MUHAMMAD ANWAARUL HAQ, J.---Usman alias Kaloo appellant was tried in case F.I.R. No, 108, dated 6-3-2005, registered at Police Station Tandlianwala, District Faisalabad in respect of offences under section 302, P.P.C. read with section 13 of the Arms Ordinance XX of 1965. After conclusion of trial, learned trial Court vide its judgment dated 30-11-2005 has convicted the appellant under section 302(b), P.P.C. and sentenced him to 'Death' for committing Qatl-e-amd of Noor. Ahmad, (deceased). He was also ordered 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. and in default thereof to further undergo S.I. for six months.
2. Feeling aggrieved, the appellant while challenging his conviction and sentence has filed Criminal Appeal No, 1981 of 2005, whereas learned trial Court has transmitted Murder Reference No, 76 of 2006 for confirmation or otherwise of the Death sentence of Usman alias Kaloo appellant. Both these matters being integrated are being disposed of together.
3. Prosecution story in brief unfolded in the F.I.R. (Exh.PB) by Zahoor Ahmad complainant (P.W.3) is that on 5-3-2005 at about 11-30 p.m. he along with his brother Manzoor Ahmad and one Ghulam Farid was sitting with his mother, in the meantime, his other brother Noor Ahmad arrived there and called his wife at the house of his door, upon which his wife Mst. Parveen Bibi opened the door and Usman alias Kaloo (appellant) came out from the house, Noor Ahmad caught hold Usman alias Kaloo from his legs, Usman alias Kaki fired a shot from his pistol .30 bore which hit on the back of Noor Ahmad (deceased), who succumbed to the injury at the spot. The complainant along with P.Ws. apprehended Usman alias Kaloo accused and Manzoor Ahmad caused him some injuries with a Sota. Motive behind the occurrence as mentioned in the F.I.R. (Exh.PB) was that Mst. Parveen Bibi had illicit relations with the appellant Usman alias Kaloo and due to this reason, he has committed this occurrence.
4. On 6-3-2005, on receipt of information about this occurrence, Nazar Hussain S.I. (P.W.10), along with other police officials, reached at the spot and recorded statement of the complainant (Exh.PH) at 12-55 a.m. (same night). Zahoor Hussain complainant (P.W.3) along with Manzoor Ahmad and Ghulam Farid P.Ws. handed over custody of Usman alias Kaloo (appellant) along with a pistol .30 bore (P-1) to him which pistol, was taken into possession by the Investigating Officer vide recovery memo (Exh.PC) and he sent the complaint (Exh.PH) to the police station for registration of formal F.I.R, then, lie prepared injury statement (Exh.PF) and inquest report (Exh.PG) of the deceased, sketched the rough-site plan of the place of occurrence (Exh.PJ) and sent the dead body of Noor Ahmad (deceased) for autopsy. He collected blood-stained earth from the spot and secured the same vide recovery memo (Exh.PD He recorded statements of the P.Ws. under section 161, Cr.P.Code. He took Usman alias Kaloo (appellant) in injured condition to Tehsil Headquarter Hospital, Tandlianwala and got him medically examined.
5. After completion of investigation, challan against the appellant was submitted before the learned trial court, charge was framed against him to that he pleaded not guilty and claimed trial.
6. To substantiate the charge the prosecution had examined ten witnesses in total. Dr. Nasir Mehmood (P.W.9) and Dr. Abdul Sattar (C.W.1) provided medical evidence, Nazar Hussain S.I.
(P.W.10) conducted investigation of this case, whereas Zahoor Ahmad, complainant (P.W.3), Ghulam Farid (P.W.6) and Manzoor Ahmad (P.W.7) had furnished the ocular account.
7. On 6-3-2005 Dr. Nasir Mehmood (P.W.9) conducted postmortem examination on the dead body of Noor Ahmad and found as under:-- (1)(i) An inverted margin lacerated wound 0.6 cm x 0.3 cm on the backbone in lower thoracic region (wound of entry).
(ii) An everted margin lacerated wound 1.5 cm x 1.2 cm on the lateral side of left chest 10 cm below the axilla.
(2)An abrasion 2 cm x 1.6 cm on the upper back of right forearm.
