Manzoor Ahmad Malik, J.--This judgment shall dispose of Criminal Appeal No, 337/04 (Umar Shahid vs. The State) and Murder Reference No, 217/04 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant, as they arise out of the same judgment dated 5.3.2004 passed by the learned Additional Sessions Judge, Shakargarh, District Narowal, whereby, appellant was convicted for the murder of Abdul Majad deceased under Section 302, PPC and sentenced to death with a further direction to pay a compensation of Rs, 1,00,000/- as provided under Section 544-A Cr.P.C. to the legal heirs of the deceased. However, benefit of doubt was extended to Muhammad Aslam @ Achhi co-accused of the appellant by way of acquittal from the charge.
2. Brief facts of the case, as given by PW-6 Azmat Ali (complainant) in the FIR (Exh.PB/1) are that his son Abdul Majad (deceased) was a student of first year and during the last night, the complainant alongwith his family members was sleeping in the Courtyard of their house. According to the complainant, his son Abdul Majad (deceased) and two disabled sons were sleeping in the `Baithak'.
It has been stated by the complainant in the FIR that at about 3.00 a.m. (night), the complainant, Muhammad Amin Javed (maternal uncle of his children) and his son 'Abdullah @ Ali woke up after hearing noise and saw towards the outer door of the house where appellant Umar Shahid armed with a carbine and an unknown person armed with pistol, were standing. It has further been mentioned in the FIR that when the complainant went in front of them, one accused pointed out his fire-arm towards him while the other accused restrained him. The complainant also stated in the FIR that at that time his son Abdul Majad (deceased) came out of the `Baithak', upon which, ,Umar Shahid appellant fired a shot with Iris carbine at his said son Abdul Majad (deceased) which landed on his left side of chest who fell down and succumbed to the said injury at the spot, whereafter, the accused decamped from the spot. The motive stated in the FIR was that his deceased son Abdul Majad had some photographs which came into the hands of Umar Shahid etc. who used to blackmail the deceased due to which a quarrel took place between his deceased son Abdul Majad and Umar Shahid appellant two weeks prior to the occurrence and the appellant etc. bore a grudge against the deceased on account of that quarrel.
3. During the course of investigation, complainant nominated acquitted co-accused Muhammad Aslam @ Achhi on the same day i,e, the day of occurrence. Both of them were found guilty during the said investigation, whereafter, challan was prepared and submitted before the learned trial Court, copies were distributed to the accused as required under Section 265-C Code of the Criminal Procedure, charge was framed to which accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution produced as many. as 10 witnesses during the trial. The appellant/accused were examined under Section 342 Cr.P.C. They neither 'produced any evidence in defence nor opted to depose on Oath as required under Section 340(2) Cr.P.C. However, the learned trial Court convicted and sentenced the appellant as detailed above.
5. Learned counsel for the appellant contends that the appellant has falsely been involved in this case on account of mala fide of the complainant and the local police; that the ocular account furnished by PW-6 Azmat Ali (complainant) and PW-7 Muhammad Amin Javed is in conflict with the medical evidence because according to both these witnesses, the deceased died instantaneously, whereas, according to PW8 Dr. Muhammad Lateef Afzal, who conducted the post-mortem examination of the dead body of the deceased, time between the death and the injury was given as 15 to 20 minutes; that the post-mortem examination on the dead body of the deceased, as per Exh.PH, was conducted at 12.00 (noon) on 31.7.2002 but according to the said report, the probable time between death and the post-mortem examination was 10 to 12; hours which means that this occurrence took place around 2'O clock at night.
Learned counsel further contends that during the post-mortem examination, certain metallic pieces were recovered from the dead body which were handed over to the police but it did not send those metallic pieces, intentionally, to the Forensic Science Laboratory for examination, rather, those were sent to the laboratory on the application of the appellant and according to the report Exh.PP, those pieces were found to have fired from a rifle; therefore, it is a glaring contradiction between the ocular account and the medical evidence. According to the learned counsel, recovery of carbine is of no avail to the prosecution because no crime empty was taken into possession from the spot.
Learned counsel has vehemently argued that, similarly, the prosecution has not been able to prove motive part of the prosecution story because PW-6 Azmat Ali (complainant) has categorically stated in Court that he did not see the family photographs which were in possession of his deceased son and that even he did not aware qua the place of factum of snatching of those photographs by the appellant from the deceased.
