MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No. 1810 of 2005 titled as "Rashid Bashir v. The State", Criminal Revision No. 219 of 2006 titled as "Ali Muhammad v. Rashid Bashir and others" and Murder Reference No. 772 of 2005 titled as "State v. Rashid Bashir" as all these matters have arisen out of the same case i.e., F.I.R. No. 513 of 2004 dated 25-11-2004 offence under section 302, P.P.C. Registered at Police Station City Gojra, District Toba Tek Singh.
2. Rashid Bashir appellant has preferred Criminal Appeal No.1810 of 2005 against his conviction and sentence whereby he was convicted by the learned Additional Sessions Judge Gojra vide judgment dated 25-10-2005 and sentenced as under:-- ............ So the accused Rashid Bashir son of Bashir Ahmed is convicted under section 302(b), P.P.C.
And sentenced to death. Accused/convict Rashid Bashir son of Bashir Ahmed be hanged by his neck till he is dead. Rashid Bashir accused/convict is also held liable to make payment of Rs.50,000 as compensation to the legal heirs of Gul Muhammad (since deceased) under section 544-A, Cr.P.C. In default of payment of fine the accused/convict shall further undergo six months' SI."
The learned trial Court has sent Murder Reference No.772 of 2005 for confirmation or otherwise of the sentence of death awarded to Rashid Bashir (convict). Ali Muhammad (complainant) has filed Criminal Revision No.219 of 2006 for enhancement of the amount of compensation imposed upon Rashid Bashir respondent No.1 from Rs.50,000 to Rs. 2,00,000.
3. Brief facts of the case are that Ali Muhammad, complainant (P.W.6), on 25-11-2004, reported to Asghar Ali SI (P.W.8) through his statement (Exh.PA) that he was originally resident of District Tank Wazirastan and temporarily residing in Mohallah Taki Gojra. He along with Gul Muhammad (deceased) and Taj Muhammad brothers were doing the business of selling shoes at footpath in front of gate of Jinnah Park. On 25-11-2004 at "hout 10-00 a.m when he along with Gul Muhammad (deceased) and Taj Muhammad brothers was busy in selling shoes, one person whose name was later on known as Rashid Bashir son of Bashir Ahmed came to purchase shoes and during this transaction a scuffle arose between said Rashid Bashir (appellant) and Gul Muhammad (deceased) but the matter was patched up by the complainant and others. Whereafter Rashid Bashir left the said place. At about 1-30 p.m, the complainant, Gul Muhammad (deceased) and Taj Muhammad were busy in selling shoes, when said Rashid Bashir son of Bashir Ahmad caste Rawal resident of New Plot Gojra emerged at the spot while armed with a chhuri and raised lalkara that he would not Kaye Gul Muhammad alive and would teach him lesson for insulting him. Rashid Bashir (appellant) inflicted three successive blows of chhuri which landed upon Gul Muhammad (deceased) on the left side below and above his heart as well as upon his cheek on left side. Upon hue and cry raised by the victim the complainant along with Taj Muhammad brother and Muhammad Naseem son of Karim Dad caste Pathan a nearby shoe seller witnessing the occurrence tried to. Apprehend Rashid (appellant) but he decamped from the place of occurrence by raising lalkaras. Gul Muhammad injured fell on the ground. The complainant, Taj Muhammad and Muhammad Naseem son of Karim Dad rescued Gul Muhammad (deceased). He was escorted to the Eye-cum-General Hospital Gojra but he succumbed to the injuries over there.