(3)An abrasion 3 cm x 0.4 Cm on the mid front surface of right forearm.
(4)An abrasion 0.6 cm x 0.3 cm on the front of right elbow.
(5)An abrasion 0.3 cm x 0.3 cm on the lowest front of right arm.
(6)Two abrasions 2 cm x 0.3 cm and 1.3 cm x 0.3 cm on the upper most part of front surface of right forearm.
(7)Two abrasions 1.6 cm x 0.5 cm and 0.8 cm x 0.4 cm on the medial side of right knee.
(8)An abrasion 0.3 cm x 0.2 cm on the front surface of left great toe.
' In his opinion, the cause of death was injury No,1, which damaged left lung and its vessels, that caused haemorrhage and shock which was sufficient to cause death in ordinary course of nature.
Injury No, 1 was inflicted by firearm while injuries Nos.2 to 8 were simple in nature, ante mortem, caused by blunt weapon.
' Probable time elapsed between injuries and death was half to one hour and between death and post mortem about 12 hours.
' On the same night at about 2-00 a.m. Dr. Abdul Sattar (C.W.1) conducted medical examination on the person of Usman alias Kaloo (appellant) on the application of police (Exh.C-2) and observed as under:-- (1)A lacerated wound 3 cm x 0.2 cm on back of head: Advised X-ray K .U.0 (2)A lacerated wound 2 cm c 0.5 cm on back of right elbow.
(3)A contused swelling on lower abdomen.
(4)A lacerated wound on right lower leg 2 cm x 1 cm inner side.
(5)A lacerated wound on left lower leg 2 cm x 1 cm outer side.
(6)A contused swelling on left buttock 2 cm x 4 cm.
' He declared injury No,1 under section 337-A(ii), P.P.C., Injuries Nos. 3 and 6 under section 337-L(2), P.P.C., Injuries Nos. 2, 4 and 5 under section 337-F(iii), P.P.C.
' In his opinion, all the injuries were caused by blunt weapon, fresh in duration and the injured was vitally stable with normal B.P. and temperature.
8. 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:-- "I am innocent. P.Ws. are related inter se while P.W. Ghulam Farid is Zimindar of the locality. The deceased was his driver. Under suspicion prosecution involved me in this false case; actually it was a blind murder. I have no any enmity with the deceased."
' In reply to question No, 4 regarding his arrest from the spot and recovery of crime weapon he replied as under:-- "It is incorrect. It was a blind murder. I was called from my house, police and complainant party tortured me and gave a severe beating only under suspicion and forced me to confess the crime and on my refusal police gave me severe beating and recorded a false story posing it to explain by me. Mother of deceased, wife of deceased and other inmates of the deceased did not appear before me and made any statement against me. It is a false case".
' The appellant did not make statement under section 340(2), Cr.P.C. however, on his application Dr. Abdul Sattar appeared as (C.W.1). Learned trial Court vide its judgment-dated 30-11-2005 found the appellant guilty and convicted and sentenced him as mentioned above, hence, these matters before this Court.
9. Learned counsel for the appellant, in support of this appeal, contends that case against the appellant is totally false, it was a night time blind murder and nobody had witnessed the incident; that the most natural witnesses of this incident were the mother, wife and children of the deceased but none of them were examined during the course of investigation; that ocular account furnished by the prosecution is not supported by medical evidence' and there are material contradictions between ocular and medical evidence as in the F.I.R. and in other documents prepared by the police, there was only one firearm injury on the person of the deceased whereas in the postmortem report (Exh. PE) there were eight wounds on the person of the deceased, one was caused by firearm weapon whereas other seven wounds by blunt weapon but there is no explanation by the prosecution regarding those injuries; that there was no blackening around injury No,1; that it is the case of the prosecution that the appellant was arrested at the spot, which fact is belied by Muhammad Arif 1473/C-1 (P.W.8), who has categorically stated that he remained along with Investigating Officer (P.W.10) for a considerable time and the appellant was not in the custody of the police, Dr. Abdul Sattar (C.W.l), who medically examined the appellant nowhere mentioned in the M.L.R. (Exh.C-1) that the appellant was brought by the police; that nothing was recovered from the appellant and the prosecution has miserably been failed to prove the motive as it has been admitted by the Investigating Officer (P.W.10) that no witness in this respect was examined during the course of investigation; that there is no allegation of repetition of fire by the appellant; that the pistol allegedly recovered from the appellant by the complainant and his P.Ws. , was handed over to the Investigating Officer (P.W.10) but the same was not sent to the Forensic Science Laboratory for expert opinion and no crime-empty was recovered from the spot and even no bullet was recovered from the appellant and there is no explanation for non-recovery of crime-empty and all these circumstances make the prosecution story highly doubtful. Learned counsel in the alternative submits that there was no previous enmity, between the parties and it remained shrouded in mystery as to what exactly had happened between the deceased and the appellant. immediately prior to the occurrence and that prosecution has not been able to prove the case against the appellant beyond reasonable doubt, even otherwise it's the case of the prosecution that appellant, if fired, he did the same in his self defence, therefore, he deserves lesser penalty in the circumstances of the case.
