' ABDUL SAMI KHAN, J.---Through this Appeal under section 410, Cr.P.C. Asim Shahzad appellant has called in question the judgment dated 25-5-2010 handed down by the learned Additional Sessions Judge, Rawalpindi wherein the appellant was convicted under section 302(b), P.P.C. For causing the death of Shamraiz Akhtar deceased and was sentenced to undergo imprisonment for life. He was also ordered to pay compensation of Rs,2,00,000 to the heirs of the deceased under section 544-A, Cr.P.C. Or in default of payment thereof to further undergo simple imprisonment for six months. The benefit of section 382-B, Cr.P.C. Is extended in favour of the appellant. The appellant has challenged his conviction and sentence before this Court through the instant appeal whereas the complainant has filed Criminal Revision No, 166 of 2010 for enhancement of conviction and sentence of the appellant from life imprisonment to death. I propose to decide both these matter together through this single Judgment.
2. According to the prosecution story set forth in the F.I.R. Naveed Akhtar complainant is mason by profession whereas his brother Shamraiz Akhtar was serving in Survey of Pakistan. Shamraiz Akhtar wanted to get marry with Mst. Sumera, daughter of Sufi Nazeer, resident of the same village who was lodged in Dar-ul-Aman at that time. On the fateful day Shamraiz Akhtar went to Dar-ul-Aman for contracting marriage wherefrom he established a telephonic call with the complainant who informed him that Asim Shahzad along with others was also present there. Shamraiz Akhtar told the complainant that he was proceeding to the house of his maternal grandmother to save his life from Asim Shahzad and his other companions. Upon which the complainant along with his brother Javed Akhtar also reached at the house of their maternal grandmother. From there they proceeded towards their home along with Shamraiz Akhtar. When they reached in the street in front of the house of one Haji Ghulam Fareed at about 6.30 pm Asim, armed with pistol emerged at the spot and raised lalkara to the effect that on that day he would give taste to Shamraiz Alchtar for contracting Nikali with his sister Mst. Sutnera. In the meanwhile Asim Shahzad made three successive fires at Shamraiz Akhtar which landed on his abdomen. Upon sustaining firearm injuries Shamraiz Akhtar fell down. The complainant and his brother Javed Akhtar took shelter behind the wall of Haji Ghulam Fareed due to fear of their lives. Asim Shahzad fled away from the scene of the crime. Shamriaz Akhtar was being removed to hospital in injured condition but he succumbed to his injuries and died on the way. The motive set up in the F.I.R. By the prosecution is that Asim had nourished grudge against Shamriaz Akhtar for contracting marriage with his sister and due to this grudge he had committed the murder of Shamraiz Akhtar. On the statement of Naveed Akhtar complainant formal F.I.R. No, 10, dated 18-1-2006 had been registered at Police Station Kallar Sayedan, District Rawalpindi in respect of an offence under section 302, P.P.C.
3. The investigation in this case was conducted by Muhammad Hasnain, S.I. (P.W.14) who inspected the place of occurrence; recorded the statement of the complainant Exh.PE, prepared the injury statement Exh.PD, prepared rough site-plan Exh.PC/1; collected crime-empties of 30 bore pistol P-1 to P-3, made parcel vide recovery memo Exh.PB; on 25-1-2006 recorded the statement of Mst.
Sumera Bibi in Dar-ul-Aman, Rawalpindi under section 161, Cr.P.C., on 31-1-2006 arrested the appellant; on 3-2-2006 recovered pistol 30 bore (P4) from Asim Shahzad through memo Exh.PC; recorded the statements of the prosecution witnesses under section 161, Cr.P.C. Found the appellant guilty and submitted report under section 173, Cr.P.C. Before the learned trial court. Charge was framed against the appellant on 21-11-2006.
4. The prosecution in order to prove its case examined as many as 14 witnesses before the learned trial court. The ocular account in this case has been furnished by Naveed Akhtar complainant (P.W.9) and Javed Akhtar (PAAT1O). Muhammad Jahangir (P.W.5) appeared as recovery witnesses of pistol 30 bore. Muhammad Hasnain, SI/Investigating Officer appeared before the learned trial court as (P.W.14) who investigated the case in hand and stated about various steps taken during the investigation of this case. The medical evidence in this case was furnished by Dr. Khalid Mehmood Wani, who conducted the post-mortem of the deceased Exh. PC. Rest of the prosecution witnesses are almost formal in nature.
