' ABDUL SAMI KHAN, J.---Through this appeal under section 410, Cr.P.C. Iftikhar Ahmad appellant has challenged the vires of the judgment dated 10-6-2009 handed down by the learned Sessions Judge, Jhelum wherein the appellant was convicted under section 302(b), P.P.C. For committing the murder of Wagar Ahmad deceased and was sentenced to death. He was also ordered to pay compensation of Rs.50,000 to the heirs of the deceased under section 544-A, Cr.P.C. And in case of default of payment thereof he shall further undergo simple imprisonment for six months. The appellant has filed instant appeal against his conviction and sentence whereas the State has filed Murder Reference No. 108/RWP of 2009 under section 374, Cr.P.C. For confirmation or otherwise of the conviction and sentence passed against the appellant. We propose to decide both these matters together through this single judgment.
2. The prosecution story set forth in the F.I.R. Is that the complainant was resident of Bhatti Saidan and her husband Wagar Ahmad was agriculturalist by profession. Iftikhar Ahmad accused is brother of husband of the complainant who had made a compound for cattle. On the fateful day said Iftikhar had detained buffaloes belonging to the deceased in his cattle-pound. After receiving information of this act, the complainant along with her husband Waqar Ahmad have approached the pound where Iftikhar Ahmad accused was already present. Wagar Ahmad complained to Iftikhar Ahmad whereupon he misbehaved with Wagar Ahmad and grappled with him. On hearing hue and cry father of the complainant Muhammad Ali and Sajid Mehmood, brother of the appellant who were present nearby came there. In their presence Iftikhar Ahmad accused gave a chhuri blow on the chest of her husband Wagar Ahmad who fell down and Iftikhar Ahmad while brandishing chhuri fled away from the scene of crime. The complainant, Muhammad Ali and Sajid Mehmood were taking the injured to civil hospital Sohawa but the injured Waqar Ahmad succumbed to his injury and died in the way. The motive behind the occurrence is that Iftikhar Ahmad detained the buffaloes of the complainant in his cattle pound without any reason and on making complaint Iftikhar Ahmad accused has murdered the husband of the complainant Waqar Ahmad unwarrantedly. Upon the complaint made by Mst. Shamsa Waqar complainant formal F.I.R.
No. 235 was registered at Police Station Sohawa, District Jhelum on 10-9-2008 in respect of an offence under section 302, P.P.C.
3. The investigation in this case was conducted by Afzal Mehdi, SI. After recording the statement of Mst. Shamsa Waqar in THQ Hospital Sohawa, he sent the complaint Exh.PF through Numan Asad constable to Police Station Sohawa for registration of the F.I.R. He then inspected the dead-body of the deceased, prepared inquest report Exh.PD and injury statement Exh.PC, sent the dead-body to hospital for postmortem and recorded the statements of the P.Ws. Under section 161, Cr.P.C. After post-mortem examination of the deceased Waqar Ahmad, Tanvir Constable handed over to Afzal Mehdi SI/I0 the last worn clothes of the deceased including Shalwar PI and Qamiz P2 (blood- stained) which he secured vide memo Exh.PH. Thereafter the Investigating Officer reached' the spot and inspected the place of occurrence in the presence of the witnesses, prepared rough site plan Exh.PJ. The Investigating Officer arrested the accused-appellant Iftikhar Ahmad from the village Tibbi Bangla on 12-10-2008. On the pointing out of the accused-appellant the investigating officer recovered the weapon of offence, i.e. Chhuri stained with blood from Tibbi Bangla lying under the bushes and prepared recovery memo Exh.PE. A separate case under section 13 of Pakistan Arms Ordinance XX of 1965 was also registered against the accused-appellant. After completion of the investigation the Investigating Officer found the appellant guilty of the `charge, prepared report under section 173, Cr.P.C. And submitted in the learned trial Court.
4. The -prosecution in order to prove its case against the appellant examined as many as 11 witnesses before the learned trial court. The ocular account in this case has been furnished by Mst.