10. On the other hand, learned Deputy, Prosecutor-General assisted by learned counsel for the complainant opposes this appeal on the grounds that the appellant being a single accused in this case is duly nominated in a promptly lodged F.I.R. with specific role of making fatal fire shot hitting the deceased on his back; that prosecution case has fully been proved through ocular account supported by medical evidence hence, the appellant does not deserve any leniency and is not entitled to any exception.
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. In this case, occurrence took place on 5-3-2005 in the night time at about 11-30 p.m. matter was promptly reported to the police by Zahoor Ahmad complainant (P.W.3) on the same night at 12-55 a.tn. and formal F.I.R. (Exh.PB) was registered at 1-15 a.m. whereas the distance between the police station and place of occurrence is about five k.m. post-mortem examination on the dead body of the deceased was also conducted on 6-3-2005 at 10-00 a.m. We have noticed that it is a promptly lodged F.I.R. with all the necessary details of this unfortunate occurrence that rules out the possibility of any concoction or deliberation on behalf of the complainant/prosecution.
13. The main question for determination before us in this case is whether the appellant was arrested by the prosecution witnesses at the spot and whether he was got medically examined by the police, the learned counsel for the appellant has strongly argued that the appellant was not arrested at the spot rather he was called upon from his house and thereafter was arrested. We have noted that in this case statement of the complainant was recorded at the spot at 12-55 a.m. formal F.I.R. (Exh.PB) was recorded by the police at 1-15 a.m. and thereafter the appellant was taken to the hospital for his medical examination. Though, in the Medico-Legal Report (Exh. C-1) it is not mentioned that the appellant was brought by the police yet at the same time there is a document on the record i.e, application for medical examination (Exh.C-2) which was prepared by Nazar Hussain S.I. (P.W.10) and said application was signed by the doctor, who medically examined the appellant and that doctor hen appeared before the Court as C.W.1 has categorically stated that he has signed that application, he was not cross-examined on behalf of the appellant on this aspect of the matter, therefore, we have come to the conclusion that the appellant was apprehended at the spot and was got medically examined by the police at 2-00 a.m. on the same night. Concessional statement of Muhammad Arif B 1473/C-I (P.W.8) in view of the overwhelming evidence available in this regard is of no help to the accused. It is well settled by the Hon'ble Supreme Court of Pakistan that obliging concessions made by formal witnesses such as police constables cannot be of any value. We C respectfully refer the case of Muhammad Sharif v. Muhammad Javed alias Jeda Tedi and 5 others (PLD 1976 Supreme Court 452) wherein Hon'ble Supreme Court has emphasized as under:-- "Experience has shown that this type of modus operandi by unscrupulous and successfully tackled patwaris and F.Cs. has become quite usual. Although in the instant case, this part of the evidence of the Constable is not worth a.moment's consideration in damaging concessions are elicited by the defence from formal witnesses in accordance with a previous understanding".
' In the case of Bagu . State (PLD 1972 SC 77) Hon'ble Supreme Court has emphasized as under:-- "Before parting with this case, we cannot help observing that the frequency with which cases are coming up before us wherein formal witnesses, particularly foot constables are found to be obliging the defence in cross-examination with regard to matters wholly unconnected with the part the witnesses took in the investigation, is causing us some concern. We entirely agree with the observations of one of the learned Judges of the Peshawar High Court in the case of Sikandar Shah v. The State that the obliging concessions made by such witnesses in cross-examination cannot be considered to be of any value. We also hope that the Provincial Governments will take note of these observations and take steps to check such propensities on the part of their own subordinate police Constables".
