Malik Shahzad Ahmed Khan, J.--This judgment shall dispose of Criminal Appeal No, 352-J of 2006, filed by Muhammad Aslam appellant, Criminal Appeal. No, 353-J of 2006, filed by Ghulam Hussain appellant, and Murder Reference No, 622 of 2006 (The State us. Muhammad Aslam), sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Muhammad Aslam appellant, as all these matters have arisen out of the same judgment dated 15.09.2006, passed by the learned Additional Sessions Judge, Bhalwal, District Sargodha. Muhammad Aslam and Ghulam Hussain, appellants, were tried in case F.I.R. No, 282, dated 08.07.2005, registered at Police Station, Kot Momin, District Sargodha, in respect, of offences under Sections 302, 324, 449, 34 of, PPC. After conclusion of the trial, learned trial Court vide its judgment-dated 15.09.2006, has convicted and sentenced the appellants as under:-- MUHAMMAD ASLAM Under Section 302(b) of, PPC to death for committing Qatl-iAmd of Mst. Rabia Bibi (deceased). He was also directed to pay Rs, 1,00,000/- as compensation to the legal heirs of deceased as contemplated under Section 544-A of, Cr.P.C., and in default thereof he shall further undergo six months SI.
Under Section 324 of PPC to 10 years RI for attempting to commit the murder of the complainant Allah Yar (PW.8) and a fine of Rs,50,000/-, and in default thereof he shall further undergo six months SI.
GHULAM- HUSSAIN Under Section 302(b) read with Section 34 of, PPC to life imprisonment as he shared the common intention of Muhammad Aslam (appellant) for Qatl-e-Amd of Mst. Rabia Bibi. He was also directed to pay Rs, 1,00,000/- as compensation to the legal heirs of deceased as envisaged under Section 544-A of, Cr.P.C., and in default thereof he shall further undergo six months SI.
Under Section 324 of, PPC to 10 years R.I for sharing the common intention with Muhammad Aslam (appellant) to commit the murder of the complainant Allah Yar (PW.8) and a fine of Rs,50,000/-, and in default thereof he shall further undergo six months SI.
The substantive sentences were ordered to run concurrently of both the appellants. Benefit of Section 382-B of, Cr.P.C. was also given to both the appellants. The learned trial Court also observed that offence under Section 449/34 of, PPC was not made out.
2.Brief facts of the case as given by the complainant Allah Yar (PW.8) in the FIR (Ex.PG) are that Muhammad Aslam appellant was his son-in-law, Whereas, Ghulam Hussain appellant was nephew of his wife Mst. Rabia Bibi (deceased). On 08.07.2005, at 07:00 p.m., the complainant Allah Yar (PW.8) alongwith his son Zulfiqar (PW.9), Iqbal (given up PW) was present in his house. The wife of the complainant, namely, Mst. Rabia Bibi was present in the Courtyard and was busy in, the household work. In the meanwhile, Muhammad Aslam appellant while armed with gun and Ghulam Hussain appellant, empty-handed, entered the house of the complainant. Muhammad Aslam appellant raised Lalkara' that he had come to teach a lesson as his wife Mst Nazia Bibi was not sent with him one day prior to the occurrence. Ghulam Hussain appellant also raised Lalkara'.
Muhammad Aslam appellant made a fire shot with his gun, which landed below the right hip of Mst. Rabia Bibi (deceased), who fell down and succumbed to the said injury at the spot Muhammad Aslam appellant again made a fire shot at the complainant Allah Yar (PW.8), but the said fire shot missed. Both the appellants, thereafter, fled away from the place of occurrence.
The motive behind the occurrence as alleged was that the daughter of the complainant namely, Mst. Nazia Bibi was married to Muhammad Aslam appellant.
The relationship between the appellant Muhammad Aslam and Mst. Nazia Bibi became strained and she came to the house of the complainant. Muhammad Aslam appellant came to take his wife back, but it was refused by the complainant party, and due to the said grudge, the appellants committed the murder of the wife of the complainant namely, Mst. Rabia Bibi.