Shamsa Waqar complainant (P.W.8). Khalid Mehmood (P.W.7) is witness of recovery of weapon of offence from the accused-appellant. Afzal Mehdi, SI/Investigating Officer (P.W.10) appeared before the learned trial Court and stated about various steps taken by him during the course of investigation of this case. The medical evidence in this case was furnished by Dr. Zahid Ali, Medical Officer, DHQ Hospital, Sohawa (P.W.5) who found only one injury on the person of the deceased which is described as uder:- "1. A penetrating ecliptic wound measuring 4 cm x 1-1/2 cm from middle with sharp edges at mid line of anterior abdominal wall 3 cm, below sternumxiphoid and 12 cm above from umbilicus. The hale was present on shirt corresponding to the injury No.1"
' According to the opinion of the Doctor the cause of death was injury No.1 which is on the vital organ leading to massive blood loss and shock, which was sufficient to cause death in ordinary course of nature.
4(sic.) In his statement recorded under section 342, Cr.P.C. The appellant Iftikhar Ahmad deposed in his defence as under:- "This case is false.. Deceased Waqar had purchased a tractor. The sale price was paid through sale of the joint holding of landed property of all the brothers including of me and Waqar. Sajid P.W., my brother, had demanded his share in the tractor, resulting in dispute with Waqar and exchange of hot words. Both had threatened each other. Sajid murdered Waqar and threw his dead-body in the cattle pond. Subsequently, the complainant and Sajid P. W. Hatched a conspiracy to induct me in this case so that they could misappropriate my share in the tractor and also my shdre in the other property. The story embodied in the F.I.R. Is concocted. I had nothing to do with this incident. I was erroneously implicated in this case. Sajid Mehmood P.W. Is `dewar' of the complainant. No independent P.W. Was mentioned for proving the prosecution version, despite the fact that the place of occurrence is a thoroughfare. P. Ws. Are interested ones."
' The accused-appellant did not make statement on oath under section 340(2), Cr.P.C. And did not opt to examine witnesses in his - defence. However, he had produced documents Exh.DA and Exh.DB in his defence.
5. Upon completion of the trial the learned trial Court found the case against the appellant to have been proved beyond any reasonable shadow of doubt and, thus, convicted and sentenced him as mentioned and detailed above. Hence, this appeal before this Court along with murder reference.
6. The learned counsel for the appellant contends that the appellant is innocent. He has falsely been roped in this case by the complainant with mala fide intention and ulterior motive. The story narrated in the F.I.R. Is false and concocted one. There is no independent eye-witness of the occurrence. It is a night time occurrence and no explanation qua source of light has been given by the complainant in the F.I.R. Which creates doubt in the prosecution story. The motive set up by the prosecution in the F.I.R. Does not seem to be plausible as no person can dare to kill his real brother only for detaining his animal in the cattle pond. As a matter of fact there was a dispute of property between Sajid Mehmood and Waqar Ahmad deceased and Sajid Mehmood has killed Waqar Ahmad. Thereafter, the complainant and Sajid Mehmood hatched a conspiracy and involved the appellant in this false and frivolous case. The presence of the complainant and other "eye- witnesses has not been established by the prosecution inasmuch as no justifiable reason has been given for their witnessing the occurrence at the odd hours of the night. Mst. Tahzeem Akhtar and Junaid Mehmood mother and brother of the appellant respectively have deposed in their affidavits that there was no dispute between the appellant and Waqar Ahmad deceased who are real brothers; the appellant is innocent; he has not killed Waqar Ahmad deceased. Recovery of weapon of offence, chhuri Exh.PE has been planted upon the appellant in order to strengthen the prosecution case. The reports of the Chemical Examiner and that of Serologist have been maneuvered by the prosecution. It has got no evidentiary value in the eyes of the law as the weapon of offence was recovered after one month and five days of the occurrence. There are glaring contradictions in the statements of the P.Ws. The prosecution has failed to prove its case beyond any shadow of doubt. It is settled law that benefit of a slightest doubt has to be given to an accused not as a matter of grace but as a matter of right.
