' ABDUL SAMI KHAN, J.--Appellant-Altaf Hussain Shah was tried in case F.I.R. No,563/2008 dated 2- 12-2008 for offence under section 302 P.P.C. Registered at Police Station Hazro, District Attock by the learned Additional Sessions Judge, Attock who vide judgment dated 265-2009, convicted Altaf Hussain Shah under section 302(b) P.P.C. And sentenced him to death. He was also directed to pay compensation of Rs,1,00,000 under section 544-A Cr.P.C. To the legal heirs of the deceased, in default in payment of compensation to further undergo six months' S.I.
2. Altaf Hussain Shah (appellant) has challenged his conviction and sentence through Criminal Appeal No,176 of 2009 titled as "Altaf Hussain Shah v. The State". The learned trial Court has sent a Murder Reference No,35 of 2009 under section 374 Cr.P.C. For confirmation or otherwise of the death sentence of the appellant. We propose to decide both the matters through a single judgment.
3. Brief facts of the case as disclosed in the F.I.R. Ex.PE/1 which was recorded on the statement (Ex.PE) of Muhammad Firdos complainant (P.W.7) are as under:-- "that on 2-12-2008 at 11:30 a.m. He and his brothers Muhammad Ilyas, Iftikhar Ahmed and Muhammad Akram were doing the work at their well, his brother Muhammad Ilyas went nearby shrine of NANGA BABA where Altaf Shah, accused was cutting meat for "langar"; that an altercation took place between Muhammad Ilyas and Altaf Shah; he (complainant) and his brother Muhammad Akram hearing hue and cry reached the shrine of Nanga Baba where in their presence Altaf Shah inflicted a chhuri blow hitting on the chest of his brother Muhammad Ilyas, he caused second blow with chhuri which hit on the lower side of his armpit; his brother Muhammad Ilyas received serious injuries and Altaf Shah accused ran away from the spot; he and his brother Muhammad Akram took Muhammad Ilyas to hospital who succumbed to the injuries and died.
' Motive behind the occurrence as stated by the complainant is that few days prior to the occurrence an altercation took place between Altaf Shah and Muhammad Ilyas."
4. After registration of the case, investigation was conducted by Muhammad Tufail S.I. (P.W.9) and after completion of the same, challan was submitted against Altaf Hussain Shah accused. Charge was framed against the accused on 9-3-2009 under section 302 P.P.C. To which he pleaded not guilty and claimed trial.
5. To substantiate its version at the trial, the prosecution produced nine witnesses. Ocular account was furnished by Muhammad Firdos complainant (P.W.7) and Iftikhar Ahmad (P.W.8). They have fully supported the prosecution version. Muhammad Tufail S.I. (P.W.9) is the Investigation Officer. He had testified about the investigation conducted by him.
6. Dr. Jawad Ellahi M.O. On 2-12-2008 had conducted postmortem examination on the dead body of Muhammad Ilyas son of Muhammad Miskeen and found the following injuries:--
(1) 2 x 1 cm incised wound on left side of the chest having clean cut margins cavity deep and 4 cm medial to left nipple.
(2) Incised wound 2 cm x 2 cm having clean cut margins present in the base of left axilla.
7. According to the doctor cause of death is due to massive haemorrhage and shock as a result of injury No,1, which was sufficient in ordinary course of nature to cause death. All the injuries were ante-mortem and were caused by sharp-edged weapon. Probable time that elapsed between injury and death was immediate and between death and post mortem was three to three and a half hours. The post mortem report is Exh.PC.
8. After placing on record reports of Chemical Examiner Exh.PK and Exh.PL, reports of Serologist Exh.
PM and Exh.PN the prosecution closed its evidence.
9. The appellant in his statement recorded under section 342, Cr.P.C. Professed his innocence and pleaded false implication in the case. In reply to question why this case against you and why the P.Ws. Deposed against you, stated as under:-- "This case has been registered against me merely on suspicion because Mutawalli of shrine of Nanga Baba is my relative. I know nothing about this occurrence. The witnesses are real brothers of deceased and public officials, so just to strengthen the prosecution case, they deposed against me falsely. I am innocent."
' He neither opted to record his statement under section 340(2), Cr.P.C. In disproof of allegation levelled against him by the prosecution nor produced any witness in his defence.
10. At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentenced the appellant as mentioned in paragraph No,1 of this judgment.
