' ASSADULLAH KHAN CHAMKANI, J.---Impugned herein is the judgment dated 16-6-2010, passed by learned Additional Sessions Judge/Izafi Zilla Qazi, Wari, District Dir Upper, whereby Khaista Bacha alias Bacha son of Anwar Said was convicted and sentenced under section 302(b), P.P.C. To death (on two counts) and also fine to Rs,10,00,000 (One million rupees) in toto at the rate of Rs,5,00,000 (five lac rupees) for each deceased as compensation under section 544-A, Cr.P.C. To be paid to the legal heirs of each deceased. The compensation was ordered to be recoverable as arrears of land revenue or in default of payment of fine to suffer six months' S.I.
2. Khaista Bacha filed Criminal Appeal No,569 of 2010 against his conviction and the learned trial Court has sent Murder Reference No,22 of 2010 for confirmation of the death sentence awarded to the accused-appellant Khaista Bacha.
3. We intend to dispose of the Criminal Appeal No,569 of 2010 and Murder Reference No,22 of 2010 through this single judgment.
4. Muhammad Ismaeel Khan (P.W.9) received information that dead bodies were brought to Civil Hospital, Wari, therefore he rushed there, where Habib ur Rehman (P.W.1) lodged a report that on 2- 9-2006 he along with his father Razi Khan, son Qadir Khan and wife Mst. Gul Bibi had gone to Sandal in connection with offering Fatiha and stayed in the house of his son-in-law namely Bacha Zada. On 5-9-2006 he was talking with his son-in-law regarding taking of his daughter Mst.
Samina Bibi, the wife of accused, with him. During talking exchange of hot word took place between his son-in-law and his wife, in the meanwhile, at 20.00 hours, his son-in-law Bacha Zada started firing at his wife Gul Bibi and daughter Mst. Samina Bibi with the intention to kill them with his Kalashnikov as a result of which Mst. Samina was hit and died on the spot while his wife also succumbed to her injuries on the way to hospital. The incident was stated to be witnessed by Razi Khan and Qadir Khan besides him. Report of the complainant was recorded in shape of Murasilla Exh.P.W.5/1 and sent it to Police Station, Wari, and on the basis of which case vide F.I.R. No,679 under sections 302, P.P.C. Was registered at Police Station, Wari, on 6-9-2006.
5. P.W.9 after recording report of the complainant, prepared the inquest .Reports and injury sheets of the deceased, thereafter, visited the spot, prepared the site plan Exh.P.W.9/6 at the pointation of complainant and eye-witness. During spot inspection, he picked up blood-stained earth from the places of deceased and took the same vide memo Exhs.P.Ws.9/7 and 9/8. He also took into possession blood-stained garments of the deceased vide memo Exhs.P.Ws.9/9 and 9/10. Since, the legal heirs of the deceased were not interested in postmortem examination of the deceased, therefore, receipts regarding nonconducting of postmortem examination and handing over the dead bodies were obtained from the legal heirs marked as Exh.P.W.9/11 to Exh.P.W.9/14. As the accused was avoiding his lawful arrest, therefore, he also obtained warrant under section 204, Cr.P.C. And notices under section 87, Cr.P.C. Against the accused. He also sent blood-stained articles to FSL and report thereof is Exh.P.W.9/21. After completion of the investigation complete challan against the accused was submitted under section 512, Cr.P.C.
6. On 8-4-2009, accused-appellant was arrested and supplementary challan against him was submitted. The learned trial Court after compliance of the legal- formalities, framed the formal charge to which he did not plead guilty and claimed trial.
7. Prosecution in order to prove its cases, examined the witnesses, thereafter, the statement of the accused under section 342, Cr.P.C. Was recorded by the trial Court. The appellant-accused pleaded his innocence, however did not produce defence evidence nor appeared as his own witness in terms of section 340(2), Cr.P.C. Learned trial Court, after hearing the arguments of the parties, convicted and sentenced the accused-appellant, as stated above.
8. Learned counsel for the appellant argued that the appellant was charged in a delayed F.I.R. After due consultations and deliberations. He further contended that the eye-witnesses being closely related to the deceased and also inimical towards the appellant with further submission that independent corroboration of the eye-witnesses account is not forthcoming, therefore, the conviction of the appellant could not be maintained on their evidence. He submitted that the medical evidence is also not supporting the ocular evidence and that the prosecution also did not prove the motive learned counsel argued that there is no evidence of pre-planning, therefore, he deserves acquittal.
9. On the Other hand learned A.A.-G. Appearing on behalf of the State argued that the appellant is the single accused charged directly in the F.I.R. By name and that the ocular account is corroborated by the medical evidence, recoveries from the spot, motive, absconsion and positive FSL result. He further argued that the appellant is charged by name in the F.I.R., being son-in-law of the complainant, was known to the eye witnesses and there is no question of misidentification or a false charge and the appellant was rightly convicted and sentenced.
10. We have considered the arguments raised by learned counsel for the parties and have gone through the entire record with their valuable assistance.
11. The perusal of record would show that the report of the occurrence was lodged by Habib Khan complainant (P.W.1) within about four hours of the occurrence. The place of occurrence is situated in a far-flung area at a distance of 50/51 kilometers from the police station with no better transport facility, therefore delay in lodging of the report, in such circumstances, was of no significance and that too, when the witnesses were not cross-examined on the point of such delay nor any suggestion was put to them regarding deliberation and consultations. Statements of Habib Khan complainant (P.W.1), Qadir Khan (P.W.2) and Razi Khan (P.W.3) are consistent on material points.
