' MUHAMMAD ANWAARUL HAQ, J.----Umar Shehzad alias Sahib appellant along with his co- accused Ghulam Abbas, Muhammad Azam and Noor Muhammad was tried in case F.I.R. No, 409, dated 19-12-2002, registered at Police Station Ali Pur Chatha, District Gujranwala for offences under sections 302 read with sections 34 and 109, P.P.C. At the conclusion of the trial, the learned trial Court vide its judgment dated 28-10-2004, while acquitting co-accused Ghulam Abbas, Muhammad Azam and Noor Muhammad, had convicted Umar Shahzad alias Sahib appellant under section 302(b), P.P.C. And sentenced him to 'Death' for the Oatl-e-Amd of Ehsan Ullah. He was also directed to pay Rs,1,00,000 (Rupees one hundred thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
2. Feeling aggrieved, the appellant Umar Shahzad alias Sahib while challenging his conviction and sentence has filed Criminal Appeal No, 1814 of 2004, whereas learned trial Court has transmitted Murder Reference No, 294 of 2009 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.PE) by Muhammad Aslam complainant (P.W.5) is that on 19-12-2002 at about 8-00 p.m. Ehsan Ullah, brother in law (Behnoi) of the complainant, was preparing sweets (Burfi) outside his shop, whereas complainant along with Akbar Ali, Inayat Ullah and Muhammad Bashir were sitting on a bench near to him. Meanwhile, Umar Shahzad alias Sahib (appellant) armed with a .12 bore single barrel gun and his brother namely Imran Shahzad (Juvenile, separately tried and acquitted) emerged there, Imran Shahzad accused raised a lalkara that Ehsan-Ullah be taught a lesson for not giving commodities on credit, Umar Shahzad alias Sahib appellant made a fire shot which hit on right side of the back of the neck of EhsanUllah (deceased) who fell down and succumbed to the injury, accused while raising lalkara fled away.
' It was further alleged in the F.I.R. That Umar Shahzad alias Sahib has committed this murder on the abetment of Muhammad Azam, Muhammad Abbas and Noor Muhammad.
' The motive behind the occurrence as per F.I.R. (Exh. PE) was that Umar Shahzad alias Sahib had been lending commodities from the shop of Ehsan-Ullah (deceased) for which he had to pay Rs,3000 and when deceased demanded money, accused abused him and the complainant also interfered but accused did not calm down and for the last about one week was threatening Ehsan- Ullah of dire consequences and due to that grudge accused committed his murder.
4. On 19-12-2002 after registration of F.I.R. (Exh. PE) Munawar Hussain S.-I. (P.W.9) proceeded to the place of occurrence, prepared inquest report, (Exh. PG), injury statement (Exh. PH) and sent the dead body for autopsy. He also inspected the spot, collected blood stained earth, secured the same vide recovery memo (Exh. PK), sketched the rough site plan (Exh. PL) and recorded statements of the P. Ws. Under section 161 Cr.P. Code. Later on, investigation of this case was entrusted to Imran Abbas Inspector (P.W.10). On 16-1-2003 he formally arrested Umar Shehzad alias Sahib appellant, who led to the recovery of gun (P-1) which was taken into possession by the Investigating Officer through recovery memo. (Exh. PA).
5. After completion of investigation, challan was submitted before the learned trial Court, and charge was framed against them, appellant pleaded not guilty and claimed trial.
6. To substantiate the charge, prosecution had examined ten witnesses in all, out oT winch, Dr. Muhammad Nasrullah Khan (P.W.4) provided medical evidence; Muhammad Aslam complainant (P.W.5) and Inayat-ullah (P.W.6) furnished ocular account, whereas Munawar Hussain S.I. (P.W.9) and Imran Abbas Inspector (P.W.10) had conducted investigation of this case.
7. Dr. Muhammad Nasrullah Khan (P.W.4) conducted post-mortem examination on the dead-body of Ehsan-ullah and observed following injuries on his person:--
(1) Fire-arm entrance wound 3 cm x 2.5 cm on the back of right side of head 4 cm behind the right ear and 2 cm above hair margin (back of neck). Hairs around the wound were burnt.