11. Learned counsel for the appellant contends that there is a delay of three hours in lodging the F.I.R. Without any explanation which proves that the F.I.R. Was lodged after due deliberation and consultation. He further contended that the eye-witnesses are closely related to the deceased and also inimical towards the appellant, therefore, the conviction of the appellant could not be maintained on their statements. Learned counsel for appellant strenuously contended that the prosecution has failed to prove its case beyond any shadow of doubt and the evidence so produced is not confidence-inspiring and is not worthy of credence. He argued that the appellant is absolutely innocent in this case and the evidence produced by the prosecution suffers from material irregularity. There is contradiction between the F.I.R. And the statement of the complainant recorded before the trial Court. He also contended that at the time of occurrence the P. Ws. Were not present at the place of occurrence. They had not seen the occurrence and the alleged eyewitnesses are related inter se, in this way the eye-witnesses are not only interested but also inimical whereas no independent person has supported the prosecution case. He argued that the motive alleged by the prosecution has not been proved so the prosecution must suffer. It was further argued that the recovery of chhuri was planted upon the appellant in order to strengthen the prosecution case. He lastly contended that the prosecution has miserably failed to prove the charge against the appellant, so he deserves clean acquittal.
12. On the other hand, learned Law Officer appearing on behalf of the State opposed the submissions made by learned counsel for the appellant and submitted that the matter was reported to the police without any element of deliberation and consultation. He next argued that the appellant is the single accused charged directly in the promptly lodged F.I.R. By name and with specific role of causing chhuri blows on left chest and axilla of the deceased Muhammad Ilyas and the ocular account is duly corroborated by the medical evidence. The occurrence took place in broad-daylight, parties were known to each other and there was absolutely no chance of mistaken identity of the accused. He argued that apart from confidence-inspiring evidence of the eye- witnesses, there is strong corroborative evidence on the file of this case in the shape of the weapon of offence recovered on the pointing out of appellant i,e, blood-stained chhuri, the reports of Chemical Examiner (Exh.PK and Exh.PL) and the reports of Serologist (Exh.PM and Exh.PN).
Muhammad Firdos complainant (P.W.7) and Iftikhar Ahmad (P.W.8) were present at the time of occurrence and in spite of lengthy cross-examination, the defence had failed to demolish/dislodge their presence at the spot. It was submitted that the prosecution case stands proved from all corners against the appellant, the ocular account is fully corroborated by the medical evidence.
The PWs had no enmity with the appellant to falsely depose against him during trial. The accused had repeated the blows, which indicates his intention to murder Muhammad Ilyas. The motive was previous enmity between the deceased and the appellant and an altercation took place a day before the occurrence. He further argued that presence of eye-witnesses at the spot is quite natural and is duly proved by the statements of Muhammad Firdos complainant (P.W.7) and Iftikhar Ahmad (P.W.8). Furthermore, the appellant has failed to bring on record anything on the basis of which it can be construed that eyewitnesses have made false statements against the appellant or that they have become false witnesses on account of ulterior motive. He argued that when the prosecution proved its case through reliable and trustworthy evidence beyond any doubt inadequacy or weakness of motive or where motive was alleged but not proved, would become immaterial and would not adversely affect prosecution case. He lastly submits that as there is no mitigating circumstance in favour of the appellant, so the learned trial Court had rightly sentenced him to death and prayed for maintaining the conviction and sentence awarded to the appellant..
13. We have considered the arguments advanced by learned counsel for the defence counsel as well as the learned Law Officer and have also gone through the entire record with their valuable assistance.
14. Perusal of record shows that the matter was reported by Muhammad Firdos complainant (P.W.7) without any loss of time within about three hours of the occurrence. The place of occurrence is situated at a distance of three 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 deliberations and consultations. So, this is a. Case of prompt F.I.R. And there is no chance of false implication. Statements of Muhammad Firdos complainant (P.W.7) and Iftikhar Ahmad (P.W.8) are consistent on material points. The presence of Muhammad Firdos complainant (P.W.7) and Iftikhar Ahmad eye-witness (P.W.8) seems to be natural one being working in the fields nearby the place of occurrence and their presence on the spot cannot be doubted as occurrence took place near the place where they were already working. Both the eye-witnesses have fully supported the prosecution version. Despite that they were subjected to lengthy cross-examinations but nothing could be brought out nor any doubt could be created in their evidence. They stood firm and their veracity could not be shaken. The names of the eye-witnesses and role of accused-appellant for causing injuries to the deceased have been mentioned in the first information report, which lend support from the medical evidence furnished by Dr. Jawad Ellahi (P.W.4). Nothing was extracted from their mouths to create doubt regarding their presence on the spot.
