' RAUF AHMAD SHEIKH, J.---The appellants Peer Bakhsh alias Zulfiqar alias Bhutto, Khalid Hussain and Musa have assailed the vires of judgment dated 16-5-2006 passed by Malik Muhammad Nawaz Samitah, learned Additional Sessions Judge, Rajanpur, in case F.I.R. No.393 of 2003 dated 16- 7-2003 Police Station Jampur, District Rajanpur, under sections 302/393/34, P.P.C. (Sessions Case No.61/03/Sessions Trial No.1/04) whereby the appellants were convicted and sentenced as under:--
(i) Appellant Peer Bakhsh alias Zulfiqar alias Bhutto was convicted under section 302(b), P.P.C. And was sentenced to death and ordered to pay Rs.200,000 (Rupees two lacs only) as compensation under section. 544-A, Cr.P.C. And in default thereof to undergo further S.I. For one year. He was also convicted under sections 393/34, P.P.C. And was sentenced to seven years' R.I. And was ordered to pay compensation of Rs.50,000 and in default thereof to undergo further S.I. For six months.
(ii) Appellants Khalid and Musa were convicted under sections 393/34, P.P.C. And were sentenced to seven years' R.I. Each with an order to pay a sum of Rs.50,000 each as compensation and in default thereof to undergo further S.I. For six months.
(iii) Benefit under section 382-B Cr.P.C..Was extended to them.
2. The convict Peer Bakhsh alias Zulfiqar alias Bhutto has filed Criminal Appeal No.251 of 2006 against his conviction and sentence. The convicts Khalid. Hussain and Musa have also filed separate appeals i.e. Criminal Appeal No.323 of 2006 and Criminal Appeal No.339 of 2006 respectively against their conviction and sentences. Manzoor Ahmad complainant of the case has also filed Criminal Appeal No.584 of 2006 against the acquittal of Khalid son of Muhammad Bakhsh and Musa 'son of Karim Bakhsh respondents of the charge under section 302, P.P.C. The learned trial court submitted Murder Reference No.458 of 2006 under section 374, Cr.P.C. Seeking confirmation or otherwise of the death penalty awarded to appellant Peer Bakhsh alias Zulfiqar alias Bhutto. As all these matters are interconnected and interlinked so are being decided through this single judgment.
3. Briefly stated the prosecution version as set-forth in the F.I.R. (Exh.PF) recorded on the statement of Manzoor Ahmad son of Noor Muhammad, Caste Babbar, aged 50 years, Cultivator, resident of Chah Khailaywala Mauza Nawan Baigraj, is that on 16-7-2003 at about 8-15 p.m., he was present in his house. Someone called him by name from outside and asked him to, come out His son Ghulam Akbar went outside and he also followed him alongwith the Torch. In the light of the Torch, he saw Zulfiqar alias Bhutto son of Maki, Caste Arain, resident of Mauza Mehal Makwal, armed with Pistol, Khalid son Of Muhammad Bakhsh, Caste Birmani, resident of Massan Shah, Jampur, armed with Rifle and Musa son of Karim Bakhsh, Caste Bhatti, resident of Mauza Basti Hathi Ghauri Link Dajal armed with stick were standing there, who were duly identified by him, In the meanwhile his son Sajjad Hussain also arrived there after easing himself. Khalid appellant armed with Rifle asked them to hand over all cash lying in the house. Musa, Khalid and Bhutto started beating Ghulam Akbar, the complainant and Sajjad Hussain respectively. Sajjad Hussain over powered Zulfigar alias Bhutto and both grappled with each other. Sajjad Hussain set himself free and on this Zulfigar alias Bhutto made a straight fire, which landed on the right hand of Sajjad Hussain. Second fire landed on the front of left shoulder. Sajjad Hussain started running towards the door of 'Haven' on which Zulfigar appellant made the third fire, which hit Sajjad Hussain on the back of neck. Sajjad Hussain fell on the door of the 'Haveli'. On alarm, Mukhtar Ahmad son of Peer Bakhsh, caste Babbar, resident ' of Chah Khailaywala also arrived there and saw the occurrence. He along with his relatives was removing Sajjad Hussain in injured condition for treatment on Tractor Trolly towards Jampur, who succumbed to the injuries on the way. The dead body was present in the Hospital under the guard of Ghulam Akbar and Mukhtar Ahmad. He alleged that all the accused persons after making consultation came to commit the occurrence in his house and also gave physical beating to him and Ghulam Akbar.