While advancing his submissions learned counsel further contends that the distance between the appellant and the deceased was about five feet and in such a situation, the practical distance between barrel and the deceased come to 2/3 feet but there is no blackening on the body of the deceased which belies the prosecution story; that PW-7 Muhammad Amin Javed claims to be the eye-witness of the occurrence but he has not given any plausible reason or explanation for his presence at the spot at the time of occurrence and that there is a difference between the statements of both the witnesses i,e, PW-6 Azmat Ali (complainant) and PW-7 Muhammad Amin Javed qua the manner of lodging the FIR.
While further advancing his submissions learned counsel submits that as the prosecution has failed to prove its case against the appellant beyond any shadow of doubt, therefore, benefit of doubt be extended to the appellant and that, in the afore-referred circumstances, appellant is entitled to acquittal. At the end, learned counsel submits that if this Court is not convinced with the argument of acquittal of the appellant then it is not a case of capital punishment because it is a case of single shot which was not repeated, motive is not proved and is a night time occurrence.
6. Conversely, the learned Additional Prosecutor General for the State, while vehemently opposing this appeal, contends that the appellant is named in the promptly lodged FIR with a specific role; that the natural eye-witness account was furnished by the prosecution and despite cross- examination the defence could shake nothing from their testimony; that the PWs had no enmity with the appellant to falsely depose against him during the trial; that the ocular account in this case is corroborated by the medical evidence; that no reliance can be placed on the report of the Forensic Science Laboratory about the metallic pieces recovered from the dead body as those were sent to the Laboratory after about one and a half year after the occurrence and there is nothing on record whether those remained in tact during the said period; that even otherwise in such like cases substitution is a rare phenomenon; that the prosecution has proved its case against the appellant beyond any shadow of doubt and that the sentence awarded to the appellant by the learned trial Court be maintained.
7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.
8. Occurrence in this case took place on 31.7.2002 at about 3.00 a.m. (night), the matter was reported to the police at 4.30 a.m. on the same night and the formal FIR was recorded at the same time while the distance between the place of occurrence and the Police Station was 14 furlongs, therefore, in our view it is a case of promptly lodged FIR which rules out consultations and deliberations on the part of the complainant.
9. The ocular account in this case was furnished by PW-.6 Azmat Ali (complainant) who is real father of Abdul Majad (deceased), a young boy of 17/18 years of age. The other eye-witness produced in support of the prosecution case is PW-7 Muhammad Amin Javed, who is real maternal uncle of the deceased.
10.As far as ocular account offered by PW-6 Azmat Ali (complainant) is concerned, it has come on record that the occurrence took place at about 3.00 a.m. (night) in his house. Being head of the family, he was supposed to be present in his house at that time, therefore, his presence at the spot at the time of occurrence cannot be doubted and was quite natural. It was the complainant, before whose eyes, his deceased son was done to death who immediately reported the matter to the police wherein the appellant was named with a specific role of firing at the deceased which resulted into his death. In the cross-examination, no suggestion was put to the said witness whether he was not present at the spot. This witness was a school teacher having no previous criminal antecedents and similar is the position of the deceased. Apart from above, it is not possible that a real father, before whose eyes, his real young son aged 17/18 years was done to death, would let off the real killer and would involve an innocent person because in such like cases substitution is a rare phenomenon. Therefore the evidence of this witness, in our view, is natural, trustworthy and confidence inspiring.
11.So far as evidence of PW-7 Muhammad Amin Javed is concerned, it has come on record that he was not resident of the place where the occurrence took place. Though he claims that he lived in the same Mohallah but he has admitted that he is married and have children, therefore, his presence in the house of the complainant at night time, especially when he has not assigned any reason, is not probable. But, if statement of this witness is excluded from the prosecution evidence, even then, in our considered view, there is sufficient evidence on the record against the appellant to prove that it was he who had fired at Abdul Majad (deceased) and was responsible for his murder.
12.Apart from above, the ocular account furnished by PW-6 Azmat Ali (complainant) in this case is supported by the medical evidence furnished by PW-8 Dr. Muhammad Lateef Afzal who conducted post-mortem examination on the body of deceased and found Injury No, 1 (seven lacerated wounds).
