' MUHAMMAD HASHIM KHAN KAKAR, J.---The Sessions Judge, Loralai vide judgment dated 29th December, 2010 has convicted appellant Fazal Mir alias Zallai under section 302(b) of the P.P.C. And sentenced to death as ta'zir and under section 148 of the P.P.C. To suffer R.I. For one (01) year and to pay an amount of Rs,10,000 (rupees ten thousand only) as fine, in default whereof to further undergo three (03) months' S.I., with the benefit of section 382-B of the Cr.P.C. The appellant challenged his conviction and sentence by way of filing Criminal Appeal No,1 of 2011, whereas the Sessions Judge has sent Murder Reference No,2 of 2011 for confirmation of the sentence of death or otherwise. Since common question of law and facts is involved, therefore, both the matters are being disposed of by means of this common judgment.
2. Complainant Shireen Khan (P.W.1) in his Fard-e-Bayan (Ex.P/1-A) alleged that on 29th May 2010 at about 6-00 p.m., his brother Saleh Muhammad was making ablution in fields, when accused Fazal Mir alias Zallai made firing upon him with a rifle. Complainant further alleged that he, Meerak, Nazar Gul and other relatives were also present there and as soon they move forward, accused Fazal Mir and his accomplices Saddo Mir, Lalo, Jan Mir alias Haji and Qutab Khan also made firing upon them with rifles and Kalashnikovs. His brother Saleh Muhammad expired on the spot and consequently a case vide Crime No,17 of 2010, under sections 302, 324 read with sections 148 and 149 of the P.P.C. Was registered at Levies Station Mekhtar.
3. After registration of F.I.R. Exh.P/5-A, the.Investigation of the case was carried out by P.W.5 Muhammad Asadullah, Naib Tehsildar, who visited and inspected the site, prepared site sketch Exh.P/5-B, secured blood-stained earth, prepared inquest report Exh.P/5-C at the spot, took into possession blood-stained clothes of the deceased at hospital vide memo Exh.P/2-C. On the next day of occurrence, he collected empties from the crime scene and recorded the statements of P.
Ws. From time to time. After completion of investigation, he prepared incomplete challan Exh.P/5-D.
He obtained the death certificate of the deceased and on 18th July, 2010 arrested accused Fazal Mir and prepared supplementary challan Exh.P/5-E to his extent and he was sent up to face the trial.
4. On the stated allegations, a formal charge was framed and read over to the appellant, to which he did not plead guilty and claimed trial. The prosecution, in order to prove its case, produced five witnesses. P.W.1 Shereen Khan is complainant of the case, who placed on record his Fard-e-Bayan Exh.P/1-A. P.W.2 Mulla Muhammad Din is witness to the recovery memos Exh.P/2-A to Exh.P/2-C regarding securing of blood-stained earth, collection of crime empties from the place of occurrence and blood-stained clothes of the deceased. P.W.3 Dr. Syed Abdul Bari, Senior Medical Officer, DHQ Hospital, Loralai examined the dead body of the deceased and issued death certificate Exh.P/3-A. P.W.4 Nazar Gul alleged to have witnessed the occurrence and P.W.5 Muhammad Asadullah, Naib Tehsildar is the investigating office of the case. Then the prosecution closed its side.
5. In his examination under section 342 of the Cr.P.C., the appellant denied and controverted each and every allegation of facts levelled against him by the prosecution and professed his innocence.
He recorded his statement on oath under section 340(2) of the Cr.P.C, and produced DW-1 Muhammad Shah and DW-2 Muhammad Khan in his defence.
6. At the conclusion of trial, the trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt, thus, he was convicted and sentenced, as detailed above.
7. We have heard learned counsel for the appellant as well as learned counsel for the State and the complainant and have gone through the record with their valuable assistance. It has been argued by learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. On the other hand, learned counsel for the State and the complainant have maintained that prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the present appeal deserves to be dismissed.
8. After hearing learned counsel for the parties and having gone through the record, we have arrived at a confident conclusion that the prosecution had, indeed, succeeded to prove its case against the appellant beyond reasonable doubt.
9. As far as unnatural death of deceased Saleh Muhammad is concerned, the same has not been seriously disputed by the defence. Even otherwise, P.W.3 Dr. Syed Abdul Bari, Senior Medical Officer, District Headquarter Hospital, Loralai, who examined the dead body of deceased Saleh Muhammad, has proved unnatural death of the deceased by means of firearm injury.
10. However, the question arises, as to whether the appellant was the person, who committed the murder of the deceased? It is the case of prosecution that on 29th May 2010 at about 6-00 p.m., the deceased Saleh Muhammad was making ablution in fields, when appellant Fazal Mir alias Zallai made firing upon him by means of a rifle, who expired on the spot. The connection of the appellant with the the crime in question is sought to be established by the evidence of P.W.1 Shireen Khan (complainant) and P.W.4 Nazar Gul, who claimed to have seen the occurrence. In their dispositions before the trial Court, they had stated that on the fateful day at about 6-00 p.m., deceased Saleh Muhammad was making ablution in fields, when appellant Fazal Mir alias Zallai made firing upon him by' means of a rifle, which resulted in his death. They had also stated that as soon as they moved forward, companions of the appellant, viz Sado Mir, Lalo. Jan Mir and Qutab also made firing upon them and, thereafter, the culprits escaped from the scene of crime.