7. On the other hand the learned Law Officer has controverted the contentions raised by the learned counsel for the appellant and submits that the appellant is named in the promptly lodged F.I.R. And specific role of causing fatal injury with sharp-edged weapon at vital part of the body of deceased is attributed to him which role is duly borne out from his Post-mortem Examination Report. The ocular account is fully corroborated by the medical evidence. According to the report' of Serologist the weapon of offence got recovered from the present appellant is stained with human blood. The P.Ws. Are consistent on each and every material point. During the course of investigation the appellant has been found involved in this case by the Investigating Officer.
Weapon of offence chhuri has been recovered from him. The prosecution has brought guilt of the appellant to the hilt.
8. We have heard the learned counsel for the appellant as well as learned Law Officer at length and have minutely scanned the record of the case with their able assistance.
9. It has been observed by us that the instant unfortunate incident in this case had taken place on 9-9-2008 at about 9-45 p.m., the matter was reported to the police by Mst. Shamsa Wagar, wife of the deceased/complainant (P.W.8) at 1-25 a.m. At Police Station Sohawa, Jhelum which is situated at a distance of 21 kilometers from the place of occurrence. Thus, no conscionable time had been consumed by the complainant to consult or deliberate over the matter rather the matter had been reported in this case with sufficient promptitude which fact has convinced us that no extraneous delay occurred in lodging the F.I.R.
10. Some other imperative features observed by us in this case are that the appellant is duly named in the F.I.R, and specific role of inflicting a chhuri blow on the chest of Wagar Ahmad deceased has been attributed to him. The role attributed to the appellant is also borne out from the Post-mortem Examination Report (Exh.PD) of the deceased. The appellant has chosen a vital part of the body of the deceased to ensure his expiry in a callous and cold-blooded manner. The parties to this case are known to each other because deceased was real brother of the appellant and husband of the complainant and this fact of course eliminate the possibility of mistaken identity of the appellant who is also Dewar of the complainant. The proximity of the place of occurrence with the residences of the parties also established presence of the complainant at the spot and witnessing the occurrence. We have no doubt in our mind to declare the complainant as natural witness in this case. Moreover, both the eye-witnesses, i.e. Mst. Shamsa Waqar (P.W.8) and Sajid Mehmood (P.W.9) had sufficiently explained the manner and mode of happening the occurrence, they remained consistent on each and every material point, their trustworthy and reliable evidence not only inspired the confidence of the learned trial Court but the same has also satisfied our conscious to believe upon them. Being the wife of the deceased the complainant has no reason to substitute the real culprit in lieu of the appellant which fact obviously is against the natural love and affection existed between husband and wife. Even otherwise substitution in such like case is a rare phenomena. Even otherwise we have not been able to locate any infirmity, inconsistency and material contradiction or omission in the statements of Mst. Shamsa Wagar, complainant (P.W.8 and Sajid Mehmood (P.W.9) rather both had unanimously explained all material points i.e. Time, date and place of occurrence and manner in
11. The learned the deceased but as a matter of fact it was Sajid Mehmood who had counsel for the appellant has laid great emphasis to establish that it was not the appellant who had committed the murder of which the occurrence happened while appearing in the witness box before the learned trial Court. Accomplished this task. The learned counsel in support of his submission has drawn our attention towards the affidavits sworn by the father, mother (Exh .DA) and other brother (Exh.DB) of the appellant in this regard. We, however, remained unable to subscribe this submission of the learned counsel for the appellant because mere submission of affidavit in a murder case does not by itself wriggle out the culprit from his guilt rather the defence should be equipped with a credible and trustworthy defence evidence to prove the innocence of a culprit involved in a murder case. The defence has even not produced any documentary material, like institution of private compliant or lodging of cross-version to substantiate its plea inasmuch as nobody who has sworn affidavit dare to come in the witness box to adduce evidence in support of defence plea. Thus, such type of bald, vague and unspecified plea cannot find our favour in case like the one in hand.