13. Contention of the learned counsel for the appellant that in fact carbine was not used in the occurrence and metallic pieces were recovered from the body of the deceased and report of the Forensic Science Laboratory qua those pieces was that those were fired from a rifle, it has been noted that even no such suggestion was given to this PW- that his son did not receive injury by carbine. Apart from above, PW-6 Azmat Ali (complainant) was not expected to know difference between a shot gun and rifle because it is the job of the experts in the field, therefore, the said argument, which is only technical in nature cannot advance the case of the appellant. It is settled law that conviction on a capital charge can even be maintained on the solitary statement of a witness, though closely related to the deceased if the testimony of the said eye-witness is trustworthy and confidence inspiring because it is the quality which weighs with the Court and not the quantity. In this regard, this Court is fortified by a judgment of the August Supreme Court of Pakistan reported in Allah Bakhsh Vs. Shammi and others (PLD 1980 Supreme Court 225), wherein, at Page 227 of the judgment, it was observed that the general principle, on the other hand, is that even in a murder case conviction can be'based on the testimony of a single witness, if the Court is satisfied that he is reliable. In other words, the emphasis is on the quality of evidence, and not on its quantity". The above view was reiterated in the case of Farooq Khan Vs. The State (2008 SCM R 917), wherein at Page 921, it has been held as under:-- "9. ... The credence of statement of solitary witness has already been examined by this Court in a number of cases. In this context, reference, can be made to Mali v. The State. (1969 SCM R 76), Muhammad Ashraf v. The State (1971 SCMR .350), Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State (1971 SCM R 659) and Muhammad Mansha v. The State (2001 SCM R 199).
Moreover, conviction in any murder case can be based on the testimony of a single witness, if the Court is satisfied that the witness is reliable. In other words, the `emphasis' is on quality of evidence and not on its quantity. In this behalf reliance can be placed on the case of Allah Bakhsh vs Shammi (PLD 1980 SC 225).
10.........
11..... There is a rule that the statement of an interested witness can be taken into consideration for corroboration and mere relationship with the deceased is not 'sufficient' to discredit the Witness, particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of interested witness are set out in Nazir v. The State (PLD 1962 SC 269) and Shehruddin v.
Allhaj Rakhio (1989 SCM R 1461)..." (emphasis supplied)
14.As per FIR and statements of witnesses, the motive in this case was that Abdul Majad (deceased) son of PW-6 Azmat Ali (complainant) had some, photographs which were taken by the appellant who started blackmailing him. The complainant was cross-examined on this aspect of the matter who admitted that he did not see the said family photographs which were in the possession of his deceased son. He has further admitted that he did not know when those photographs were snatched by the appellant from Abdul Majad (deceased) and the said matter was never reported to the police. He has also admitted that he never produced any witness before the police in whose presence those photographs were snatched. Regarding motive, the complainant has further stated that two weeks prior to the occurrence, there was a quarrel between the appellant and Abdul Majad (deceased) but admitted in the cross-examination that the quarrel did not take place in his presence and that the matter was never reported to the police and he was not aware about the place where the quarrel in question took place. He has also admitted that he did not produce any eye-witness of the said quarrel before the police. Another point to be noted is that when the photographs were snatched by the appellant from the deceased and the appellant was blackmailing the deceased in that content, then the question arises why did the appellant kill him. The afore-referred narration of facts suggests that the prosecution has failed to prove motive part of the prosecution story.
15.As far as recovery of carbine from the appellant which was taken into possession through memo. Exh.PE and the recovery of shoes (Exh.PG) are concerned, as no crime empty was taken into possession from the spot, therefore, in the absence of any positive report of the Forensic Science Laboratory, recovery of carbine is of no avail to the prosecution while the prosecution has not produced any evidence to prove that the shoes in question either belonged to the appellant or his acquitted co-accused, so, the said recovery is also of no avail to the prosecution. But, if these recoveries are excluded from the prosecution evidence, even then there is sufficient evidence to connect the appellant with the commission of the offence.