14. All the P.Ws. are the residents of the same village where occurrence took place. Zahoor Ahmad complainant (P.W.3) and Manzoor Ahmad (P.W.7) are real brothers of the deceased and in view of the Site Plan (Exh. PA) it is not disputed that house of the mother of the deceased was adjacent to the house of 'the deceased, therefore, presence of P.W.3 and P.W.7; who are real brothers of the deceased, in the house of their mother is quite natural and similarly, Ghulam Farid (P.W.6) is also resident of the same village where occurrence took place, they remained consistent on all material aspects of the case that the deceased tried to apprehend the appellant when he came out of his house and thereafter le fired a shot at the deceased. Though, Zahoor Ahmad complainant (P.W.3) and Manzoor Ahmad (P.W.7) are very closely related to the deceased yet we do not find any reason Of false implication of the appellant by them in this case, even otherwise, there is no reason to &at their testimonies because they have no enmity of any sort with the appellant. Mere relationship of the witness is not sufficient to discard his, testimony. In this respect, we respectfully refer the case of Haji v. The State (2010 SCM R 650). Even otherwise, substitution in such like cases where two eye- witnesses are real brothers of the deceased, is a rare phenomenon because it is impossible that real brothers of the deceased 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).
We are of the considered view that ocular account is substantially supported medical evidence qua the fatal shot received E by the deceased.
15. As regards evidence of recovery of pistol .30 bore (p-i) taken into possession by the Investigating Officer. vide recovery memo (Exh.PC) from the appellant, it is evident from the record that no crime-empty was recovered from the spot and even the recovered weapon was not sent to the Forensic Science Laboratory for expert opinion and no convincing evidence in this regard was produced by the prosecution, we are of the view that it does not help to the prosecution. But even if the evidence of motive and recovery of pistol is excluded from consideration, for maintaining the conviction of the appellant there remains sufficient and convincing evidence against the appellant in the form of ocular account supported by medical evidence and the appellant's arrest at the spot by the P.Ws. In view of the above, we are satisfied that finding of conviction of the appellant recorded by the learned trial court is quite in accordance with law and is based upon well recognized principles of appreciation of evidence in a criminal case, hence, conviction of the appellant under section 302(b), P.P.C. recorded by the learned trial court is maintained.
16. So far as the question of quantum of sentence of the appellant is concerned, we have noticed certain Mitigating/extenuating circumstances in his favour:-- (i)that according to the F.I.R. (Exh.PB), there was a single firearm injury on the person of Noor Ahmad (deceased) but in the post mortem report (Exh.PE) seven other injuries, caused by blunt weapon, were mentioned but there is no explanation available on the record regarding those injuries.
(ii)that no crime-empty was recovered from the spot, no bullet was taken into possession by the Investigating Officer and even the pistol (P-1), so recovered, was not sent to the Firearm Expert for expert opinion.
(iii)that prosecution has alleged a specific motive in the F.I.R. that Mst. Parveen Bibi had illicit relations with the appellant Usman alias Kaloo, but in this respect, it did not produce any witness and the Investigating Officer while appearing before the Court as P.W.10 has admitted that he has not investigated this aspect of the case, therefore it remained shrouded in mystery that what exactly had happened between the appellant and the deceased.
(iv)That it is a case of single fire at the back of the deceased.
' In view of all 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 Sate (2009 SCM R 1188).
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 I accused for the award of normal penalty of death.
17. We,, therefore, while maintaining conviction of Usman alias Kaloo, appellant under 'section 302(b), P.P.C., alter his sentence of J Death into Imprisonment for Life. The amount of compensation and sentence in default thereof as ordered by the learned trial court shall remain intact.Benefit of section 382-B, Cr.P.Code is, also extended to the appellant. Criminal Appeal No, 1981 of 2005 is disposed of with the above modification in the quantum of sentence.
18. Murder Reference No, 76 of 2006 is answered in the Negative and death sentence awarded to Usman alias Kaloo is Not confirmed.