5. In his statement recorded under section 342, Cr.P.C. The appellant denied all the allegations levelled against him by the complainant and professed his innocence. He did not make statement on oath under section 340(2), Cr.P.C. In response to a question that why this case against you the appellant replied as under:- "Actually, Naveed Akhtar was interested to marry with Mst. Sumera my sister and Shamrez Akhtar also willing to marry with her. It was talk of the town that on the fateful day, Naveed Akhtar with the active connivance of Mst. Sumera murdered Shamrez Akhtar, his brother and himself become the witness in the case and implicated me in this case. After my arrest in this case, he solemnized Nikah with Mst. Sumera in Rawalpindi. I have not committed this offence, this is the reason that the prosecution has shown the place of occurrence in a thickly populated area of village but no independent or nearby resident is witness in this case. The motive mentioned by the prosecution is false and frivolous, there was no question of commission of this offence by me without any kind of marriage of my sister with deceased. The deceased Shamrez Akhtar and Naveed Akhtar have destroyed my whole family, I have been falsely implicated in this case, whereas, my sister Sumera made run away marriage with Akhtar P. W.9, my mother has also left the house, so the complainant side have completely destroyed my whole family as well as our honour. My sister Sumera is also party with Naveed Akhtar and it is the talk of the town that Naveed Akhtar has murdered the Shamrez Akhtar for the purpose to marry with Sumera. The investigating Officer, most dishonest person, who after receiving huge amount of bribe from Naveed Akhtar implicated me falsely in this case. Sir, I am innocent, I have not committed this offence".
6. Upon completion of the trial the learned trial court found the case against the appellant to have been proved beyond any reasonable doubt and, thus, convicted and sentenced him as mentioned above. Hence, this appeal before this Court and reviion petition for enhancement of sentence.
7. The learned counsel for the appellant contends thatthe judgment dated 25-5-2010 passed by the learned Additional Sessions Judge, Rawalpindi is result of misreading and non-reading of evidence recorded during trial. The appellant has been made scapegoat in this case because the complainant himself had committed the murder of his deceased brother namely Shamraiz Akhtar on the issue of his marriage with Mst. Sumera, sister of the appellant because he himself wanted to marry with her. The presence of the complainant (P.W.9) and the eye-witness (P.W.10) at the spot is not proved at the relevant time as the conduct showed by them thereat does not appeal to a prudent mind because both the eye-witriesses being real brothers of the deceased took him out of the house of their maternal grandmother despite the apprehension of his murder at the hands of the appellant who along with other persons were chasing the deceased. It is astonishing that the appellant chose the place and time of occurrence to commit murder in presence of the P. Ws.
Despite having ample opportunity to kill him in the way from Dar-ulAman, Rawalpindi to the place of occurrence. This fact clearly shows that it was not the appellant who had committed the offence. Both the eye-witnesses are not trustworthy or reliable witnesses because in their cross- examination they have made glaring improvements which create serious doubt in the prosecution story. It was a night time occurrence and no source of light has been shown in the F.I.R. There existed no Nikah Nama between Mst. Sumera and the deceased which fact falsify the story of the prosecution set forth in the F.I.R. If the prosecution story narrated in the F.I.R. Is admitted as correct, for the sake of arguments, then the appellant should have committed the murder of Mst. Sumera rather than committing the murder of deceased. The complainant in his evidence adduced before the learned trial court had admitted that he was a married man and he had contracted marriage with Mst. Sumera just after two months of the occurrence which fact strengthen the defence taken by the appellant in his statement made under section 342, Cr.P.C. Before the learned trial court. It was an unseen occurrence committed by the complainant himself and the appellant has falsely been roped in this case. Both the eye-witnesses are interested and related witnesses whose presence at the spot is not established from the evidence adduced by them before the learned trial court. No independent person from the locality was produced by the complainant in this case before the. Learned trial court to prove the case. The recovery has been planted upon the appellant which was a conventional weapon of offence and could be arranged easily with the help of investigating officer.. The prosecution has miserably failed to prove its case against the appellant and it is golden principle of criminal jurisprudence that benefit of doubt, if any, has to be given to the appellant not as a matter of grace but as a matter of right. Only one circumstance creating doubt is enough to break the chain of the prosecution tied around the neck of the appellant and the same is also sufficient to acquit the appellant of the charge but in this case the evidence adduced by the eye-witnesses is full of contradictions, result of improvement, thus, the conviction in not justified at all. The .Learned counsel for the appellant relied upon 2011 SCM R 208, 2010 SCMR 556, 2010 SCM R 374, 2010 SCM R 846, 2006 SCM R 1396 and 2007 SCM R 1427.