11. No doubt, P.W.1 Shireen Khan is brother of the deceased, whereas P.W.4 Nazar Gul is also related to the deceased, but only on account of their relationship with the deceased, they cannot be termed as interested witnesses, for the reason that they had no direct animosity with the appellant, who has been nominated as a principal perpetrator in the F.I.R. It is a settled principle of law that in criminal cases, evidence furnished by interested witnesses related to the deceased, cannot be discarded merely for the reason that the witnesses have relationship with the victim, however, the Courts have emphasized that in such like situation efforts must be made to seek corroboration from the other evidence on record. As far as corroboration is concerned, it does not mean that it should come from an independent witness, but anything in the circumstances, which tends to satisfy the Court that the witnesses have spoken truth, can safely be considered to be corroborative evidence. By holding this view, we are fortified from a case of "Muhammad Amin v.
The State" reported in 2000 SCM R 1184, wherein it has been held by Hon'ble Supreme Court of Pakistan as under:- "An interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused. Friendship or relationship with the deceased will not he sufficient to discredit a witness particularly when there is no motive to falsely involve the accused."
' Despite lengthy cross-examination, the defence failed to create any dent in the veracity of the witnesses, except a few discrepancies, which are immaterial and not fatal to their evidence. The occurrence has also taken place in broad daylight and under such circumstances, no question of mistaken identification arise at all. Their evidence is not suffering from any material contradiction, discrepancy or inherent infirmity and is consistent with the probabilities, materially fitting in with the other evidence, more particularly the medical evidence and supported by the abscondence of the appellant.
13. The contention of learned counsel regarding non-recovery of crime weapon is also devoid of any force, for the reason that it is not fatal in the facts and circumstances of this case. Admittedly, the appellant remained absconder for a period of about two months after commission of the offence, as such, he cannot be allowed to take benefit of his own wrong. Even otherwise, it is a settled proposition of law that recovery of weapon of offence or empties is not the mandatory requirement of law, but is a circumstantial piece of evidence, which tends to corroborate the other pieces of evidence i.e, ocular account, motive, medical evidence and any other circumstance.
Which may deem relevant in the presence of direct evidence, credibility of which has withstood the test of challenge through cross-examination, thus, the absence of corroborative piece of evidence would not be fatal at all.
14. Much emphasis has been made on the point that the report has been lodged with unexplained delay, which adversely affects the prosecution's case. It is not denied that undue and explained delay in lodging report leads to suspicion and reflects on the truth of the prosecution's case and earlier information is required to be supplied in order to avoid criticism of the report as being manipulated and result of consultation, but in the present case, we find that the place of occurrence is situated at a distance of about 50 kilometers from Levies Thana, Mekhtar, as such, the lodging of report with a delay of four hours in the peculiar circumstances of the case is not fatal and delay has been fully explained.
15. Insofar as quantum of the sentence is concerned, we find that according to the prosecution's own showing, one day prior to the incident, appellant Fazal Mir alias Zallai restrained the deceased from working in a disputed land, as he was claiming the ownership of the land in question. The aforesaid circumstances suggest that the occurrence had taken place because of the fault of deceased Saleh Muhammad. Who caused annoyance to the accused and having been disappointed by the discouraging attitude of the deceased. The accused decided to take a J drastic action to vent his anger by firing upon the deceased, who on the day and time of occurrence was working in the disputed land in the company of the prosecution witnesses. The record is also indicative of the fact that it is a case of single shot and the appellant in spite of having opportunity did not repeat the firing, although, at the time of occurrence, he was, allegedly, accompanying by his companions, who were also armed with lethal weapons and the deceased was lying injured in helpless condition completely on their mercy. It is a recognized principle of law that in criminal administration of justice, the question of sentence demands utmost care on the part of Court dealing with the life and liberties of people and an accused person is also entitled to extenuating benefit of doubt on the question of sentence and it would be relevant to mention here that the gravity of the punishment/sentence is always dependant upon the gravity of the offence.
In this regard, before deteimining the quantum of sentence, it would be advantageous to have a glance to the provision of section 302 of the P.P.C., which hold the field on the subject, which reads as under:- "302. Punishment of qatl-e-amd.---Whoever commits qatl-e-amd shall, subject to the provisions of this chapter be;
(a) punished with death as qisas;
(b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of qisas is not applicable: ' Provided that nothing in this clause shall apply to the offence of qatl-e-amd if committed in the name or on the pretext of honour and the same shall fail within the ambit of clause (a) or clause (b), as the case may be."
16. A bare perusal of above provision of law clearly demonstrates that it provides two kinds of punishment i.e, punishment with death as qisas or imprisonment for life as ta'zir. In case of application of section 302(a) of the P.P.C., no discretion is left with the Court, while awarding the sentence; however, in case of section 302(b) of the P.P.C., the Court is left with an option to award either death sentence or imprisonment for life.
17. Since the occurrence was the result of fault on the part of the deceased, who caused annoyance to the appellant and it was a case of single shot, thus, we, in view of the observations made in Abdul Khaliq v. The State, 1989 SCM R 2002. Israr Ali v. The State 2007 SCMR 7525, and Saleemuddin v. The State, 2011 SCM R 1171. Considered it as a mitigating circumstance for withholding the penalty of death and, while maintaining the conviction of the appellant, we alter his sentence of death to that of imprisonment for life, whereas the remaining sentences will remain intact. The benefit of section 382-B of the Cr.P.C. Shall also be given to the appellant.
' Sentence reduced. Murder Reference is answered in negative.