The presence of P.W.1, P.W.2 and P.W.3 is established on the scene of occurrence. They deposed the ocular testimony and supported the prosecution version. Despite that they were subjected to very lengthy cross-examinations but nothing material could be brought out nor any dent could be created in their evidence. They stood firm and their veracity could not be shaken. The name of the eye-witness and role of accused-appellant for firing at the deceased has been mentioned therein, which get support from the medical evidence furnished by Dr. Fazal Baseer P.W.6. However, defence tried to make a case that the P.Ws. Were not present on the spot and the occurrence is unseen but there is no credible evidence on record to prove this version of the defence.
12. We have perused the medical report of Gul Bibi, injury sheets and inquest reports, which show that the injuries on the dead bodies of the deceased were of fire arm. Cause of death, according to opinion of Medical Officer, was occurred due to excessive bleeding. The injuries on the persons of deceased were attributed to have been caused at the hands of accused-appellant; therefore, medical evidence also supports the ocular account.
13. The appellant was the son-in-law of the complainant, therefore, the appellant was known to the complainant. Before the occurrence, there was an altercation between complainant and the appellant over the taking of deceased Samina Bibi, who was the wife of appellant, for, few days to his house, situated at District Mardan, therefore, there is no question of misidentification.
14. Learned defence counsel submitted that now it has been settled that Courts in a case involving capital punishment will not base conviction of an accused solely on the testimony of interested witness unless such evidence finds corroboration by some independent and unimpeachable piece of evidence or circumstance in the case but in the present case all the eye-witnesses are closely related to the deceased and their presence on the spot is not natural therefore, there is possibility of false implication of the accused with consultation and deliberation, but his this submission is not convincing one because Habib Khan complainant (P.W.1) Qadir Khan P.W.2 and Razi Khan (P.W.3) had come to the house of accused-appellant after offering "Fatiha" of one of his relatives there, so, their presence on the spot is natural. As far as his contention that the eye-witnesses are closely related to the deceased, no doubt, eye-witnesses are related inter se, but mere relationship is no ground to discard their evidence because the apex Court in number of cases has been held that statement of a witness cannot be disbelieved solely on the plea that he is related to the deceased.
An interested witness is a person who has a motive to falsely implicate a person. Considering the testimony of these eye-witnesses on the touchstone of the aforesaid criteria, we do not find their testimony is tainted or they had any motive to falsely implicate the appellant Khaista Bacha nor any enmity worth the name has been brought on record to show that they were implicating the appellant Khaista Bacha (Bacha Zada) in this case falsely. In this context reference may be made to Sharafat All v. The State, 1999 SCM R 329.
' In the present case, there was no previous enmity between the parties and due to relationship between them false implication of the accused was beyond consideration. There is no possibility to believe that the close relatives of the deceased would let the actual culprit scot-free and substitute an innocent person, i.e,, his son-in-law for the commission D of an offence involving capital punishment. The eye-witnesses charged the appellant in their statements recorded before the trial Court. Their statements went unchallenged and they remained consistent in their depositions.
15. The Investigating Officer P.W.9 also secured blood-stained earth from the crime spot. Though, internal examination of the dead body was not conducted but when the cause of death is apparent then non-conduct of post mortem is not fatal to the prosecution case. In Malakand and E Kohistan Area, internal examination of the dead body is not conducted on the request of the legal heirs of the deceased. In such a situation, non-conduct of post mortem is of no consequence, hence, not fatal to the prosecution case.
16. It is evident from the record that first exchange of hot words took place between the parties followed by the present occurrence. Any variation in the site plan and minor discrepancies in the statements of eye-witnesses is of no consequence because in a dramatic situation and State of panic no one can remember the minute details nor photographic view can be given.
17. The prosecution fully established the guilt of convict-appellant Khaista Bach (Bacha Zada), who is singly charged for firing at both the deceased. There is no possible reason to believe that the complainant party would let-free the real culprits and involve the present appellant because substitution in place of the real culprits, in any case, is very rare phenomenon, which is also not borne out from the record. In the facts and circumstances of the case, learned trial Court has rightly convicted the appellant.
18. As far the quantum of sentence to the accused-appellant is concerned, our judicial mind is disturbed to maintain the sentence of death because, admittedly, the occurrence had taken place in the house of accused-appellant as it is established from the record that the complainant party had come to the house of accused, where some sort of hot words were exchanged between the complainant party and accused-appellant as the complainant was interested to take his daughter Mst. Samina Bibi deceased, the wife of accused-appellant, to his house for few days but the appellant was not agreeing with the suggestion. At that juncture, the parties might have used unparliamentary language, which infuriated the accused-appellant, which has been suppressed by the parties, therefore, in our view; the occurrence took place on the spur of moment. The circumstances shows that there was no premeditation on the part of the appellant, therefore, it was not a case of capital punishment. 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. In the present case, there were circumstances forthcoming from the record which could be taken as extenuating/ mitigating circumstances for the purpose of awarding lesser sentence but the learned Court below has not duly attended to them when considering the quantum of sentence to be imposed on the appellant.
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. The Hon'ble Supreme Court in the case title Mir Muhammad alias Miro v. The State (2009 SCM R 1188) observed as under:--- "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."
' 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. Converted the sentence of Khaista Bacha appellant from punishment of death to imprisonment for life on two counts. Both the sentences shall run concurrently with benefit of section 382-B, Cr.P.C. While the remaining judgment of the trial Court with regard to payment of compensation is maintained.
' With the above modification, this Appeal bearing No,569 of 2010 is partly allowed and the Murder Reference bearing No,22 of 2010 is answered in NAGATIVE. .
Sentence reduced.