(2) Abrasion 2 cm x 0.5 cm left side of forehead.
' In his opinion, the cause of death was Injury No, 1, sufficient to cause death in ordinary course of nature.
' Probable time elapsed between injuries and death was 5 to 10 minutes and between death and post mortem 12 to 14 hours.
8. Appellant and his co-accused when examined under section 342, Cr.P.Code they denied the allegations and professed their innocence. While answering to question, "Why this case against you and why the P.Ws have deposed against you?" appellant replied as under:-- "Deceased Ehsan-Ullah had illicit relations with the wife of my uncle Abbas and due to this some days before the occurrence a quarrel took place between me and Ehsanullah and his relatives due to this grudge and enmity I was involved in this case. The P.Ws. Are close relatives of deceased and also inimical towards me and co-accused."
' Neither the appellant nor his co-accused made statements under section 340(2) Cr.P.Code they also did not produce any evidence in their defence. The learned trial Court vide its judgment dated 8-10-2004, while acquitting co-accused Ghulam Abbas, Muhammad Azam and Noor Muhammad, found Umar Shehzad alias Sahib, appellant guilty and convicted and sentenced him as mentioned above.
9. Learned counsel for the appellant, in support of this appeal contends that story of the prosecution as set out in the F.I.R. Is not probable; that complainant and eye-witnesses mentioned in the F.I.R. Are not the residents of the place where the occurrence took place and this fact has been admitted by them while appealing before the Court; that there is a conflict between the ocular account and medical evidence as the deceased suffered an injury on the backside of his head and the hairs around the wound are burnt which clearly suggests that he was fired from a very close range whereas none of the eye-witnesses have stated that the deceased was fired from the backside; that the prosecution alleged a specific motive but miserably failed to prove it and it has been disbelieved by the learned trial Court; that recovery of gun (P-1) and report of Forensic Science Laboratory are inconsequential because no crime-empty was recovered from the spot; that co-accused of the appellant have already been acquitted by the learned trial Court and on the basis of same evidence, appellant cannot be convicted until and unless some strong corroborative evidence is brought on record; that both the eye-witnesses i.e, Muhammad Aslam complainant (P.W.5) and Inayat-ullah (P,. W.6) are related and interested witnesses and are not reliable. Further contends that if Court is not persuaded regarding the acquittal of the appellant, this is not a case of capital punishment because the prosecution has failed to substantiate the motive set out in the F.I.R. And the learned trial Court has disbelieved the same; that there is no allegation of repetition of fire and that at the time of occurrence appellant was around 18 years of age according to his statement recorded under section 342, Cr.P.Code; that there was no previous enmity between the parties; that it remained shrouded in mystery as to what exactly had happened between the deceased and the appellant immediately prior to the occurrence and that recovery of weapon without recovery of any empty is an extenuating circumstance in favour of the appellant and he deserves lesser penalty in the circumstances of the case.
10. On the other hand, learned Deputy Prosecutor-General opposed this appeal on the grounds that in this case direct F.I.R. At the police station was got registered within a period of thirty five minutes with all necessary details of the occurrence by the complainant; that ocular account has been furnished by father of the deceased, Inayat-ullah (P.W.6) and Muhammad Aslam complainant (P.W.5) brother-in-law, having no enmity with the appellant; that case of acquitted co-accused of the appellant is distinguishable as no fire shot was attributed to any of them; that prosecution case has been fully proved through ocular account supported by medical evidence.
Lastly contends that there is no mitigating circumstances in favour of the appellant because he has killed the deceased in a very callous manner, hence, 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 parties at length, and have given anxious consideration to their arguments and have also scanned the record with their able assistance.
12. The occurrence took place on 19-12-2002 at about 8-00 p.m. At the sweet shop of the deceased, matter was reported to the police at police station by Muhammad Aslam complainant (P.W.5) on the same day at 8-35 p.m. Within thirty five minutes. We have noticed that it is an exemplary prompt F.I.R. With all the necessary details of this unfortunate occurrence that rules out the possibility of any consultation or deliberation on behalf of the complainant/prosecution.