12. So far as vehement arguments of the learned counsel for the appellant highlighting discrepancies between the statements of Mst. Shamsa Waqar complainant (P.W.8) and Sajid Mehmood (P.W.9) are concerned, we would like to observe here that such like discrepancies can crop up with the passage of time, slip of tongue and the same are not material when otherwise the other surrounding and attending circumstances of the case do not provide support to the same, therefore, we are of the confident view that the ocular account in this case inspires confidence and the same is palpably proved beyond any reasonable shadow of doubt.
13. So far as the medical evidence is concerned, the same is absolutely in line with the ocular account. According to Dr. Zahid Ali, Medical Officer, Tehsil Headquarter Hospital, Sohawa, District Jhelum (P.W.5) the death occurred due to sole injury received by the deceased on vital part of his body. While appearing in the witness box Dr. Zahid Ali, Medical Officer, Tehsil Headquarter Hospital, Sohawa, District Jhelum (P.W.5) has unambiguously explained the locale of injury, the weapon used during the occurrence, the time between the occurrence and the death. In spite of cross- examination upon the doctor the defence could not extract anything adverse to the prosecution's case. Thus, we have come to a stalwart conclusion that the medical evidence in this case has provided full support to the ocular account.
14. As to the recovery of chhuri effected at the instance of the appellant is concerned, the same is stained with human blood so the positive report of Serologist (Exh.PG) further strengthen the prosecution case.
15. The motive set up by the complainant in the F.I.R. Is that there' was a dispute over impounding of buffaloes belonging to the deceased by the appellant in his cattle pond and a scuffle took place between them which resulted into the death of the deceased by the hands of the appellant. A minute perusal of the record shows that it was because of the said reason that the deceased was done to death by the appellant. Although the defence had tried to defeat the motive set up by the prosecution while putting forward a fragile plea that the appellant had been booked in this case by the complainant due to a dispute of property but admittedly this plea has not been substantiated by any material whatsoever by the defence. Even no document establishing any previous litigation or dispute over land/property has been produced by the defence in this case to controvert the motive set up by the prosecution. Thus, we are clear in our mind that the motive set up by the prosecution has provided sufficient support to the ocular account.
16. However, at the same time, we are of the view that there are certain extenuating circumstances which suggest that it is not a case of capital sentence for the reasons, although a motive was specifically alleged by the prosecution but the same has not proved any element of premeditation on the part of the appellant or any plan in his mind to commit murder of his real brother especially within the vicinity where the parties to this case were living. After assessing and evaluating the whole evidence available in this case we have come to the conclusion that the occurrence in this case is a result of sudden flare-up at the spur of moment between the deceased and the appellant on a petty matter of detaining the buffaloes belonging to the deceased in compound of cattle of the appellant. This observation also gains strength from the reaction gestured by the appellant at the spot because he had caused only one injury on the person of the deceased and had not repeated the same. So, 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 learned 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 Bhasir and another, (PLO 2007 SC 111), it was held that "This is settled law that provisions of sections 306 to 308, P.P.C. Attract only in the cases of Qatl-eamd liable to Qisas under section 302(a), P.P.C. And not in the cases in which sentence for Qatl-e-amd has been awarded as tazir under section 302(b), P.P.C. The difference of punishment for Qatl-e-amd as aisas and tazir provided under section 302(a) and 302(b), P.P.C.
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), P. P. C. 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 SCMR 4), Faqir Ullah v.
Khalil-uz Zaman (1999 SCMR 2203), Muhammad Akron, v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 338)". The Court while maintaining the conviction under section 302(b), P.P.C. 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 v. The State (2007 SCMR 1413) while considering the penalty for an act of commission of Qatl-e-Amd 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 SCMR 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".
Even otherwise 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. 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 the charge home to an accused for award of normal penalty of death. We have also fortified our 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)."
17. For what has been discussed above, while maintaining the conviction of Iftikhar Ahmad appellant under section 302(b), P.P.C., for the murder of Waqar Ahmad deceased his sentence of death is converted into imprisonment for life as Tazir. The amount of compensation of Rs.50,000 under section 544-A, Cr.P.C. As ordered by the learned trial Court and simple imprisonment of six months 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.
18. Murder Reference is answered in the negative and sentence of death is not confirmed.