum of sentence this Criminal Appeal No. 1281 of 2005 is partly allowed.
18. Murder Reference No.635 of 2005 is answered in the Negative and death sentence of Qadir Khan appellant is Not Confirmed.
Sentence reduced.