MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No,424/07(Yara v.
The State) and Murder Reference No,711 of 2005 sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to the appellant, as both. these matters have arisen out of the same judgment dated 12-10-2005 passed by the learned Additional Sessions Judge, Okara, whereby, appellant was convicted, for the murder of complainant's real brother Ameer Ali (deceased), under section 302(b), P.P.C. and sentenced to death as Tazir with a further direction to pay a compensation of Rs,50,000 (Rupees fifty thousand only) to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. in default whereof to further undergo R.I. for six months.
However, benefit of doubt was extended to the two co-accused of the appellant, namely, Muhammad Ashraf and Ahmad Ali and they were acquitted from the charge.
2. Brief facts of the case, as given by P.W.7 Bashir Ahmad (complainant) in the F.I.R. (Exh.PD) are that on 13-5-2004 at about 10-00 p.m., he along with his brother Ameer Ali (deceased) were sleeping at the "dhari" of late Muhammad Ali Lashari, when, Yara (appellant) armed with a rifle, Ashraf empty handed and Ahmad armed with a "sota" (both acquitted co-accused of the appellant) reached there. Ashraf raised a Lalkara that Ameer Ali (deceased) be taught a lesson for quarrelling with them, upon which, Yara (appellant) fired a shot with his rifle which hit on the right thigh of Ameer Ali (deceased) which went through and through who fell on the ground. Ahmad Ali gave sota blow which hit on the forehead of Ameer Ali (deceased). The hue and cry raised by them attracted Ashraf and Liaqat Ali who reached there and witnessed the occurrence. Thereafter, the accused decamped from the spot. The injured was shifted to DHQ Hospital Okara where he died. The motive stated in the F.I.R. was that on the previous "Eid-ul-Azha" there was a minor quarrel between the parties but the matter was patched up by the respectables of the locality but due to the said quarrel, the deceased was done to death by the accused.
3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the appellant and his co-accused as required under section 265- C of the Code of Criminal Procedure, charge was framed against them, to which, they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution has produced as many as 14 witnesses during the trial.
The appellant, along with his co-accused, was examined under section 342, Cr.P.C. He neither produced any evidence in defence nor opted to depose on Oath as required under section 340(2), Cr.P.C. In an answer to the question "why this case against you and why the P. Ws. have deposed against you", Yara (appellant), in his statement recorded under section. 342, Cr.P.C., stated as under:-- "All the P.Ws. are related inter se with the deceased. They are also inimical to me. The deceased sustained fire shot injury at the hands of some unknown assailants in the darkness of night when he was all alone. No one else was present at 'the alleged place of occurrence and no one witnessed the same. The complainant party after the death of deceased attempted to trace out the assailants by using different measures. They have also obtained the services of tracers in this regard. On the failure the instant case was registered by the complainant by fabricating a false and concocted version with due deliberation and consultation. I have no grudge or enmity with the deceased. I have been falsely involved in this case at the instance of Rai Noor Muhammad Kharal Ex-MPA uncle of Umar Farooq present MPA as they are my political rivals in the area. I have always opposed them in the election and in the last election the above said MPA succeeded due to that reason the complainant party who are personal employee of the above said political figures have falsely implicated me in this false case."
However, after conclusion of the trial, the learned trial Court convicted And sentenced the appellant as mentioned above.
5. Learned counsel for the appellant, in support of this appeal, contends that there is a delay of more than eight hours in reporting the matter to the police without any plausible explanation that in the complainant has stated that the occurrence, besides him, was also witnessed by one Ashraf who was given up being unnecessary; that the other witness of the occurrence, namely, P.W.B.
Liaqat Ali has made dishonest improvements while appearing before the Court as his statement before the police was that he reached at the spot after hearing the voice of a fire shot whereas while appearing before the learned trial. Court he has stated that in his view the appellant fired a shot which hit the deceased on his right thigh; that the said witness was duly confronted with his previous statement made before the police under section 161, Cr.P.C. (Exh.DA) and the said improvements were brought on record which are fatal to the prosecution case; that there is no corroboration to the ocular account furnished by P.W.7. Bashir Ahmad (complainant) as no crime empty was recovered from the spot while report of the Forensic Science Laboratory (Exh.PR) is merely to the effect that 7 mm rifle (P3), which was taken into possession through memo Exh.PR, allegedly recovered at the instance of the appellant, was in the working order, is of no avail to the prosecution; that the prosecution has miserably failed to prove the motive set up in the F.I.R. as the complainant himself has stated in the F.I.R. that the matter of previous altercation between the parties was patched up, so, no question for the appellant to commit murder of the deceased arises; that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and that the appellant is entitled to acquittal.