16.The appellant, while appearing before the learned trial Court, in answer to a question "why this case against you and why the PWs have deposed against you", stated as under:-- "Maulvi Ghiasuddin is the leader of Insari Brotheri in Tehsil Shakargarh and he has remained MPA twice. His house is situated near the house of complainant. Complainant also belongs to Insari brotherhood, whereas, Malik Muhammad Tufail had been Chairman of the Municipal Committee and his son Shahid Tufail had also been the Chairman of this Committee. They are the residents of Muhallah Rehmatpura. I and my co-accused also reside in Muhallah Rehmatpura. FIR No, 332/1997 dated 5.10.1997 was got registered by Mst. Muqaddus Bibi against the sons of said Maulvi Ghiasuddin namely Ghulam Mohyuddin and Zaid etc. u/Ss. 302, 457, 148/149 PPC about the murder of her sister at PS Shakargarh and the dead body of the (deceased) was recovered from our Muhallah. Maulvi Ghiasuddin pressed our parents to help him in the case but they refused and Case No, 106/2000 u/S. 302 PPC was registered by Zaid son of Maulvi Ghiasuddin about the Murder of his real maternal uncle against said Muhammad Tufail and Shahid Tufail Ex-Chairman at PS Shakargarh. In this case, said Maulvi Ghiasuddin also exercised his influence on my father and brother to be witnessed for prosecution but they refused and we had been keeping affiliation with said Muhammad Tufail and Shahid Tufail Ex-Chairman. It is an unseen occurrence. Azmat Ali complainant, at the behest of Maulvi Ghiasuddin got this false case registered against us."
17.The above stand of the appellant that he was falsely implicated in this case because of political rivalry of two MPAs, who were dagger drawn against each other in criminal litigation, is highly improbable and is not convincing. Moreso, the said plea does not find support from any evidence.
18. In view of what has been discussed above, we are of the considered view that the prosecution has proved its case against the appellant beyond any shadow of doubt. We have noted that the learned trial Court has convicted the appellant under Section 302 PPC; and omitted to mention either Section 302(a) or 302(b) PPC and certainly it is not a case under Section 302(a) PPC and would fall within the ambit of Section 302 b) PPC, therefore, appellant's conviction under Section 302(b) PPC is hereby maintained as Tazir.
19. After having looked the case from all angles, we have noted that argument of the learned counsel for the appellant qua mitigating aspect of the case has substance because in this case a specific motive was alleged by the prosecution but not proved, immediate cause of incident is shrouded in mystery and only one shot was fired by the appellant. In the case of Noor Muhammad Vs. The State and another (2010 SCM R 97), the Hon'ble Supreme Court of Pakistan, while giving reference to the case of Hakim Ali vs. The State (1971 SCM R 432), has been pleased to quote that though the prosecution is not called upon to establish motive in every case yet once it has set up a motive and failed to establish it, the prosecution must suffer consequence for the same and not the defence.
20.To fortify our view, qua mitigation in a case where motive alleged but not proved and immediate cause of incident being shrouded in mystery, reliance is made to the case of Muhammad Ayaz Khan Vs. Murtaza and Etc. (PLJ 2008 SC 370), wherein, at Page 373, the August Supreme Court was pleased to the observe as under:-- ......The High Court having considered the circumstances leading to the occurrence modified the sentence with the consideration that motive set up by the prosecution was not proved and the immediate cause of the occurrence was also not unfolded. This is correct that motive is not always an essential element of murder and weakness or absence of motive by itself may not be a valid reason for lesser punishment but in the present case, the prosecution has not been able to bring on record the material facts relating to the manner of taking place the occurrence and the immediate cause of occurrence, therefore, apart from the motive, the mystery in the circumstances leading to the occurrence would create sufficient mitigation in favour of the accused for lesser punishment". In Mirza Zaheer Ahmad and another Vs. State and others (PLJ 2004 SC 30), the Hon'ble Supreme Court of Pakistan was pleased to convert sentence of death of the accused into imprisonment for life as it was a case of single shot.
21.In view 'of the above discussion, the sentence of death of the appellant is converted into imprisonment for life. The amount .of compensation as ordered by the learned trial Court shall remain intact but in default of compensation, the appellant is directed to further undergo six months SI. Benefit of Section 382-B Cr.P.C. shall be extended to the appellant. This appeal is partly allowed with the above modification in the quantum of sentence.
Murder Reference is answered in the NEGATIVE and sentence of death is NOT CONFIRMED.