8. On the other hand the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant contends that the appellant is nominated in the promptly lodged F.I.R. With specific role of making three successive fires at the deceased which he sustained on his abdomen and the injuries are the cause of death. There was a pitched enmity between the parties on the issue of runway marriage of Mst.Sumera sister of the appellant with the deceased and for that grudge the appellant had done to death Shamriaz Akhtar deceased. The parties are resident of same locality, they were known to each other so there was no chance of mistaken identity. The role attributed to the appellant is also borne out from the Post-mortem Examination Report. The medical evidence in this case had provided full corroboration to the ocular account furnished by the eye-witnesses. It is a case of single accused. The prosecution had proved this case through cogent and confidence inspiring evidence and in spite of lengthy cross-examination by the defence they remained consistent on all material points. The prosecution has successfully proved its case against the appellant in shape of ocular account duly corroborated by the medical evidence and supported by the recovery of weapon of offence. The motive in this case is admitted by the appellant in his statement under section 342, Cr.P.C. Before the 'learned trial court. The prosecution has proved the guilt of the appellant to the hilt, thus, the appeal should be dismissed.
The learned counsel for the complainant has also prayed for enhancement of the sentence passed against the appellant from life imprisonment to death. He has relied upon PLD 2006 SC 283, 2010 SCM R 1Q84, 2003 SCM R 647, 2003 SCM R 189, PLD 2002 SC 781, 2003 SCM R 1678, 2004 SCM R 723, 2003 SCM R 522, 2003 SCM R 1164, 2003 SCM R 884, 2003 SCM R 1419 and 2009 SCM R 4.
9. I have heard the learned counsel for the appellant, the learned Deputy Prosecutor General, the learned counsel for the complainant and have also perused the record of this case with great care and caution. It has been observed, by this Court that the occurrence in this case had taken place on 18-1-2006 at about 06.30 pm and the same has been reported by the complainant to the police on the same night at 8.15 p.m. The distance between the place of occurrence and the Police Station is two and a half kilometers. All these facts show that matter was reported to police with sufficient promptitude and the same facts also made it crystal clear that the matter was reported to the police without deliberations or consultations by the complainant.
10. To prove the case against the appellant prosecution examined Naveed Akhtar complainant (P.W.9) and Javed Akhtar (P.W.10) who both had sufficiently explained the mode and manner of the occurrence, place of occurrence, locale of injury sustained by the deceased on his body and kind of weapon used during the same.. Both have categorically stated before the learned trial court that it was only the appellant who first raised lalkara to give the deceased taste for contracting Nikah with his sister Mst. Sumera Bibi and thereafter made three successive fires at A the appellant leaving no room for his survival. It was only the appellant who is responsible for committing the Qatl-e-Amd of the deceased on the issue of his illicit liason with his sister. Both the eye-witnesses are natural witnesses, being residents of same locality their presence at the place of occurrence was natural, they were known to the appellant being their neighbour, thus, identification of the appellant at the spot is established. Both the witnesses were subjected to lengthy cross- examination by the defence but both of them remained consistent on all material aspects and successfully gave reply to all the questions put by the defence. During the arguments the learned counsel for the appellant has laid great emphasis to disprove the presence of the eye-witnesses at the spot at relevant time but he remained unable to show anything from the record in support of his submissions or remained unable to establish their absence from the scene of the crime through any material produced by the defence-in evidence. So the presence of Naveed Akhtar (P.W.9) and Javed Akhtar (P.W.10) at the place of occurrence at the relevant time is proved from trustworthy and reliable evidence.
11. The defence has also seriously criticized that it was not the appellant who had committed the murder of the deceased rather the complainant had himself committed the murder of deceased on the issue of his Nikah with Mst. Sumera Bibi. In this context I shall observe here that such type of bald defence, if any, has no vital effect on the case of prosecution because the appellant had not opted to produce any witness in his defence during trial. It is settled law that when a party took particular stance, onus to prove that stance shifts on their part to prove it but in this case the defence had not produced any material/evidence to prove or substantiate this stance. Thus, I am confident enough to observe here that the prosecution has proved the ocular account through sound, cogent, motivating, trustworthy, reliable and confidence inspiring eyewitness account.
