Malik Shahzad Ahmad Khan, J.--This judgment shall dispose of Criminal Appeal No, 294-J of 2008 filed by Mamoon-ur-Rashid alias Abdul Rashid appellant and Murder Reference No, 547 of 2007, sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Mamoon-ur-Rashid alias Abdul Rashid, appellant, as both these matters have arisen out of the same judgment dated 30.07.2007, passed by the learned Additional Sessions Judge, Faisalabad, whereby, Mamoon-ur-Reshid alias Abdul Rashid, appellant was convicted under Section 302(b) of, PPC for committing the murder of Ishtiaq Ahmad, deceased and sentenced to death with a direction to pay the compensation amount of Rs, 1,00,000/- (Rupees One Hundred Thousand only) to the legal heirs of deceased as envisaged under Section 544-A of, Cr.P.C. and in default, thereof, to suffer simple imprisonment for six months S.I.
2. Brief facts of the case as given by the complainant Muhammad Ismail (PW-9) in his 'Fard Biyan'
Exh. P-C on the basis whereof the formal FIR Exh.P-C/1 was recorded, are that his brother Mushtaq Ahmad was murdered and in order to make arrangements for his 'chaleeswaan' ceremony which was scheduled to be held on 14.03.2002 he (complainant) alongwith his brother Zulfiqar Ali (PW-10), Abdul Qayyum (given up PW) and Ishtiaq Ahmad (deceased) on 13.03.2002 at about 9:45 p.m. came out of his house in order to go to the house of Mushtaq Ahmad. As they came out of the house they saw accused Abdul Hafeez (since acquitted), Abdul Rashid (appellant), Muhammad Sharief (since acquitted), Muhammad Akmal (since proclaimed offender), Muhammad Afzal (since acquitted) and two unknown co-accused all armed with fire-arm weapons were standing at a 'pulli' in front of the house, who were identified in the light of electric bulb. Muhammad Sharief (accused since acquitted) raised lalkara that they will teach them a lesson for successive police raids at them, whereupon Abdul Rashid (appellant) made a fire shot, which landed on the left side of the chest of Ishtiaq Ahmad (deceased). All the accused fled away from the place of occurrence while brandishing their fire-arm weapons. The injured Ishtiaq Ahmad succumbed to the said injury at the spot.
3. The appellant and Muhammad Akmal accused were declared as proclaimed offenders and challan under Section 512, Cr.P.C. was submitted before the Court. The case of co-accused namely Abdul Hafeez, Muhammad Sharif and Muhammad Afzal was separated, they were tried and ultimately acquitted by the learned trial Court. The appellant was arrested in another case FIR No, 72/2002 dated 06.02.2002 registered at Police Station Jaranwala. On 12.03.2006 Abdul Ghafoor, SI/Investigating Officer (PW-12) caused his formal arrest in this case and on 19.03.2006 he led to the recovery of .30 bore pistol (P-4) alongwith two live bullets P-5/1-2 through memo. Exh. P-K. After completion of investigation, the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant on 08.05.2006, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced twelve witnesses, during the trial.
Muhammad Ismail (PW-9) and Zulfiqar Ali (PW-10) are the witnesses of ocular account.
The medical evidence was furnished by Dr. Muhammad Ashfaq (PW-6). Muhammad Akram 2356/C (PW-8) was the witness of recovery of pistol .30 bore P-4 alongwith, two live bullets, P-5/1-2 on the disclosure of Abdul Rashid (appellant). Abdul Ghafoor, SI (PW-12) was the Investigating Officer of this case.
Muhammad Anwar (PW-1), Aurangzaib, Draftsman (PW-2), Muhammad Javaid, Moharrar (PW-3), Muhammad Arshad 3171/C (PW-4), Ashiq Hussain (PW-5), Sadiq Ali Shah, (Rtd) Inspector (PW-7), Muhammad Akram 2356/C (PW-8) and Mukhtar Ahmad ASI (PW-11) are the formal witnesses.
5. The statement of the appellant u/S. 342, Cr.P.C. was recorded by the learned trial Court, He refuted the allegations levelled against him and professed his innocence. While answering to question that "Why the prosecution witnesses deposed against you and why this case against you the appellant replied as under:-- Mamoon-ur-Rashid alias Abdul Rashid.
It is a false case. I am falsely involved in this case due to revious enmity with the complainant party.
All the story of complaint Ex.PC is not only incorrect but also dis-proved during the trial of co- accused Muhammad Sharief Muhammad Afzal and Abdul Hafeez. All the PWs are related inter-se and they are also inimical towards me. They have deposed totally false against me. I am innocent in the murder of Ishtiaque Ahmad. The police proceedings are totally baseless and partial."