15. Altaf Hussain Shah appellant, Muhammad Firdos complainant (P.W.7) and. Iftikhar A hmad eye- witness (P.W.8) were the residents of one and the same vicinity, therefore, the appellant was known to them, so there is no question of mistaken identity of the appellant.
16. The appellant is named in the F.I.R. With a specific role of causing injuries with chhuri on the left chest and axilla of the deceased and this role is borne out from the postmortem examination report (Ex.PC) of the deceased. We have perused the postmortem report, injury statement and inquest report of the deceased, which show that the injuries on the dead body of the deceased were of sharp-edged weapon. The injuries on the person of deceased were attributed to the appellant; therefore, medical evidence also supports the ocular account. We have not been able to locate any infirmity, inconsistency and material contradiction in the statements of the Muhammad Firdos complainant P.W.7 and Iftikhar Ahmad eye-witness P.W.8 rather both are unison on material points i,e, time, date and place of occurrence. In these circumstances we have no option except to hold that both the P.Ws. Were present at the time of incident and their testimony is believed.
17. 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 witnesses 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 this submission of learned defence counsel is not convincing because the same has since long been discarded by the apex Court. It is settled proposition of law by now that interested witness is the one who has an animosity with the accused. Mere relationship of witnesses with the deceased is not enough to discard their testimonies because such witnesses are necessarily not the interested witnesses in the true sense of the term. The apex Court in number of cases has 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. Viewing the testimony of the eyewitnesses in the light of aforesaid criteria, we do not find their testimony as tainted or they had any motive to falsely implicate the appellant nor the appellant has been able to bring on record any previous enmity between him and the eye-witnesses for his false implication. No plausible reason has been established by the defence to indicate why the complainant and eye-witness would substitute the appellant by leaving real culprits. The testimony of eye-witnesses is natural and convincing, so their statements find ample corroboration from other evidence, hence, in our view, they were rightly believed by the trial Court.
18. So far as vehement argument of the learned counsel for the appellant highlighting discrepancies between the statements of P.W.7 Muhammad Firdos (complainant) and P.W.8 Iftikhar Ahmad, we may state here that such like discrepancies can crop up with the passage of time and the same are not material, therefore, we are of the view that the ocular account in this case inspires confidence. Which is corroborated by medical evidence.
19. As to the recovery of chhuri (P1) recovered at the instance of the appellant is concerned, the same is stained with human blood so the positive report of Serologist (Ex.PN) further strengthen the prosecution case.
20. The motive stated by the complainant in the F.I.R. Was that a day before the occurrence, an altercation took place between the deceased and the appellant, it was because of the said reason that the deceased was done to death by the appellant, but, we have noted that the prosecution has not been able to prove the motive as the complainant while appearing as P.W.7 has admitted in cross-examination that the altercation took place a day before the occurrence between Altaf Hussain Shah appellant and Muhammad Ilyas deceased was never reported to the police and this fact is sufficient to hold that the prosecution could not prove the motive alleged in the F.I.R.
21. Even if the evidence of motive is taken out of consideration, yet there is sufficient incriminating material in the shape of statements of P.W.7 Muhammad Firdos (complainant), P.W.8 Iftikhar Ahmad (eye-witness), P.W.4 DrJawad Ellahi and postmortem report Ex.PC to maintain conviction of the appellant on the murder charge of Muhammad Ilyas (deceased). However, at the same time, our judicial mind is disturbed to maintain the sentence of death because, admittedly, the occurrence had taken place at the shrine of Nanga Baba where the accused-appellant was already present and it is established from the record that the deceased Muhammad Ilyas had come at the place of occurrence, possibility cannot be ruled out that some sort of hot words were exchanged between the deceased Muhammad Ilyas and accused-appellant, therefore, in our view; the occurrence took place at the spur of moment. The circumstances show 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.
22. By now it is well-recognized principle of law that the accused is entitled to the benefit of any mitigating circumstance, while deciding question of sentence. The Hon'ble Supreme Court in the case titled 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."
23. For what has been discussed above, while maintaining the conviction of Altaf Hussain Shah (appellant), under section 302(b) P.P.C., for the murder of Muhammad Ilyas {deceased), his sentence of death is converted into imprisonment for life as Tazir. The amount of compensation of Rs,1,00,000 under section 544-A Cr.P.C. As ordered by the learned trial Court and imprisonment of six months S.I. In default thereof shall remain intact. Benefit of section 382-B, Cr.P.C. Shall be extended to the appellant. This appeal stands dismissed with the above modification in the quantum of sentence of the appellant.
24. Murder Reference is answered in the NEGATIVE and sentence of death is NOT CONFIRMED.
Sentence Reduced.