12. Medical evidence in this case furnished by Dr. Khalid Mehmood Wani (P.W.7) is absolutely in line with the ocular account. I have noticed that statement of doctor made before the learned trial court was subjected to cross-examination by the defence but nothing helpful to the defence could be extracted from the same. Post-mortem Examination Report fully corroborates the ocular account regarding nature of injures, weapon of offence used by the appellant and locale of firearm injuries sustained by the deceased. According to the opinion of the Doctor cause of death was due to internal body damage due to Injuries Nos. 1, 2, 3, 5, 6 and 7 which caused internal visceral damage which resulted in severe hemorrhage, shock, and consequential death of deceased due to cardiopulmonary arrest. Thus, the medical evidence has provided full support to the ocular account in this case.
13. During the investigation of this case the appellant had led to recovery of pistol 30 bore P4 which had been taken into custody by the investigating officer vide recovery memo Exh. PC. The investigating officer during the investigation had also collected three crime-empty of pistol 30 bore P1 to P3 from the spot which were sent by 'him to the Office of Forensic Science Laboratory and the report in this regard is positive. Muhammad Jahangir (P.W.5) appeared before the learned trial court as witness of recovery and he had categorically stated all the recovery proceeding in an expressed manner. Although he was subjected to cross-examination by the defence yet nothing favourable to the defence could be extracted from his cross-examination. Thus, the recovery also provides sufficient support to the ocular account.
14. So far as the motive set up by the prosecution in this case is concerned the same is admitted by the appellant even in his statement made before the learned trial court under section 342, Cr.P.C.
Wherein he had categorically stated that his sister Mst. Sumera Bibi was lodged in Dar-ul-Aram and the deceased intended to contract Nikah with her. So the motive is admitted in this case even from the defence taken by the appellant in his statement under section 342, Cr.P.C.
15. Now adverting to the quantum of sentence passed against the appellant, in this context :I may observe here that it is well-recognized principle by now that accused is entitled for the benefit of an extenuating circumstance while deciding the quantum of sentence. Admittedly, the appellant had no personal grudge with the deceased but it was the deceased who established illicit liaison with Mst. Sumera Bibi sister of the appellant and due to their mutual consent sister of the appellant was lodged in Dar-ul-Aman from where according to the prosecution's own story the deceased intended to contract Nikah with her. In our society Nikah without the consent of parents of female spouse considered sign of humiliation and disgrace particularly to the family of female spouse. All the surrounding and attending circumstances of this case give a long way to observe that the deceased and Mst. Sumera created peculiar circumstances for the appellant to do away with the deceased. Thus, I have no manner of doubt in my mind to observe here that the occurrence had taken place in this case due to some extinguishing circumstances created by the deceased himself. All these facts are taken as mitigating circumstances in favour of the appellant. Thus due to this fact the learned trial court was well justified for not awarding capital sentence of death to the appellant. Reliance is placed upon Mir Muhammad alias Miro v. The State (2009 SCM R 1188). In another judgment reported as Ansar Ahmad Khan Barki v. 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 home the charge against accused for award of normal penalty of death. I have also fortified my view qua the quantum of sentence by the case reported as Sharafat Ali Khan v. The State (2010 SCM R 1205), wherein the Hon'ble Supreme Court has observed as under:-- "In Muhammad Riaz and another v. The State (2007 SCMR 1413), while considering the penalty for an act of commission of qatl-e-amd it was observed "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. Reference in the context may also be made to Iftikhar Ahmad Khan v. Asghar Khan and another (2009 SCMR 502)."
16. In view of all above I am of the considered view that the learned trial court has rightly convicted and sentenced the appellant under section 302(b), P:P.C. And awarded him life imprisonment. I do not find any good reason to differ with the judgment passed by the learned trial court which is based upon proper appreciation of evidence available on the record and is in accordance with the principles of appreciation of evidence set down by Hon'ble Supreme Court of Pakistan in this regard. I, therefore, uphold the conviction and sentence passed against the appellant, resultantly, this criminal appeal filed by the appellant is dismissed. The sentence of the appellant has already been suspended vide order dated 26-7-2012. He shall be taken into custody to serve out his remaining sentence.
17. In view of my discussion made in preceding paragraphs Criminal Revision No, 166 of 2010 filed by Naveed Akhtar complainant for enhancing the sentence of life imprisonment to capital punishment of death is also dismissed and the judgment of the trial court is -upheld.