6. The learned trial Court vide judgment dated 30.07.2007, found Mamoon-ur-Rashid alias Abdul Rashid appellant guilty, convicted and sentenced him as mentioned and detailed above.
7. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case because of previous enmity; that it was a night time occurrence, which was un-witnessed and the appellant has been implicated in the case on the basis of suspicion; that the evidence of the prosecution has been disbelieved qua other co- accused who have admittedly been acquitted and their acquittal has not been challenged either by the State or by the complainant and that the appellant cannot be convicted on the basis of same evidence; that the abscondance of the appellant has not been proved in accordance with law; that Muhammad Anwar (PW-1) in his statement has admitted that he prepared his report Exh.P-A/1 under the direction of Investigating Officer; that recovery of pistol P-4 is inconsequential as no empty was recovered from the place of occurrence and that there is no report of Forensic Science Laboratory qua the above mentioned pistol; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt, thus, this appeal be accepted and the appellant may be acquitted from the charge.
8. Notice was issued to the complainant. On the last date of hearing i,e, 13.12.2012, learned DPG stated that the complainant was duly informed about the fixation of this appeal through his son.
However, in the interest of justice, fresh notice was ordered to be issued to the complainant. Today, again no body has entered appearance on his behalf, therefore, we proceed to decide this case after hearing the arguments of learned counsel for the appellant, learned DPG and going through the available record.
9. Learned Deputy Prosecutor-General, for the State, opposes this appeal on the grounds that there is no delay in reporting the matter to the police; that the occurrence took place on 13.03.2012 at about 09:45 p.m. and statement of the complainant was made to the police on the same night at 11:50 p.m.; that there is a specific allegation against the appellant of making a fire shot, which hit on the chest of the deceased and the role attributed to the appellant is fully supported by the medical evidence; that prosecution case is further corroborated by the recovery of pistol P-4 from possession of the appellant vide recovery memo. Exh.P- K; that case of the appellant is distinguishable from the case of co-accused, who have been acquitted; that the appellant remained absconder for a considerable period which further corroborates the prosecution version; that there is no mitigating circumstance in this case; that the sentence of death was rightly awarded to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.
10. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance.
11. The occurrence in this case took place on the intervening night of 13/14.03.2002 at 09:45 p.m., outside the house of complainant situated in Chak No, 70/Gaaf Bay' within the area of Police Station Jaranwala, District Faisalabad. The matter was reported to the police on the same night at 11:50 p.m. by the complainant Muhammad Ismail (PW-9) through 'Fard Biyan' Exh. P-C, on the basis, . whereof, formal FIR Ex.P-C/1 was also registered on the same night at 12:25 a.m. The distance between the place of occurrence and police station is 12 Miles (20 Kilometers). Considering all the above mentioned facts, time and place of occurrence and its distance from the Police Station, we are of the view that there is no delay in reporting the matter to the police.
12. The ocular account of the prosecution was furnished by the complainant Muhammad Ismail (PW-9), and Zulfiqar Ali (PW-10). The examination-in-chief of Muhammad Ismail (PW-9) recorded by the learned trial Court is reproduced hereunder for ready reference:-- "On 06.02.2002 my brother Mushtaq Ahmed was murdered by Abdul Rashid alias Mamoon-ur- Rashid present in the Court Abdul Hafeez, Amjid Ali and Muhammad Akmal and for the arrest of aforementioned accused we were helping the police to conduct the raid and my son Ishtiaq deceased was on forefront. On 14.03.2002 there was 'chaleeswan' ceremony of my deceased brother Mushtaq. For the arrangement of said ceremony on the night of 13.03.2002 myself Zulfiqar Ali, Abdul Qayyum and my deceased son were going towards the house of Mushtaq from our house in the night. I saw Abdul Rashid alias Mamoon-ur-Rashid armed with .30 bore pistol present in the Court, Abdul Hafeez armed with .12 bore gun Muhammad Sharif armed with .12 bore gun (both since acquitted) and Muhammad Akmal (since PO) armed with .12 bore double barrel gun alongwith two unknown persons were standing on 'Saim Nala Pulli', Muhammad Sharif accused raised Lalkara that they should be taught lesson for having the raid of police conducted every day.
All the above named accused started firing straight on us. The fire shot made by Abdul Rashid alias Mamoon-ur-Rashid hit on the chest of my son Ishtiaq deceased on left side. He fell down on the ground. The accused persons left the place of occurrence by making firing. I myself Zulfiqar Ali and Abdul Qayyum PWs tried to approach Ishtiaq but he succumbed to the injuries on the spot immediately. I left Abdul Qayyum and Zulfiqar Ali near the dead body and myself left for the police station to make report. At about 11:45 p.m. when I reached near `Bungala Jassoana, I met the police there. I made the statement before the police which was reduced into writing by the SI and read over to me and I signed the same in token of its correctness which is Ex.PC. The police accompanied me to the village and reached the place of occurrence. The police inspected the place of occurrence and collected the blood-stained earth and dispatched the dead body to the hospital for the purpose of post-mortem examination.