3.The appellants Muhammad Aslam and were arrested in this case on 18.07.2005, by Muhammad Amir SI (PW.6). During the course of investigation, on 22.07.2005, according to Muhammad Amir SI (PW.6), appellant Muhammad Aslam led to the recovery of gun .12 bore pump action (P.I) alongwith bag of cartridges (P.2/1-8), which was taken into possession vide recovery memo.
(Ex.PB).
After completion of investigation, the challan was prepared and submitted before the Court. The learned trial Court, after observing all legal formalities, as envisaged under the Code of Criminal Procedure, 1898, framed the charge against the appellants Muhammad Aslam and Ghulam Hussain on 23.12.2005, under Sections 302, 324, 449 read with Section 34 of, PPC, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced ten witnesses, during the trial. Muhammad Amir SI (PW.6) was the Investigating Officer of this case.
The medical evidence was furnished by Dr. Saira Ishtiaq (PW.3).
Shaukat Ali C-1722 (PW.1), Ali Hussain MHC-728 (PW.4), Muhammad Hafeez Khan Draftsman (PW.5), Muhammad Aslam C1767 (PW.7) are the formal witnesses, Ghulam Abbas C-1328 (PW.2) is the recovery witness of gun 12 (P. 1) alongwith 8 live cartridges (P.2/18), whereas, Bashir Ahmad (PW.10) is the witness of identifying the dead body of Mst. Rabia Bibi (deceased).
The complainant Allah Yar (PW.8), and Zulfiqar (PW.9) have furnished the ocular account of the occurrence. The prosecution also produced documentary evidence in the shape of recovery memo. of clothes (Ex.PA), recovery memo. of gun .12 bore pump action (Ex.PB), post-mortem report etc. (Ex.PC), site-plan (Ex.PF), FIR (Ex.PG), blood stained earth (Ex.PI), report of Chemical Examiner (Ex.PK), report of Serologist (Ex.PL), and death report (Ex.PM).
The statement of appellant Muhammad Aslam, under Section 342, Cr.P.C. was recorded. He refuted the allegations levelled against him and professed his innocence. While answering to a question "Why this case against you and why the PWs have deposed against you", Muhammad Aslam, appellant, replied as under: "The instant case was falsely registered against me due to the reason that I divorced to the daughter of the complainant and PWs have falsely deposed me due to relationship of PWs with the complainant".
The appellant Ghulam Hussain also denied the allegations of the prosecution levelled against him and claimed his innocence, in his statement recorded under Section 342 of, Cr.P.C. In answer to the question, "why this case against you and why the PWs have deposed against you", the appellant Ghulam Hussain replied as under: "The complainant falsely involved me in this case only due to the reason that accused Muhammad Aslam is my close friend and PWs falsely deposed against me due to relationship with the complainant".
Both the appellants neither made their statements under Section 340(2), Cr.P.C., nor they produced any evidence in their defence. After conclusion of the trial, the learned trial Court convicted and sentenced the appellants, as detailed above.
5. The learned counsel for the appellants, in support of both these appeals, contends that the appellants have been falsely implicated in this case by the complainant Allah Yar (PW.8); that actually the occurrence took place much prior to the time mentioned in the FIR (Ex.PG), which is clear from the statement of Shaukat Ali C-1722 (PW.1), who has stated that he took the dead body of Mst. Rabia Bibi (deceased) to RHC, Kot Momin at 08:00 p.m., whereas, the case was registered at 09:15 p.m., and thereafter, as per Investigating Officer namely, Muhammad Amir SI (PW.6), he reached at the spot at 10:15 p.m., and sent the dead body to the mortuary within 30/40 minutes; that there is conflict between the ocular account and medical evidence, as it is the case of the complainant Allah Yar (PW.8) in the FIR (Ex.PG)' that the fire shot made by Muhammad Aslam appellant hit on the right buttock of Mst. Rabia Bibi (deceased), whereas, while appearing before the Court, he stated that the fire hit on the thigh of the deceased Mst. Rabia Bibi; that the recovery of gun .12 bore Pump Action (P.I), allegedly recovered from Muhammad Aslam appellant is of no avail to the prosecution, as no empty was recovered from the spot, and there is no , report of the Forensic Science Laboratory; that the motive alleged in the FIR (Ex.PG) by the complainant Allah Yar (PW.8) was to the effect that the daughter of the complainant namely, Mst. Nazia Bibi was married to the appellant Muhammad Aslam, and she came to the house of the complainant Allah Yar (PW.8) due to strained relations. Muhammad Aslam appellant came in the house of the complainant to take back his wife Mst. Nazia. Bibi, but the complainant refused to send his daughter with him, and because of that reason, appellant Muhammad Aslam committed the murder of Mst. Rabia Bibi, whereas, while appearing before the Court, he stated that he (the complainant) and his wife wanted to send their daughter Mst. Nazia Bibi alongwith Muhammad Aslam appellant, and even the most important witness in this case regarding the motive was Mst.