4. The complainant proceeded to the Police Station for lodging F.I.R. After leaving Taj Muhammad and Muhammad Naseem (P.W.7) to guard the dead body of Gul Muhammad (deceased). Police met him at Katchery Chowk where the complainant made a statement, which was reduced into writing vide Exh.PA. Thereafter, Asghar Ali S.-I. Sent the same to the Police Station for registration of formal F.I.R. Through Muhammad Arshad 709/C (P.W.2). On the same day, he proceeded to THQ Hospital and inspected the dead body of Gul Muhammad (deceased). He prepared injury statement (Exh.PF) and inquest report (Exh.PG). Thereafter he handed over the dead body of deceased to Muhammad Aslam 109/C (P.W.3) for post mortem examination upon the same. He also visited the place of occurrence from where he secured blood-stained earth vide memo (Exh.PD). He also prepared the rough sketch of site plan (Exh.PH). Muhammad Aslam 109/C (P.W.3) handed over to him last worn clothes of the deceased Qameez P-2, Shalwar P-3, and. Vest P-4 which were secured vide memo (Exh.PC). He arrested the appellant on 26-11-2004. On 28-11-2004, he also summoned the Draftsman (P.W.5) and got prepared scaled site plan in duplicate from him (Exh.PE and Exh.PE/I) on 30-11-2004. On 29-11-2004 Rashid Bashir (appellant) in Police custody led to the recovery of Chhuri P-1 from near octroi post Gojra-Toba Road, which was taken into possession vide recovery memo (Exh.PB). He deposited the parcels relating to this Case with the Muharrir (P.W.1) for safe custody and onward transmission to the office of Chemical Examiner. He conducted the investigation and got the appellant challaned in this case.
5. Copies of the documents were provided to the appellant under section 265-C, Code of Criminal Procedure, vide order dated 25-2-2005. Formal charge was framed against the appellant on 12-3- 2005, to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined nine witnesses, in all. Muhammad Taman MHC appeared as P.W.1 and stated that on 25- 11-2004 he was posted as Moharrir at Police Station City Gojra. On the same day Asghar Ali S.-I. Sent complaint Exh.PA through Muhammad Arshad 709/C (P.W.2) and he recorded formal F.I.R. Exh.PA/1.
On the same day Asghar Ali SI handed over to him a parcel containing blood stained earth, which he kept in the malkhana in safe custody. On the same day Investigating Officer entrusted to him last worn clothes of,the deceased for keeping the same in safe custody in police malkhana. On 29- 11-2004 Asghar Ali S.-I./Investigating Officer entrusted to him another sealed parcel said to contain blood-stained chhuri for its safe custody in the malkhana. On 12-12-2004 he handed over the sealed parcel of blood-stained chhuri to Muhammad Arshad 709/C (P.W.2) for their onward transmission to the office of Chemical Examiner Lahore. Muhammad Arshad 709/C appeared as P.W.2 and stated that on 25-11-2004 Asghar Ali S.-I. (P.W.8) handed over to him complaint Exh.PA and he entrusted the same to Muhammad Zaman MHC (P.W. I). On 29-11-2004 he joined the investigation. On that day Rashid Bashir (appellant) made disclosure and led to recovery of blood- stained chhuri P-1, which was taken into possession vide memo Exh.PB. On 12-12-2004 Muhammad Zaman MHC (P.W.1) entrusted to him two sealed parcels said to contain blood-stained earth and blood-stained chhuri for their onward transmission to the office of Chemical Examiner. He deposited both those parcels on the next day in the said office. Muhammad Aslam 109/C appeared as P.W.3 and stated that on 25-11-2004 he joined the investigation. On that day Asghar Ali S.-I. (P.W.8) entrusted to him dead body of Gul Muhammad (deceased) in Civil. Hospital Gojra where he escorted the same and produced before the doctor (P.W.9) for its autopsy. On that day the doctor after performing post mortem on the dead body handed over to him stitched dead body, police papers, a copy of post mortem report and the last worn clothes of the deceased. He handed over the dead body to the heirs of the deceased and produced the last worn clothes, police papers and copy of post mortem report to Asghar Ali S.-I. Which were taken into possession vide recovery memo Exh.PC. Fateh Khan appeared as P.W.4 and stated that in his presence Police took blood-stained earth from place where Gul Muhammad deceased was injured, made into sealed parcel and took the same into possession vide recovery memo Exh.PD, signed by him and Akbar Khan. Syed Kazim Hussain Gilani Draftsman appeared as P.W.5 and stated that upon the pointation of the Investigating Officer and prosecution witnesses he prepared the scaled site plan (Exh.PE) in duplicate. Ali Muhammad (P.W.6) and Muhammad Naseem (P.W.7) furnished the ocular account as set down in the F.I.R. Asghar Ali S.-I. Who investigated this case appeared as P.W.8 and stated the various steps taken by him during the course of investigation. Dr. Muhammad Aslam Senior Medical Officer, Eye-cum-General Hospital, Gojra appeared as P.W.9 and stated that on 2- 11-2004 he conducted post mortem examination on the dead body of Gul Muhammad (deceased).