Learned counsel lastly contends that if this Court is not persuaded with the argument of acquittal of the appellant then at least it is not a case of capital sentence for the reasons that the appellant fired only one shot at the deceased which hit on his thigh which is a non-vital part of the body and did not repeat the same; that the prosecution has not produced any evidence to prove motive stated in the F.I.R. and that on the basis of same set of evidence, two co-accused of the appellant, namely, Ahmad Ali and Muhammad Ashraf have been acquitted by the learned trial Court and no appeal against their acquittal has either been filed by the complainant or the State.
6. On the other hand, the learned Deputy Prosecutor-General for the State, while vehemently opposing this appeal, contends that that the appellant is named in the F.I.R. with a specific role; that, in order to prove its case, the natural eyewitness account has been furnished by the prosecution which inspires confidence and despite cross-examination the defence could shake nothing from the testimony of the witnesses; that the P.Ws. had no enmity with the appellant to falsely depose against him during the trial; that the ocular account in this case is supported by the medical evidence, the evidence of recovery of weapon of offence i,e, 7 mm rifle (P3) which was taken into possession through memo Exh.PM and positive report of the Forensic Science Laboratory(Exh.PR); that the factum of long abscondence of the appellant also strengthens the prosecution case 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 appeal filed by the appellant against his conviction and sentence be dismissed.
7. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also so scanned the evidence on record with their able assistance.
8. Occurrence in this case took place on 13-5-2004 at about 10-00 p.m., the matter was reported to the police by P.W.7 Bashir Ahmad (complainant) on 14-5-2004 at about 6.15 a.m. and the formal F.I.R. was registered at the said time. The distance between the place of occurrence and the Police Station was about 29 kilometers. It has come on record through the cross-examination of P.W.7. that the distance of the DHQ Hospital, Okara, where the deceased was taken in an injured condition, is about 25 kilometers from the place of occurrence where he was medically examined by Dr.Abdul Majeed (P.W.14) at about 2-30 a.m. and then the complainant reached the police station for lodging the F.I.R. While considering all these circumstances especially the social status of the complainant, we are of the view that there is no delay in reporting the matter to A the police and even no reason has come on the surface for false implication of the appellant in this case, so, the said delay, if any, in reporting the matter to the police is not fatal to the prosecution.
9. The prosecution, in order to prove its case, has produced P.W.7 Bashir Ahmad (complainant) and P.W.8 Liaqat Ali. P.W.7 is the real brother of the deceased while P.W.B. is deceased's humzulf. So far as testimony of P.W.B. is concerned, he has made improvements in his statement. While making his statement before the police under section 161, Cr.P.C., PW8 has stated that he attracted to the spot after hearing voice of the fire whereas while appearing before the Court he has specifically attributed a firearm injury on the right thigh of the deceased. He was duly confronted with his previous statement made before the police under section 161 Cr.P.C. (Exh.DA). Relevant portion of his cross-examination (at page 42 of the Paper Book) reads as under:-- I had got recorded in my statement in Exh.DA that Ashraf accused raised Lalkara that Ameer be taught a lesson of quarrelling with them. Confronted with Exh.DA where it is not so recorded. I had got recorded in my statement before police that Yara accused made fire shot with his rifle hitting on right thigh (Putt) of Ameer Ali. Confronted with Exh.DA where it is not so recorded. I had stated in my statement before police that Ameer Ali fell on the ground after sustaining fire shot. Confronted with Exh.DA where it is not so recorded."