Nazia Bibi, who has not been produced either before the police or before the learned trial Court to establish the motive; that so far as appellant Ghulam Hussain is concerned, the learned counsel for the appellants contends that admittedly he was empty-handed, and it is the case of the prosecution that appellant Ghulam Hussain raised Ealkara' and no overt-act has been attributed to him; that the motive, as alleged by the prosecution, has not been proved against the appellants, therefore, both these appeals be accepted and the appellants may be acquitted from the charges.
6. On the other hand, the learned Deputy Prosecutor-General, for the State, assisted by the learned counsel for the complainant, opposes both these appeals on the grounds that there is no delay in reporting the matter to the police, if the distance between the Police Station, Rot Momin and the place of occurrence is taken into consideration; that both the eye-witnesses namely, Allah Yar (PW.8) and Zulfiqar (PW.9) are the residents of the house, where this occurrence took place, therefore, their presence at the time of occurrence, at the spot is quite natural; that both the appellants are nominated in the FIR (Ex.PG) with their respective roles; that there is no reason for their false implication in this case; that the prosecution witnesses of the ocular account remained consistent and straightforward and their evidence could not be shattered by the defence; that the ocular account is in line with the medical evidence; that the motive has also been proved by the prosecution against the appellants, rather the appellant Muhammad Aslam stated in his statement under Section 342 of, Cr.P.C. that he had divorced Mst. Nazia Bibi, but he has not produced any document in this respect; that the appellants are responsible for causing the death of an innocent woman; that substitution in such like cases is a rare phenomena, therefore, both these appeals may be dismissed and Murder Reference may be answered in the affirmative.
7. We have heard the arguments of the learned counsel for the appellants, and the learned counsel for the complainant, as well as, learned Deputy Prosecutor-General, and have also gone through the evidence available on the record, with their able assistance.
8. The occurrence in this case as per FIR (Ex.PG) took place on 08.07.2005, at 07:00 p.m., in the house of the complainant Allah Yar (PW.8). The matter was reported to the police by the complainant at 09:15 p.m., at Police Station, and the formal FIR (Ex.PG) was also chalked out on the same day i.e. 08.07.2005, at 09:15 p.m., at the said Police Station, which is situated at a distance of 12 kilometres from the place of occurrence. Considering the time and place of occurrence and its distance from the Police Station, we are of the view that there was no delay in reporting the matter to the police.
9. The prosecution, in order to prove ocular account has produced the complainant Allah Yar (PW.8) and Zulfiqar (PW.9). According to the statements of the complainant Allah Yar (PW.8), Muhammad Aslam appellant was his son-in-law, whereas, Ghulam Hussain appellant was nephew of his wife Mst. Rabia Bibi (deceased). On the day of occurrence, at evening time, he (the complainant) alongwith his son Zulfiqar (PW.9), Iqbal (given up PW) was present in his house. The wife of the complainant, namely, Mst. Rabia Bibi was present in the Courtyard and was busy in the household work. In the meanwhile, Muhammad Aslam appellant while armed with gun and Ghulam Hussain appellant, empty-handed, entered the house of the complainant Allah Yar (PW.8).
Muhammad Aslam appellant raised Ealkara' that he had come to teach a lesson as his wife Mst.
Nazia Bibi was not sent with him on the previous day. Ghulam Hussain appellant also raised Lalkara' . Muhammad Aslam appellant made a fire shot with his gun, which landed on the right thigh of Mst. Rabia Bibi (deceased), who fell down and succumbed to the said injury at the spot.
Muhammad Aslam appellant again made a fire shot at the complainant Allah Yar (PW.8), but the said fire shot missed. Both the appellants, thereafter, fled away from the place of occurrence.