Learned Special Public Prosecutor gave up Muhammad Yaqub 385/C and Akbar Khan P.Ws. Being unnecessary vide his statement dated 20-4-2005. Similarly vide statement dated 4-5-2005 he gave up Taj Muhammad P.W. Being unnecessary. Learned Special Public Prosecutor after tendering in evidence report of Chemical Examiner of Chhuri (Exh.PJ) and that of Serologist (Exh.PJ/1), report of Chemical Examiner relating to blood-stained earth (Exh.PK) and that of Serologist (Exh.PK/1) closed the prosecution evidence vide his statement dated 20-6-2005. Statement of the appellant under section 342, Code of Criminal Procedure, was recorded on 20-6-2005.. To a question as to why the case against him and why the P.Ws. Had deposed against him, the appellant replied as under:-- "It is a false case against me and the P.Ws. Have deposed falsely being closely related to the deceased, being interested witnesses. In fact on the fateful day at the time of occurrence I was passing through the bazaar in front of shop of the complainant whereupon Gul Muhammad deceased had grappled with me by misunderstanding that I had abused him a day earlier.
Whereas I had not abused the deceased, The deceased was armed with a chhuri and had chhuri in his right hand tried to inflict chhuri blow on my person. I was taller than him and was physically strong than the deceased, therefore, I had overpowered him and grappled with him. In this process the chhuri blow inflicted by the deceased on my person had hit his own person on the left side and similarly he tried again to injure me but instead second chhuri blow had hit his own person by his (deceased) own hand. The deceased fell injured over there and no P.W. Witnessed the occurrence.
They have been planted as false witnesses against me due to their close relationship with the deceased. Weapon of offence was not got recovered at my instance. The deceased himself deals in chhuris sale business. I had no enmity with the deceased and even I did not know him personally.
I myself was a stranger in Gojra City and had no grudge against the deceased to murder him. The deceased succumbed to the injuries at the spot as he could not be provided first aid immediately as no person was present there to transport him to the hospital."
The appellant did not appear as his own witness as provided under section 340(2), Code of Criminal Procedure. However, Muhammad Sarwar and Muhammad Nawaz Danish were produced as D.W.1 and D.W.2 respectively in support of the plea raised by the appellant that in fact the deceased who was armed with a chhuri attacked the appellant and in the scuffle he sustained injuries at his own hands.
6. After conclusion of the trial, the learned trial court convicted the appellant as detailed above.
Hence this appeal.
7. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that both the witnesses of the ocular account i.e. Ali Muhammad (P.W.6) and Muhammad Naseem (P.W.7) are not the residents of the place where the occurrence took place and they have not been able to prove their presence at the spot; that even there are contradictions in the statements of the witnesses recorded before the Police under section 154, Code of Criminal Procedure, under section 161, Code of Criminal Procedure and before the learned trial Court; that there is conflict between the ocular account and the medical evidence as according to the F.I.R. The deceased sustained three injuries whereas according to the doctor (P.W.9) the deceased sustained only two injuries; that recovery of chhuri (P-1) has not been proved through reliable evidence; that the appellant has taken a specific plea and even produced two witnesses in support of his plea; and the plea of the appellant appears to be more plausible. At the end, learned counsel for the appellant has argued that if the court is not persuaded with arguments regarding acquittal of the appellant, then it is not a case of capital punishment as there was no previous enmity between the appellant and the deceased; that actually the quarrel and scuffle took place only once and the story of the prosecution that the earlier scuffle was patched up by the prosecution witnesses and thereafter the appellant came at the spot while armed with a chhuri is not probable in the circumstances of the case; that it has not been denied by the prosecution witnesses that there was no previous enmity between the parties; that the Investigating Officer (P.W.8) has admitted that the occurrence took place at the spur of moment, which is further corroborated from the size of chhuri P-1 which was taken into possession through recovery memo. (Exh.PB) which shows that it was an ordinary chhuri easily available in the homes and there was no premeditation.