13. In order to prove the ocular account prosecution has examined real father Inayat Ullah (P.W.6) and Muhammad Aslam complainant (P.W.5) brother-in-law of the deceased, presence of both these eyewitnesses at the place of occurrence cannot be considered improbable against the natural conduct as the deceased was running a sweet shop and their presence along with deceased in a village is very natural and plausible and we do not find any reason of false implication of the appellant by them in this case, even otherwise, there is no reason to doubt their testimonies because they have no enmity of any sort with the appellant. 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."
' Even otherwise substitution in such like cases where both the eyewitnesses are close relatives of the deceased, is a rare phenomenon because 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 mode to the case of Irshad Ahmad and others v.
The State and others PLD 1996 SC 138."
14. We have not been able to find out any material contradiction between the ocular account and medical evidence. The distance between the appellant and deceased as per site plan (Exh. PB) is six feet and therefore, burning of hairs of the deceased is quite understandable as the distance between the barrel of the gun and the deceased was less than three feet. In the case of Ali Gohar v.
State 1996 SCM R 549 it was held by the Honourable Supreme Court that the length of rifle should also be added in assessing the distance between the assailant and the deceased.
' Therefore, we are of the view that there is absolutely no contradiction in ocular account and medical evidence.
15. As far as recovery of gun from the appellant and report of Forensic Science Laboratory (Exh.PN) is concerned, since no empty was recovered from the spot as such mere report of the Forensic Science Laboratory that the gun was in working order is of no avail to the prosecution.
16. As far as acquittal of all other co-accused of the appellant is concerned it does not advance the case of appellant in any manner firstly for the reason that their case is quite distinguishable as none of them had caused any injury to the deceased and fatal injury has been attributed to the appellant only, secondly it is by now well settled that principle of "falsus in uno falsus in omnibus" has no universal application and grain has to be sifted from the chaff to ensure justice. We refer an observation of the Honourable Supreme Court in the case titled, Khadim Hussain v. The State (2010 SCM R 1090) in the following words:-- "In fact a futile exercise appears to have been made to press into service the doctrine of "falsus in uno falsus in omnibus (false in one thing, false in all), which is admittedly not applicable in prevalent system of criminal administration of justice and more so there is no rule having universally applicable that where some accused were not found guilty the other accused would ipso facto stand acquitted because the Court has to sift the grain from chaff. Samano v. State 1973 SCM R 162. There is no cavil to the proposition that the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal applications. In the last analysis, as stated in some of the eminent judicial decisions, the grain has to be sifted from the Chaff in each case, in the light of its own peculiar circumstances Riaz Hussain v. The State 2001 SCM R 177."
17. 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 in accordance with law and we maintain the same.
18. So far as the question of quantum of sentence of the appellant is concerned, we have noted some mitigating circumstances in favour of the appellant. Prosecution has alleged a specific motive but has miserably been failed to prove the same. Admittedly, appellant and deceased had no previous enmity and in this view of the matter, exact cause of this unfortunate incident remained shrouded in mystery. There is no allegation of repetition of the fire by the appellant.
Recovery of weapon of offence in the absence of any crime-empty from the spot has lost its significance and lastly the age of the appellant at the time of occurrence was around 18 years.
19. In view of the above, we are convinced that appellant 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. It is well-recognized principle by now that accused is entitled for the benefit of doubt as an extenuating circumstance while deciding his question of sentence. Here, we very respectfully refer the case of Mir Muhammad alias Miro v. The State (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.
20. We, therefore, while maintaining conviction of Umar Shehzad alias Sahib, 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, 1814 of 2004 is disposed of with the above modification in the quantum of sentence.
21. Murder Reference No,294 of 2009 is answered in the Negative and death sentence awarded to Umar Shahzad alias Sahib is Not Confirmed.
Sentence altered.