4. After investigation the accused persons were sent up to face the trial. They were charged under sections 302/394/34, P.P.C. They pleaded not guilty and claimed the trial.
5. The prosecution produced 10 witnesses in addition to the documentary evidence to prove its allegations against the appellants. The medical evidence is adduced through Dr. Muhammad Nasrullah (P.W.4), who stated that on 16-7-2003 at about 11-00 p.m., he conducted the postmortem examination of the dead body of Sajjad Hussain deceased brought by Muhammad Akhtar No.388- C and found following injuries on his person:---
(1) A fire-arm wound of 1/2 x 1/2 cm with margins inverted and circular in shape present on the, dorsal surface of 2 cm distil to right wrist joint. (Wound of entry).
(2) A lacerated wound of 1 x 1 cm margins everted and irregular in shape present on the palmar surface of mid thenier eminence of right hand. (Wound of exit).
(3) A firearm .Wound of 1/2 x 1/2 cm margins inverted and circular in shape present on mid left supra clavicula fossa on posterior margin of clavical (Wound of entry).
(4) A lacerated wound of 1 x 1 cm margins everted irregular in shape present on medial margin of left scapular region (Ext).
(5) A firearm wound 1/2 x 1/2 cm margins inverted and circular in shape present on mid occipitals.
Region of neck upper 1/3rd (Wound of entry).
(6) A lacerated wound of 1 x 1 cm irregular in shape margins everted present on right half of mid front of neck (Wound of exit).
' He opined that all injuries were ante-mortem and were caused with fire arm. The death occurred due to haemorrhage and injuries to vital organs due to Injuries Nos.3, 4, 5 and 6, which caused hemorrhage, shock, asphyxia and vezovagal shock and same were sufficient to cause death in ordinary course of nature. The probable time between injuries was within 1/2 hour and between postmortem and death was within 2 to 5 hours. He proved carbon copy of postmortem report (Exh.PD) and pictorial diagrams (Exh.PD/1 and Exh.PD/2) and also proved his signatures on injury statement (Exh.PE) and inquest report (Ex.PE/1).
' He also stated that on the same day, he had conducted Medico-legal examination of Manzoor Ahmad complainant and found following injuries on his person:-
(1) A bruise of 4 x 2 cm oft the dorsal surface of mid left forearm. Movements are normal.
(2) A lacerated wound of half x half cm on the dorsal surface of proximal interphalangeal joint of little finger of right hand and is skin deep.
' He was of the opinion that the injuries were caused with blunt weapon and had been inflicted within 2 to 5 hours. He declared these injuries as Jurh Damiyah and proved copy of MLC (Ex.PC) alongwith injury statement (Ex. PC/1).
6. The ocular account is furnished by complainant Manzoor Ahmad (P.W.6.) and Ghulam Akbar (P.W.7.). Manzoor Ahmad (P.W.6.) almost reiterated the contents of F.I.R. (Exh.PF). He added that the accused persons had come for commission of dacoity and on their resistance injured him and also murdered Sajjad Hussain. Ghulam Akbar (P.W.7)' stated that S'ajjad Hussain deceased was his elder brother. About one year and 3 months and 4 days prior to the date of his statement i.e. 14-5- 2005, he alongwith his father Manzoor Ahmad was present in his house. At about 8-15 p.m.