8. On the other hand, learned Deputy Prosecutor-General, assisted by learned counsel for the complainant, opposes this appeal on the grounds that it was a promptly lodged F.I.R. Wherein the appellant alone is nominated as accused with specific role of causing repeated chhuri blows to the deceased; that the prosecution story is duly supported by the medical evidence furnished by (P.W.9); that recovery of the weapon of offence i.e. Chhuri (P-1) was effected at the pointation of the appellant, which was further corroborated by the positive reports of the Chemical Examiner (Exh.PJ) and Serologist (Exh.PJ/1); that the witnesses of the ocular account have no enmity for false implication of the appellant and even otherwise substitution in such-like cases is a rare phenomenon; that the plea raised by the appellant is absurd and does not appeal to common sense. He prayed that appeal of the appellant be dismissed and murder reference be answered in the affirmative.
9. We have heard learned counsel for the appellant as well as the learned Deputy Prosecutor- General for the State and learned counsel for the complainat at a considerable length and have also gone through the record very minutely.
10. In this case the occurrence took place on 25-11-2004 at 1-30 p.m. The matter was reported to the Police on the same day within an hour through statement (Exh.PA) of Ali Muhammad complainant (P.W.6), recorded at 2-15 p.m. Upon which formal F.I.R. (Exh.PA/1) was registered through Rappat No.7 at 2-25 p.m. In the F.I.R. All necessary details of the occurrence are duly mentioned. Moreover post mortem examination of Gul Muhammad deceased was also conducted on the same day at 5-30 p.m. Just after four hours of the occurrence. Distance between the place of occurrence and the Police Station is two furlongs. Therefore, we hold that the F.I.R. Was recorded promptly, which rules out any chances of false implication and also establishes the fact that the complainant of the case has witnessed this occurrence. Though according. To the F.I.R. The deceased sustained three injuries whereas according to the statement of Dr. Muhammad Aslam (P.W.9), Gul Muhammad (deceased) sustained only two chhuri blows but this contradiction in the circumstances of the case is not material. The ocular A account is thus fully supported by the medical evidence.
11. Ali Muhammad complainant (P.W.6) is the real brother of the deceased whereas Muhammad Naseem (P.W.7) is his co-villager. They have given plausible explanation for their presence at the place of occurrence, as they were doing the business of selling shoes at the same footpath.
Furthermore, presence of Ali Muhammad (P.W.6) and Muhammad Naseem (P.W.7) at the place of occurrence is further corroborated by the other circumstances i.e. Timely lodging of the F.I.R. (Exh PI) and post mortem examination of the deceased which was conducted on the same day just after four hours of the occurrence. Presence of the witnesses of ocular account has not even seriously been disputed by the defence. Though Ali Muhammad complainant (P.W.6) is related to the deceased but mere relationship of the witness is not sufficient to discard his evidence. In this respect, we respectfully refer to 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 undoubtedly 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."
Moreover, both these witnesses have no previous enmity with the appellant and there is no reason of his false implication by them in this case. It is a case of single accused and in such like cases, it is improbable that kith and kin of the deceased would let off the real culprit and substitute some innocent person. Here we refer to the case of "Khalid Saif Ullah v. The State" (2008 SCM R 688) wherein Hon'ble Supreme Court of Pakistan 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 made to the case of Irshad Ahmad and others v.
The State and others (PLD 1996 SC 138)."