The statement of Zulfiqar (PW.9) is also in line with the statement of the complainant Allah Yar (PW.8). He is son of the complainant. The eye-witnesses namely, Allah Yar (PW.8) and Zulfiqar (PW.9) are natural witnesses, as the occurrence took place in their house, therefore, their presence at the time of occurrence at the spot could not be doubted. The place of occurrence has not been disputed by the appellants. The complainant Allah Yar (PW.8) and Zulfiqar (PW.9) are respectively husband and son of Mst. Rabia (deceased). They have no ulterior motive to falsely implicate the appellant Muhammad Aslam in this case, who was their son-in-law. As the above-mentioned eyewitnesses are close relatives of the deceased Mst. Rabia Bibi, therefore, it is not probable that they will falsely implicate the appellants and would let off the real culprits. Substitution in such like cases is a rare phenomena. The complainant Allah Yar (PW.8) and Zulfiqar (PW.9) were cross- examined at length by the learned defence counsel, but their evidence could not be shattered.
They have corroborated each other on all material aspects of the case. Their evidence is straightforward and confidence-inspiring.
10. The medical evidence of the prosecution was produced by Dr. Saira Ishtiaq (PW.3), who conducted the post-mortem examination on the dead-body of Mst. Rabia Bibi on 09.07.2005, at 12:00 (noon), and found the following injuries on her person:- External Injuries.
Injury No, 1 Five small lacerated wound of entry were seen on right buttock each (.5x..5 cms) in size, seen.
Margins were irregular and there was no blacking.
First wound of entry was 14 cm from right iliac crest. 2nd 20 cm away from right iliac crest.
3rd 28 cm away from right iliac crest.
4th and 5th Wounds of entry was 25 cm away from right iliac crest.
Injury No, 2 wounds of Exit 09 small oval shape wounds of exit each 1x1 cm in size were seen on right upper 1/3 of anterior of thigh. Margins not blackened.
First wound of exit was 12 cm away from umbilicus.
2nd wound was 16 cm away from umbilicus on right side of first wound.
3rd and 4th wounds were 16 cm away from umbilicus.
5th, 6th and 7th wounds were 21 cm away from umbilicus.
8th and 9th wounds were 24th cm away from umbilicus: - In her opinion, all the injuries were ante-mortem and were caused by fire-arm weapon, which were sufficient enough to cause death. Probable time that elapsed between injuries and death was within about 10 to 15 minutes, and between death and post-mortem was 16 to 18 hours.
The said medical evidence has fully supported the ocular account furnished by the complainant Allah Yar (PW.8) and Zulfiqar (PW.9). According to the medical evidence, the seats of injuries on the person of Mst. Rabia Bibi (deceased), kind of weapon used and the time of occurrence/death, were the same, which were narrated by the above-mentioned eye-witnesses. Dr. Saira Ishtiaq (PW.3) was also cross-examined at length by the learned defence counsel, but nothing favourable could be elicited during the process of her cross-examination.
11. It is argued by the learned counsel for the appellants that there is conflict between the ocular account and medical evidence, as it is the case of the complainant Allah Yar (PW.8) in the FIR (Ex.PG) that the fire shot made by Muhammad Aslam appellant hit on the right buttock of Mst.
Rabia Bibi (deceased), whereas, while appearing before the Court, he stated that the fire shot made by Muhammad Aslam appellant landed on the right thigh of the deceased. So far as the above-mentioned conflict between the ocular account and medical evidence is concerned, it is observed that the buttock and thigh are such part of human body, which are located in close proximity to each other, therefore, said conflict of the ocular account and medical evidence is insignificant. Mst. Rabia Bibi (deceased) was a human being and not a static object. In the state of sensation and panic, when the fire shots are being made by the accused, it is not fair to expect from an ordinary witness that he would mention the seat of injury with exactitude. It is by now a well-settled law that minor discrepancies in the ocular and medical evidence about_the seat of injuries are insignificant. Reference in this context may be made to the case of Abdur Rauf vs. The State and another (2003 SCM R 522), wherein at page-526, the Hon'ble Supreme Court of Pakistan has held as under:-- "We may observe that the minor discrepancies in the medical evidence relating to the seat of injuries would also not negate the direct evidence as the witnesses are not supposed to give photo picture of each detail of injuries in such situation, therefore, the conflict of nature of ocular account with medical as pointed out being not material would have no adverse effect on the prosecution case.