Somebody called his father from outside and asked him to come out He went out of the house and his father followed him holding a Torch. They saw in the light of the Torch appellants Zulfiqar alias Bhutto armed with Pistol, Khalid armed with Rifle and Musa armed with `Sota' present outside the house. He knew all the three accused previously. In the meanwhile Sajjad tlussain deceased came there. Khalid accused asked his father to hand over the articles lying in their house. His fither refused to hand over the articles. Peer Bakhsh alias Zulfiqar accused caught hold of Sajjad Hussain deceased, Musa caught hold of the witness and Khalid accused gave injuries with the `Butt' of the Rifle to his father. Peer Bakhsh alias Zulfiqar and deceased Sajjad Hussain grappled with each other. In the meanwhile Sajjad Hussain got himself released from Peer Bakhsh accused. Peer Bakhsh made fire with his Pistol, which hit Sajjad Hussain on his right hand. The second fire made by him hit Sajjad Hussain on the left side of the shoulder. The deceased then ran towards his house.
Peer Bakhsh made third fire, which hit Sajjad Hussain on the back of his neck, who fell in the door of the `Haveli'
7. Khadim Hussain (P.W.1) stated that on 17-7-2003 Nazir Abbas, S.I. Gave him two sealed parcels containing bloodstained earth and crime empties, which he kept in safe custody and gave to Muhammad Akhtar No.388-C for delivery in the offices of the Chemical Examiner and FSL, Lahore, respectively. Muhammad. Akhtar (P.W.2.) stated that he delivered the said parcels in the respective offices on 5-8-2003. Muhammad Zulfiqar Saleem, Patwari (P.W.3.) has proved the site plan (Exh .
PB, Exh. PB/1 and Exh. PB/2). Riaz (P.W.5) has proved the recovery memo (Exh.PF) regarding securing of bloodstained earth, recovery memo (Exh.PG) of the crime empties P.5/1-3 and recovery memo (Exh.PH) of the Torch P.6.
8. The investigation of the case was initially conducted by Nazir Abbas (P.W.9.), who stated that he correctly recorded statement of the complainant (Ex.PF). It was read over to him, who put his thumb-impression in token of its correctness. He has proved the injury statement of Sajjad Hussain (Exh.PE), inquest report (Exh.PE/1) and injury statement of Manzoor Ahmad (Ex.PC/1 and added that he recorded statements under section 161, Cr.P.C. It is further stated that he inspected the place of occurrence, secured the blood-stained earth, where Sajjad Hussain had received injuries and had fallen on the ground vide recovery memo (Exh.PF) and converted it into a sealed parcel. He has also proved the recovery memo (Exh.PG) of the crime empties P.5/1-3, rough site plan (Exh.PK), memo (Exh.PA) of the last worn clothes of the deceased and recovery memo (Exh.PH) of the Torch P.6. Muhammad Iqbal (P.W.8) stated that he arrested the accused persons on 5-8-2003. It is further stated that Khalid accused while in Police custody on 5-8-2003 led to the recovery of Rifle 7 MM P.7 alongwith eight live bullets P.8/1-8, which were secured through memo of recovery (Exh.PG) and Musa Khan led to the recovery of `Lathi' P.9, which was secured through memo of recovery (Exh.PH). The witness further stated that on 12-8-2003 Peer Bakhsh alias Zulfiqar Bhutto appellant led to the recovery of Pistol .30 bore P.10 from the Iron Box lying in the room of his house and on unloading it five live bullets P.11/1-5 were recovered from the same, which were secured through memo of recovery (Exh.PJ). Ghulam Akbar (P.W.7) has corroborated his statement and stated that he had attested these memos of recovery.