12. The ocular account furnished by Ali Muhammad complainant (P.W.6) and Muhammad Naseem (P.W.7) is fully corroborated by the medical evidence furnished by Dr Muhammad Aslam (P.W.9), Senior Medical Officer, Tehsil Headquarters Hospital Gojra, who while appearing in the witness box stated that he conducted post mortem examination upon the dead body of Gul Muhammad.
(deceased) on 25-11-2004, and noted the following injuries on the person of the deceased:-- "(1) An incised wound 7 x 2 cm x DNP on upper part of left chest near left clavicle.
(2) An incised wound 3 x 1 cm x DNP on the lower and front part of left chest, 8 cm away from left lumber region."
According to P.W.9 the cause of death was haemorrhage and shock resulting from injuries No.1 and
2. These injuries were sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem in nature and were caused by sharp edged weapon. Probable time between injuries and death was immediate and time between death and post mortem was approximately four hours.
13. Now adverting to the plea raised by the appellant that the deceased was holding a chhuri in his right hand and due to misunderstanding he attacked at the appellant. The appellant overpowered him and during the scuffle the deceased sustained injuries at his own hands, which proved fatal. It does not appeal to common sense that by his own hands a person would sustain chhuri blows of the gravity which may prove fatal and cause death immediately as observed by the doctor (P.
W.9). The statements of defence witnesses, produced in this respect, are also not worth- consideration, therefore, the plea raised by the appellant is absurd. The same is rejected/discarded outrightly. Even otherwise the prosecution story seems more probable if the defence D plea is put in juxtaposition with the prosecution story, therefore, the prosecution has proved its case against the appellant beyond any shadow of doubt.
14. As far as quantum of sentence is concerned, we have noted that it is case of the prosecution that there was no previous enmity between the deceased and the appellant. The Investigating Officer (P.. W.8) in his cross-examination has admitted that the occurrence took place just at the spur of moment and there was no previous grudge and grouse between the parties. Therefore, we hold that it was only one incident which resulted because of mere altercation and the appellant caused chhuri blows which unfortunately proved fatal. The size of chhurri (P-1) as has been shown in the memo of recovery (Exh.PB) manifests that it was an ordinary chhuri which is easily available in the homes and this circumstance shows that there was no premeditation on the part .Of the appellant, therefore, it was not a case of capital punishment.
The Hon'ble Supreme Court of Pakistan in the case titled "Muhammad Arshad and 2 others versus The State" (PLD 1996 Supreme Court 122) at page 127 observed as under:-- "10. We first take up the question of sentence cf 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 are circumstances forthcoming from the record which could be taken as extenuating/mitigating circumstances for the purpose of awarding lesser sentence but the learned Courts 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 we imprisonment would meet the ends of justice."
By now it is well-recognized principle of law that the accused is entitled for the benefit of any doubt as an extenuating circumstance, while deciding question of sentence. We, here, respectfully refer to an observation of the Hon'ble Supreme Court of Pakistan 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 emphasized 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.
15. Apart from this, 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 honourable 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, may award the offender the punishment of death or imprisonment of life by way of tazir. The propostion 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, 09, the august Court was pleased to observe as under:-- "In Muhammad Riaz and another v. (2007 SCM R 1413) while considering the penalt act of commission of qatl-e-amd it was observed o doubt, normal penalty for an act of commission of qatl-e-amw provided under law is death, but since life imprisonment also thing 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. In this backdrop of the situation, we hold that it is not a case of capital punishment. We, therefore, while maintaining the conviction under section 302(b), P.P.C. Alter the sentence of Rashid Bashir appellant from punishment of death to imprisonment for life. The amount of compensation and the sentence of punishment in default thereof, as ordered by the learned trial Court, is maintained. The appellant is also extended the benefit of section 382-B, Code of Criminal Procedure.
17. For the above reasons Criminal Revision No. 219 of 2006 has no merits, which is dismissed accordingly.
18. Murder Reference No. 772 of 2005 for confirmation or otherwise of the sentence of death awarded to Rashid Bashir (convict) is answered in the NEGATIVE and the sentence of death is NOT CONFIRMED.