10.However, the natural eye-witness account has been furnished by P.W.7. C Bashir Ahmad (complainant). He is the real brother of the deceased having no animosity with the appellant. His testimony cannot be discarded merely for the reason that he is real brother of the deceased. His presence at the place of occurrence at the relevant time is natural. Even all material aspects of the incident have duly been mentioned in the F.I.R. by this P.W. and he remained consistent on all material particulars of the case. It is settled law that it is the quality of the evidence and not the quantity which weighs with the Court and conviction can be maintained on the basis of testimony of a single witness, if the same inspires confidence. We have fortified our view by a judgment of the august Supreme Court of Pakistan reported in ALLAH BAKHSH v. SHAMMI AND OTHER (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 v. 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.<u> In other words, the 'emphasis' is on quality of evidence and not on its quantity. <u/>In this behalf reliance can be placed on the case of Allah Bakhsh v. Shammi (PLD 1980 SC 225)."
The question of substitution of an actual killer with an innocent person by the related witness was dilated upon by the august Supreme Court of Pakistan in the case of KHALID SAIFULLAH v. THE STATE (2008 SCM R 688), wherein, at page 692, the learned Apex Court has been pleased to hold as under:-- "(8) There is no such material available on record which would indicate substitution of the petitioner in the case with the real culprit. 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)."
11. Apart from above, the medical evidence in this case was furnished by P.W.1 Dr.Arshad Iqbal who conducted postmortem examination on the body of deceased on 14-5-2004 at 11-30 a.m. He noted following injuries on his person:-- "1-A. Lacerated wound 2 x 1 cm with inverted margin deep going on front and lower part of right thigh.
1-B. A lacerated wound 2 x 1-1/2 cm with averted margin on back and inner part of right thigh (wound of exit). Corresponding holes were present on shalwar.
(2) A zigzag stitched wound 2-1/2 cm L shaped on right eye brow with 1 x 1 cm. Abrasion just above stitched wound.
(3)A lacerated wound 2 x 1 cm muscle deep on right side of lower lip. Stomach was healthy and empty. The bladder was also healthy and full of urine."
12.The allegation against the appellant was that he caused a firearm injury on the right thigh of the deceased which went through and through which injury, as per Postmortem Report (Exh.PA) does exist as Injuries No,1-A (entry) and 1-B (exit). According to the opinion of the doctor, the probable time between the receipt of injuries and death was within 7 hours and between death and postmortem was within 7 hours which coincides with the time of occurrence given by the prosecution, so, the ocular account in this case is supported by the medical evidence. The factum of five months abscondence of the appellant, which has been proved through the statement of P.W.11. Naseer Ahmad Inspector, is yet another factor which supports the prosecution case.
13.However, the argument of the learned counsel for the appellant that report of the Forensic Science Laboratory (Exh.PR) is of no avail to the prosecution, has force because this report is only to the effect that 7 mm rifle (P3) recovered at the instance of the appellant and taken into possession through memo Exh.PM, was in the working condition but in absence of recovery of any crime empty from the spot the said recovery of weapon does not connect the appellant with this crime. So far as motive part of the prosecution case as set up by the complainant in the F.I.R. is concerned, we have noted that a specific motive of a quarrel between the parties before the previous Eid-ul-Azha finds mention in the F.I.R. but it is also mentioned in the F.I.R. that the matter, which was of a minor nature, had been patched up between the parties coupled with the fact that the prosecution has not produced any independent witness to substantiate the same, so, in our view the prosecution has failed to prove the motive. But, if the evidence of recovery and motive is excluded from consideration, even then there is sufficient evidence in the form of statement of P.W.7, P.W.1 and appellant's five months abscondence, to maintain his conviction.
14. In the afore-referred circumstance of the case, we are of the considered view that the prosecution has proved its case against the appellant beyond any shadow of doubt to maintain conviction of the appellant under section 302(b), P.P.C.