9. The appellants in their statements under section 342, Cr.P.C. Denied the truthfulness of the prosecution allegations and veracity of the witnesses produced by it. Peer Bakhsh alias Zulfigar alias Bhutto contended that the local Police has involved him in this false case at the instance of the complainant due to suspicion and enmity with the complainant party. He further added that the P.Ws. Are closely related to the complainant and have deposed falsely. Appellant Khalid contended that he has been involved due to party friction. Appellant Musa contended that one Mureed Hussain Maisar is neighbourer of the complainant party and has close relations with the complainant being his landlord. He wanted to contract marriage with daughter of his father-in- law, who refused and give her hands to him and the complainant has involved him falsely under influence of said Mureed Hussain. They however, opted neither to lead any defence evidence nor to appear as witnesses under section 340(2), Cr.P.C.
10. We have heard the arguments advanced by Messrs Malik Muhammad Saleem and .Ch. Tariq Mahmood Farrukh, Advocates, learned counsel for the appellants, Mr. Munir Ahmad Sial, D.P.G., for the State and Ch. Faqir Muhammad and Mian Arshad Ali, Advocates, learned counsel for the complainant and have also minutely perused the record with their able assistance.
11. Malik Muhammad Saleem and Ch. Tariq Mahmood Farrukh, Advocates, learned counsel for the appellants have contended that there was no source of light and even if it is accepted for a while that the complainant was holding the Torch, the identification of the appellants was not possible; that the motive is not established as the gate of the house was open and had the appellants gone to commit dicoity, they would not have called the inmates and would have easily entered the house and taken them by surprise; that there was no trail of blood between. Different points where the deceased had allegedly sustained the injuries; that it was an unseen occurrence of deep darkness so the possibility of mis-identification cannot be ruled out; that the complainant has admitted that the I.O. Asked him about the source of identification so it is clear that the F.I.R. Was lodged after deliberations and that the 1.0. Had been trying to follow the foot prints so the identification of the accused persons was not established at the time of occurrence and they have been roped in the case falsely due to suspicion. In support of the contentions raised, reliance is placed on Khan Bakhsh alias Abdul Karim and 2 others v. State (2000 PCr.LJ 1402), The State v. Fazal Afimad and another (1970 PCr.LJ 633 (Peshawar), Nazeer Ahmad v. Gehne Khan and others (2011 SCM R 1473), Muhammad and 3 others v. The State (1972 PCr.LJ 1108) (Karachi) and Muhammad Achar v. The State (1991 PCr.LJ 522).
12. Mr. Munir Ahmad Sial,. Learned D.P.-G. Assisted by Ch. Faqir Muhammad and Main Arshad Ali, Advocates, learned counsel for the complainant have vehemently contended that the occurrence took place at about 8-15 p.m. On 16-7-2003 and the matter was reported at about 9-15 p.m. On the same day so there were no deliberations or consultations; that the parties live in the same vicinity and knew each other very well so the question of misidentification does not arise as the Torch with three battery cells gives sufficient light; that the weapons of offence were recovered from the appellants; that the positive report of FSL provides necessary corroboration; that the presence of the complainant and Ghulam Akbar P.Ws. At their residence at 8.15 p,m. Was very natural so they have rightly been relied upon by the learned trial court and that there is no possibility of substitution as a father whose young son aged about 23/24 years has been murdered would not let the actual culprits scot free and rope innocent persons in their place.
13. The prosecution case mainly hinges on the ocular account furnished by Manzoor Ahmad (P.W.6) and Ghulam Akbar (P.W.7) and the medical evidence adduced by Dr. Muhammad Nasrullah (P.W.4). The complainant Manzoor Ahmad (P.W.6) has categorically stated that Peer Bakhsh accused/appellant fired with his Pistol, which hit on the hand of Sajjad Hussain deceased, the second' fire made by him on his left shoulder, whereas the third fire made, while he was running towards his house, landed on the back of the neck of the deceased. Ghulam Akbar (P.W.7) has exactly narrated the occurrence on similar lines. This occurrence had taken place in front of the house of the complainant. The deceased and Ghulam Akbar (P.W.7) were his sons and inmates of the house. Their presence at the time of occurrence i.e. 8-15 p.m. Was very natural. They have categorically stated. That Peer Bakhsh alias Zulfiqar alias Bhutto had made the fires. Learned counsel for the appellants have vehemently contended that the occurrence had taken place in the darkness of the night so the identification of the accused in the light of the Torch was not possible..