On 09.03.2004 I alongwith Ajmaile joined the investigation and Abdul Hafeez accused got recovered gun .12 bore.
On 19.03.2006 I alongwith Muhammad Ilyas were present in the police station in connection with the investigation of this case where the accused Mamnoon-ur-Rasheid now present in Court made a disclosure that he can get recovered the weapon of offence. Then he led to the place of recovery near Gogara Branch Canal bank and dig out from the reed bushes the pistol .30 bore P-4 alongwith two alive bullets P-5/1-2 which were taken into possession by the police vide recovery memo. Ex.PK attested by me and Muhammad Ilyas PW.
The statement of the other eye-witness namely Zulfiqar Ali (PW-10) is also on the same lines.
The above mentioned eye-witnesses namely Muhammad Ismail (PW-9) and Zulfiqar Ali (PW-10) were cross-examined at length but their evidence could not be shattered during the process of cross-examination. They corroborated each other on all material aspects of the case. Their evidence is straight forward and confidence inspiring. Muhammad Ismail (PW-9) is real father whereas Zulfiqar. Ali (PW-10) is real uncle of Ishtiaq Ahmad (deceased). It is highly improbable that they will falsely implicate the appellant and would let of the real culprit. Substitution in such like cases is a rare phenomena.
13. The medical evidence of the prosecution was furnished by Dr. Muhammad Ashfaq (PW-6). The injury attributed to the accused by the above mentioned eye-witnesses of the occurrence was fully supported by the above mentioned medical evidence because according to the story narrated by the complainant Muhammad Ismail (PW-9) in his Tard Biyan' Exh.P-C in the FIR Exh.P-C/1, as well as, in his statement before the learned trial Court, the fire shot made by Mamoon-ur-Rashid alias Abdul Rashid appellant landed on the Chest of Ishtiaq Ahmad (deceased), and according to the medical 'evidence the injury on the chest of the deceased was a fire-arm lacerated entrance wound. As per evidence of Dr. Muhammad Ashfiaq (PW-6) the said injury was the cause of death of the deceased.
14. The prosecution has also produced the evidence about the recovery of pistol .30 bore P-4 alongwith two live bullets P-5/1-2 allegedly recovered from the possession of Mamoon-ur-Rashid alias Abdul Rashid appellant. No empty was recovered from the place of occurrence. There is no report of Forensic Science Laboratory regarding the said pistol, therefore, the above mentioned evidence of recovery is of no avail to the prosecution.
15. So far as the motive is concerned, according to the prosecution case brother of the complainant was murdered and the police was conducting raids at the accused party and due to the said grudge the accused persons committed the murder of Ishtiaq Ahmad, deceased. We have noted that the complainant Muhammad Ismail made material improvements in his statement before the Court in respect of the motive part of the prosecution. It was not mentioned in the FIR Exh.P-C/1 that his brother Mushtaq Ahmad was murdered by Mamoon-ur-Rasheed alias Abdul Rashid appellant, whereas while appearing before the Court he stated that his brother Mushtaq Ahmad was murdered by the appellant. We have also noted that in the FIR, as well as, in the statement before the Court the prosecution witnesses have stated that it was Muhammad Sharief accused (since acquitted), who raised lalkara' that the deceased be taught a lesson for arranging the repeated raids of police at the houses of accused persons. The motive was jointly attributed to the appellant, as well as other co-accused namely Abdul Hafeez, Muhammad Sharief and Muhammad Afzal but all the remaining co-accused have already been acquitted by the learned trial Court. We are, therefore, of the view that the motive as alleged by the prosecution against the appellant is not proved in this case. No convincing evidence has been produced by the prosecution to prove the alleged motive, therefore, we are of the view that motive as alleged by the prosecution has not been proved in this case.
16.The prosecution has also produced evidence qua the abscondance of the appellant through Muhammad Anwar (PW-1) and the copy of warrant of arrest Exh.P-A and report Exh.P-A/1 were also placed on the record. Muhammad Anwar (PW-1) has admitted during his cross-examination that he did not associate any respectable of the locality, like Lumberdar or School Teacher during the proceedings under Section 87 of, Cr.P.C. It is further admitted that neither statement of any respectable person of the area nor his signatures were obtained during the above mentioned proceedings. He has further conceded that the report Exh.P-A/1 was written by him in the Police Station according to the direction of the Investigating Officer. We are, therefore, of the considered view that the proceedings regarding the abscondance of the appellant have not been carried out in accordance with law, therefore, the above mentioned evidence whereby the appellant was declared as a proclaimed offender is not helpful to the prosecution case.