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of Ellahi Bakhsh vs. Rab Nawaz and another (2002 SCM R 1842).
12.Now coming to the motive part of this case, it was alleged by the complainant Allah Yar (PW.8) that the motive behind the occurrence was that his daughter Mst. Nazia Bibi was married to Muhammad Aslam appellant, but their relationship became strained. His daughter Mst. Nazia Bibi came back to his house and she did not like to go with Muhammad Aslam appellant. The complainant Allah Yar (PW.8) has farther stated that he and his wife Mst. Rabia Bibi (deceased) wanted to send their daughter, but Muhammad Aslam appellant committed the murder of his wife Mst. Rabia Bibi due to the above-mentioned grudge. It was not stated by the complainant Allah Yar (PW.8) in the FIR (Ex.PG) that he (the complainant) and his wife Mst. Rabia Bibi (deceased) wanted to send their daughter Mst: Nazia Bibi with Muhammad Aslam appellant, rather it was stated in the FIR (Ex.PG) that when Muhammad Aslam appellant came to take Mst. Nazia Bibi with him, they (the complainant and his wife Mst. Rabia Bibi deceased) refused to send their daughter with Muhammad Aslam appellant. The complainant Allah Yar (PW.8) was duly confronted with his previous statement (Ex.PG) and his material improvement regarding the motive part of the prosecution case was brought on the record. Mst. Nazia Bibi, daughter of the complainant, has not been cited as a witness in the FIR (Ex.PG). The complainant Allah Yar (PW.8) has not mentioned in the FIR (Ex.PG) that she (Mst. Nazia Bibi) was present in his house, when the occurrence took place.
Mst. Nazia Bibi was never produced during the investigation of this case, or before the learned .trial Court to substantiate the motive part of the prosecution case. The nature of alleged dispute between Muhammad Aslam appellant and his wife Mst. Nazia Bibi has neither been disclosed in the FIR (Ex.PG), nor during the statements of above-mentioned eye-witnesses before the learned trial Court, therefore, in our view, the motive, as alleged by the prosecution, was not proved in this case.
13.So far as the recovery of gun .12 bore pump action (P.1) on the pointation of the appellant Muhammad Aslam is concerned, we have noted that no empty was recovered from the place of occurrence, and there is no report of Forensic Science Laboratory, thus, the alleged recovery of gun .12 bore pump action (P.1) from the possession of the appellant Muhammad Aslam is of no avail to the prosecution.
14. We have disbelieved the evidence of recovery of gun .12 bore pump action (P.1) and the motive part of the prosecution case, however, if the evidence of motive and recovery of gun .12 bore pump action (P.1) is excluded from consideration, even then there is sufficient incriminating evidence available on the record against the appellant Muhammad Aslam. As discussed earlier, prosecution case was duly established through the evidence of the complainant Allah Yar (PW.8) and Zulfiqar (PW.9).. They stood the test of cross-examination. Their evidence is quite natural, reliable and confidence-inspiring. The ocular account of the prosecution is fully supported by the medical evidence of Dr. Saira Ishtiaq (PW.3). The injury attributed to the appellant Muhammad Aslam, seat of injury, kind of weapon used in the occurrence and time of death of the deceased Mst. Rabia Bibi, as given by the eye-witnesses, also get support from the above-mentioned medical evidence, therefore, we hold that the prosecution has proved its case against the appellant Muhammad Aslam beyond the shadow of any doubt so far as Qatl-e-Amd of Mst. Rabia Bibi (deceased) is concerned.
15. Insofar the question of quantum of sentence of the appellant Muhammad Aslam is concerned, we have noted some mitigating circumstances in his favour. Firstly, prosecution has alleged a specific motive, but has miserably been failed to prove the same, and secondly, prosecution has failed to prove the recovery of gun .12 bore pump action (P. 1) beyond the shadow of doubt against the appellant. It is well-recognized principle by now that accused is entitled for the benefit of doubt as an extenuating circumstance while deciding his question of sentence as well. We very respectfully refer the case of Mir Muhammad alias Miro versus The State (2009 SCM R 1188), wherein the Hon'ble Supreme Court of Pakistan has emphasized 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 the case of Mst. Bevi v. Ghulam Shabbir and another 1980 SCMR 859, it was ruled by this Court "that the principle underlying the concept of benefit of doubt can in addition to the consideration of question of guilt or otherwise, be pressed also in matter of sentence".