The memo of recovery (Exh.PH) reveals that the Torch P.6 was in working condition and, three battery cells are used in it. This Torch is of medium size and could give sufficient light. Moreover the accused/appellants and P.Ws. Live in the same vicinity. P.Ws. Categorically stated that they knew the accused/appellants very well. Appellant Peer Bakhsh had not denied this aspect of the matter rather contended that he had previous enmity with the complainant and for this reason and also suspicion he has been roped falsely. At about 8.15 p.m. In the month of July, it is never pitch dark and one can easily be identified in the light of the large Torch having three battery cells. In Nazeer- Ahmad v.. Gehne Khan and others (2011 SCM R 1473), the Torch was not secured by the I.O. The case-law cited at the bar by the learned counsel for the appellants is not applicable on the facts of the present case due to distinguished facts. It has then been argued that Mukhtar Ahmad, who is first cousin of the complainant had arrived at the spot but he has not been examined because he was not ready to support the prosecution version so a reasonable doubt arises as to correctness of the prosecution allegations. The criminal cases are to be decided on the basis of quality of the evidence and veracity of the witnesses produced by the prosecution and not on their numbers.
Even otherwise according to P.Ws. He had arrived after the occurrence and F.I.R. Also reveals that he had arrived after the third fire so his non-production is not fatal to the prosecution case. It has then been urged that the complainant was asked by the I.O. To disclose the source of light and he produced the Torch and the I.O. Had also been following the tracks of foot-prints and as such the promptness in lodging the F.I.R. Is highly doubtful. The I.O. Was under obligation to verify the facts narrated in the F.I.R. And merely because he asked the complainant to show the source of light and tried to check the foot prints around the .House of the complainant would not show that the F.I.R.
Had been lodged after deliberations or preliminary inquiry. It is urged that the 1.0. Had stated that on the night of occurrence he had told the father of the appellant Peer Bakhsh that he had suspicion about his involvement so the defence plea that he has'been involved due to suspicion is established. On the first night after visiting the spot, the I.O. Could have not declared him connected with the commission of the offence certainty and if he stated that he had suspicion about his involvement, it will not adversely affect the case of the prosecution in any manner. Both P.Ws. 6 and 7 are the most natural witnesses and they have proved that the deceased lost his life due to fire made by Peer Bakhsh appellant. However, the complainant had not mentioned in the F.I.R. The seats of injuries sustained by him. Though it is alleged that Ghulam Akbar (P.W.7.) was also given' physical beating but he was not medically examined. The injuries allegedly sustained . By Manzoor Ahm'ad are minor in. Nature and could have been sustained even during scuffle while saving the life of his son Sajjad Hussain' from the hands of the appellant Peer Bakhsh so participation of the accused/appellants Khalid. Hussain and Musa in the occurrence is not positively established. This fact is further fortified from the statement of the complainant that Musa had held hands of Ghulam Akbar and Khalid had held his hands and they did not use their respective weapons so their participation in the occurrence bears a big question mark. This aspect is further strengthened from the fact that P.W.6 categorically stated that his son Sajjad Hussain went out. Of the house 2/3 minutes , before the occurrence and the door of his `Haveli' was open and had the appellants came there for commission of robbery, there was no need for them to call the inmates outside rather they would have easily entered the house by giving the inmates surprise in order to accomplish their task. He has also stated that the accused persons had 'not entered in the house for the purposes of theft, robbery or any other purpose prior to occurrence.
This shows that the motive as alleged by the prosecution is not the cause of occurrence and prosecution and appellant both have tried to conceal the actual cause of unfortunate episode.