17. We have disbelieved the prosecution evidence of motive and recovery of pistol P-4, abscondance of the appellant however, if the evidence of motive, abscondance and recovery of pistol P-4 is excluded from consideration even then there is sufficient incriminating evidence available on the record against the appellant. As discussed earlier, the prosecution case was fully proved through the evidence of eye-witnesses namely Muhammad Ismail (PW-9) and Zulfiqar Ali (PW-10). They stood the test of lengthy cross-examination but their evidence could not be shattered, Their evidence is quite natural, straightforward and confidence inspiring. The ocular account of the prosecution as given by Muhammad Ismail (PW-9) and Zulfiqar Ali (PW-10) is supported by the evidence of Dr. Muhammad Ashfaq (PW-6), as well as, post-mortem report of deceased Ex.P-D & Ex.P-D/1, The time of occurrence, the seat of injury and the kind of weapon used, as mentioned by the eyewitnesses were supported by the aforementioned medical evidence, therefore, we hold that the prosecution has proved its case against the appellant beyond the shadow of any doubt.
18. Now coming to the quantum of sentence we have noted some mitigating circumstances in favour of the appellant firstly, co-accused of the appellant namely Abdul Hafeez, Muhammad Sharief and Muhammad Afzal have been acquitted by the learned trial Court while extending them the benefit of doubt and no appeal against their acquittal has been filed by the State or the complainant as stated by the learned DPG, secondly, we have already held that the alleged recovery of pistol P-4 alongwith bullets P-5/1-2 from the possession of the appellant is of no avail to the prosecution in absence of the Forensic Science Laboratory report and thirdly the prosecution has alleged a specific motive but has miserably failed to prove the same. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened which had resulted into the death of Ishtiaq Ahmad deceased, therefore, in our view the death sentence awarded to the appellant is quite harsh. It has been held in number of judgments of the Hon'ble Supreme Court of Pakistan that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of the accused. While treating it a case of mitigation, we have fortified our view by a judgment of the Hon'ble Supreme Court of Pakistan reported in the case of Ahmad Nawaz and another v. The State (2011 SCM R 593) wherein at Page 604, the Hon'ble Apex Court of the country, has been pleased to lay emphasis as under:-- The recent trend of the Courts with regard to the awarding of penalty is evident from several precedents. In the case of Iftikhar-ul-Hassan v. Israr Bashir and another' (PLD 2007 SC 111), it was held that:-- this is settled law that provisions of Sections 306 to 308, PPC attracts only in the cases of Qatl-i- Amd liable to Qisas under Section 302(A), PPC and not in the cases in which sentence for Qatl-e- amd has been awarded as Tazir under Section 302(b), PPC. The difference of punishment for Qatle-amd as Qisas and Tazir provided under Section 302(a) and 302(b), PPC 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), PPC and exercise of this direction 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 'Abdul Salam v. State' (2000 SCM R 338).
The Court while maintaining the conviction under Section 302(b), PPC awarded him sentence of life imprisonment under the same provision and also granted him the benefit of Section 382-B of, Cr.P.C. In Muhammad Riaz and another vs. The State (2007 SCM R 1413) while considering the penalty for an act of commission of Qatl-eAmd it was observed that 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."
(In Iftikhar Ahmad Khan v. Asghar Khan and another (2009 SCM R 502) it has been noted that)-- "In other words, the law has conferred discretion upon the Court to withhold the penalty of death and to award the punishment of imprisonment for life, if the outlook of a particular case requires that course" (underlining, italic and bold supplied)."
19. Due to the above mentioned reasons the conviction of Mamoon-ur-Rashid alias Abdul Rashid appellant under Section 302 (b), PPC awarded by the learned trial Court is maintained but his sentence is altered from the death to imprisonment for life. The compensation awarded by the learned trial Court and sentence in default thereof is maintained and upheld. The benefit of Section 382-B of Cr.1.C. is also given to the appellant.
20. Consequently with the above said modification, in Che sentence, of Mamoon-ur-Rashid alias Abdul Rashid appellant Criminal Appeal No, 294-J of 2008 filed by Mamoon-ur-Rashid alias Abdul Rashid appellant is hereby dismissed. Murder Reference (M.R. No, 547 of 2007) is answered in the negative and death sentence of Mamoon-ur-Rashid alias Abdul Rashid appellant is not confirmed.