In another case of Ansar Ahmad Khan Barki versus The. State and another (1993 SCM R 1660), the Hon'ble Supreme Court of Pakistan has held that the? prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for award of normal penalty of death.
As discussed earlier, the motive, as alleged by the complainant party, is not proved in this case. It is not determinable in this case as to what had actually happened immediately before the occurrence, which had resulted into the death of Mst. Rabia Bibi (deceased), therefore, the death sentence of the appellant Muhammad Aslam is quite harsh. We are convinced that Muhammad Aslam appellant, in the peculiar circumstances, of this case deserves benefit of doubt to the extent of his sentence one out of two provided under Section 302(b), PPC. It has been held in a 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 beyond any shadow of doubt and non-proof of motive may be considered a mitigating circumstance in favour of an accused. Moreover, 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 vs. The State (2011 SCM R 593), wherein, at page 604, the learned Apex Court of the country, has been pleased to lay emphasis as under:-- "10. 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-i-amd has been awarded as Tazir under Section 302(b), PPC. The difference of punishment for Qatl-e-amd as Qisas and Tazir provided under Sections 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 Abdus 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, 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-i-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)."
16. Due to the above mentioned reasons, the conviction of Muhammad Aslam 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. However, benefit of Section 382-B of, Cr.P.C. is given to the appellant Muhammad Aslam.
17. Insofar the conviction and sentence awarded to Muhammad Aslam appellant under Section 324 of, PPC is concerned, we are of the view that the case of prosecution was not established under the said charge beyond the shadow of doubt. Although it was alleged that Muhammad Aslam appellant made a fire shot at the complainant Allah Yar (PW.8), but admittedly, no injury was sustained either by the complainant or by any other prosecution witness. No empty was recovered from the place of occurrence. The complainant party was empty-handed, whereas, appellant Muhammad Aslam was armed with gun . 12 bore and there was nothing to stop him if he had any intention to kill the complainant or any other prosecution witness, therefore, we set-aside the conviction and sentence awarded to Muhammad Aslam appellant under the charge of Section 324 of PPC and acquit him from the said charge.
18.So far as the case of appellant Ghulam Hussain in Criminal Appeal No, 353-J of 2006 is concerned, he has not been attributed any injury either on the person of the deceased Mst. Rabia Bibi, or to any prosecution witness. He was empty-handed at the time of occurrence. Even, the initial `Lalkara' was attributed to Muhammad Aslam appellant, and thereafter a second proverbial `Lalkara' has been attributed to Ghulam Hussain appellant. No motive has been attributed to him.
The motive was alleged against Muhammad Aslam appellant. He had no reason to commit the alleged offence or to take part in the occurrence. -He is admittedly nephew of Mst. Rabia Bibi (deceased), and if his presence at the time of occurrence is believed, even then, mere his presence at the time of alleged occurrence is not sufficient to maintain his conviction. The prosecution case to the extent of involvement of Ghulam Hussain appellant is not free from doubt. Possibilities of his false involvement in this case while using wider net by the complainant Allah Yar (PW.8) cannot be ruled out. Thus, we hold that the prosecution has failed to prove its case against Ghulam Hussain appellant beyond the shadow of doubt, therefore, by extending the benefit of doubt, we accept his appeal (Criminal Appeal No, 353-J of 2006), set-aside the convictions and sentences awarded to him by the learned trial Court vide its judgment dated 15.09.2006. The appellant Ghulam Hussain is in Jail, therefore, he shall be released forthwith, if not required in any other case.
19. Consequently, with the above-mentioned modification in the sentence of Muhammad Aslam appellant, Criminal Appeal No, 352-J of 2006, filed by the appellant Muhammad Aslam, is hereby dismissed and Murder Reference No, 622 of 2006 is answered in the NEGATIVE and death sentence of the appellant Muhammad Aslam is NOT CONFIRMED.