14. The postmortem report as proved by P.W.4. Fully proves the sustaining of the injuries by the deceased on the right wrist joint, shoulder and neck. The postmortem was conducted at about 11.30 p.m. And according to the Doctor, the death had taken place within 2 to 5 hours prior to that, which means that the death had taken place at the time stated by the P.Ws. i.e. 8.15 p.m. The medical evidence, therefore, lends full support to the ocular account regarding Qatl- e-Amd of Sajjad Hussain.
15. P.W.9. Has stated that the appellant Peer Bakhsh made a disclosure and led to the recovery of Pistol .30 bore along with five live bullets P.11/1-5 in presence of Ghulam Akbar and Mukhtar Ahmad P.Ws. P.W.1 has stated that the parcel containing the empties was given to P.W.2 on 4-8-2003 and P.W.2 has stated that he delivered the parcel on 5-8-2003. The appellant Peer Bakhsh was arrested on 5-8-2003. The report of 'the Chemical Examiner shows that the docket was issued on 28-8-2003 so the parcel had been kept by the Police officials till the arrest of the accused and as such the report of the FSL is of no significance. There is another important aspect of the matter i.e. The complainant categorically stated that the accused was arrested on the same night so the factum of recovery having been made on 12-8-2003 is also not beyond doubt. However, it is an established law that the recovery of the weapon of offence and report of FSL are only for corrobo rative purposes and the non-recovery of weapon of offence or negative report of FSL don't disprove the prosecution version.
16. The above appraisal of the evidence proves it beyond any reasonable doubt that the appellant Peer Bakhsh has caused Qatl-e-Amd of Sajjad Hussain deceased. However, the motive as set up by the prosecution is not established. The occurrence did not take place during the robbery or an attempt to commit robbery. It is true that the absence or weakness of the motive is not fatal to the prosecution case but once it is set up and not proved then the prosecution must suffer the consequences. The failure of the prosecution to prove the alleged motive may be considered as a valid mitigating circumstance keeping in view the other important aspects of the case. In this case the report of FSL is insignificant and the factum of recovery is not above doubt so these facts coupled with failure of the prosecution to establish the motive constitute a valid mitigating circumstance. We are of the considered view that under these circumstances, the capital .Punishment was not warranted and the imprisonment for life would have served the ends of justice. In this respect, reliance is placed on Noor Muhammad v. The State and another (2010 SCM R 97) and Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCM R 1165). The involvement of the appellants Khalid Hussain and Musa in commission of the occurrence is not proved and the conviction recorded and sentences awarded to them are not sustainable.
17. For the reasons supra, Criminal Appeal No.323 of 2006 and Criminal Appeal No.339 of 2006 filed by Khalid Hussain and. Musa appellants respectively I are accepted and the conviction recorded and sentences awarded to them are set aside. Musa appellant is on bail and is discharged of the bail bonds. As per report submitted by Superintendent, Central Jail, Dera Ghazi Khan, Khalid Hussain appellant was released from Jail on 26-3-2009 on expiry of his sentence. Accordingly he is discharged of the bail bonds. Criminal Appeal No.584 of 2006 filed by Manzoor Ahmad complainant against the acquittal of Khalid and Musa i.e. Respondents Nos.1 and 2 therein of the charge under section 302, P.P.C. Is dismissed.
18. Criminal Appeal No.251 of 2006 filed by Peer Bakhsh alias Zulfiqar alias Bhutto appellant is partly accepted. The conviction recorded and sentence awarded to him under sections 393/34, P.P.C. Are j set aside. However, his appeal against the conviction recorded and sentence awarded under section 302(b), P.P.C. Is dismissed but the sentence of death awarded to him is commuted to imprisonment for life. The order of the learned trial court regarding payment of compensation under section 544-A, Cr.P.C. Is maintained, which would be recoverable as arrears of land revenue and if the same is not paid or recovered as above, the appellant will undergo S.I. For six months. He would be entitled to benefit under section 382-B, Cr.P.C. Murder Reference No.458 of 2006 is answered in the negative.