15. However, we have noted that there are certain extenuating circumstances which suggest that it is not a case of capital sentence, firstly, the appellant fired only one shot which landed on the thigh of the deceased which is a non-vital part of the body which injury unfortunately led to his death in the hospital, secondly, on the basis of same set of evidence two co-accused of the appellant, namely, Ahmad Ali and H Muhammad Ashraf have already been acquitted by the learned trial Court and no appeal against their acquittal has either been filed by the State or the complainant and, lastly, though a specific motive was alleged by the prosecution in the F.I.R. but the same remained unsubstantiated coupled with the fact that as per prosecution's own showing the matter was patched up which even otherwise was of a minor nature and the circumstances suggest non- existence of pre-meditation on the part of the appellant to kill the deceased. In the case of MUHAMMAD ARSHAD AND 2 OTHERS v. THE STATE (PLD 1996 SC 122), non-existence of pre-meditation on the part of the accused and attribution of one firearm injury were considered by the Hon'ble Supreme Court of Pakistan to be a mitigating circumstance. It would be advantageous to reproduce observations of the learned Apex Court of the country at page 127, which are as under:-- "10. We first take up the question of sentence of Arshad appellant under section 302, P.P.C. He has been awarded death sentence on the charge of murder which undoubtedly is a normal penalty for the offence of murder but in appropriate cases where some extenuating circumstances are available, the Courts have the discretion to award lesser punishment of imprisonment for life provided under section 302, P.P.C. Now in the present case, there arecircumstances forthcoming from the record which could be taken as extenuating/ mitigating circumstances for the purpose of awarding lesser sentence but the learned Court below have not duly attended to them when considering the question of sentence to be imposed on the appellant. It is an admitted position that there existed no background of any previous enmity or deep-rooted hostility between the appellants and the deceased. There was only a minor dispute between them regarding the demarcation of their adjacent plots which resulted in the unfortunate occurrence. It is also in evidence that the act of firing by Arshad appellant at the deceased was preceded by a dialogue between the accused and the deceased followed by a scuffle/grappling between Afzal accused and the deceased and the pelting of stones by the daughters of the deceased at Afzal accused who as a result sustained some injuries. It is also significant that Arshad appellant fired only one shot and did not repeat it. All these factors in our view cumulatively make out a case for mitigation of sentence. We, therefore, hold that the extreme penalty of death awarded to Arshad appellant was not called for and the lesser sentence of life imprisonment would meet the ends of justice."
(emphasis and underlining has been supplied)
The question of quantum of sentence also came up for consideration in the case of MIR MUHAMMAD alias MIRO v. THE STATE (2009 SCM R 1188), wherein, at page 1191, the Hon'ble Supreme Court of Pakistan has been pleased to emphasize as under:-- "(9) 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."
Apart from above, the question of discretion in awarding sentence to the accused as Tazir in a case of "Qatl-e-amd" came up for consideration before the august Supreme Court of Pakistan in the case of IFTIKHARUL HASSAN v. ISRAR BASHIR AND ANOTHER (PLD 2007 SC 111). In the said judgment, at page 119, the learned Apex Court has been pleased to hold as under:-- "....The difference of punishment for Qatl-e-amd as qisas and tazir provided under sections 302(a) and 302(b), P.P.C. respectively is that in a case of qisas, Court has no discretion in the matter of sentence whereas in case of tazir Court may award either of the sentence provided, under section 302(b), P.P.C. and exercise of this discretion in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-e-amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCM R 4), Faqir Ullah v. Khalil-uz-Zaman (1999 SCM R 2203), Muhammad Akram v. State (2003 SCM R 855) and Abdus Salam v. State (2000 SCM R 338)".
The above view was reiterated in another judgment of the Hon' ble Supreme Court of Pakistan reported as SHARAFAT ALI KHAN v. THE STATE (2010 SCM R 1205), wherein, at page 1209, the august Court was pleased to observe as under:-- "In Muhammad Riaz and another v. The State (2007 SCM R 1413) while considering the penalty for an act of commission of qatl-e-amd it was observed "no doubt normal penalty for an act of commission of qatl-e-amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case. Reference in the context may also be made to Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SCM R 502)".
16 We are of the firm view that in the peculiar facts and circumstances of the case it is a fit case in which such discretion needs to be exercised, therefore, while maintaining conviction of the appellant under section 302(b), P.P.C. as Tazir, 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 while imprisonment in default of the amount of compensation shall be read as "six months' SI." instead of "six months RI". Benefit of section 382-B, Cr.P.C. is also 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.