' SADAQAT ALI KHAN, J. --- This single judgment shall dispose of Criminal Appeal No, 140 of 2010 filed by Noor Ahmad present appellant and Murder Reference No,12 of 2010, arising out of the same judgment dated 20.03.2010 passed by learned Sessions Judge. Bahawalnagar according to which the present appellant was convicted and sentenced as under:-
(1) Noor Ahmed was convicted under section 302(b) PPC and sentenced to death for committing Qatl-i-Amd of Shehnaz Begum deceased along-with compensation Rs,1,00,000/- payable to the legal heirs of the deceased under section 544-A Cr.P.0 and in default thereof further undergo six months S.I. He was also convicted under section 449 PPC and sentenced to life imprisonment for committing Qatl-i-Amd of Shehnaz Begum deceased alongwith fine Rs,50,000/- and in default thereof further undergo three months S.I.
' Benefit of section 382-B Cr.P.0 was also extended to the present appellant by the learned trial court in case FIR No, 156 dated 06.05.2009 under sections 302/449 PPC police station, McLeod Gunj Tehsil Minchinabad District Bahawalnagar.
2. Brief facts of the case as given by the complainant Mumshad Farid (PW-9) in his complaint (Ex.PJ) upon which FIR (Ex.PJ/1) was registered are that he is resident of Basti Samenka, Mouza Peer Ghar and is a cultivator. They are two brothers and two sisteRs, Mst. Shehnaz Begum aged 20/22 years was younger to him and was living with them. He stated that they were agreed to marry their sister Mst. Shehnaz Begum with Noor Ahmad present appellant but when it came to their knowledge that he is addict and is not of good character they refused to give the hand of their sister to Noor Ahmad accused/present appellant due to which Noor Ahmad had grudge. He stated that on 06.05.2009 at 10:00 a.m. He, Arshad Farid (given up PW) and Shehzad Farid PW-10 hisbrother were present in the house and Mst. Shehnaz Begum deceased alongwith other family members was busy in household jobs near to them. Meanwhile Noor Ahmad accused/present appellant came on motorcycle China made, red colour, stopped motorcycle outside and entered into their house forcibly. He stated that in theirview he took out pistol from the Neifa of his Shalwar and raised lalkara to teach lesson for not giving the hand of Mst. Shehnaz Begum deceased. He stated that he while abusing fired with intention to kill Mst. Shehnaz Begum deceased which hit on her left eye and she fell on the ground. He stated that Noor Ahmed accused/present appellant while brandishing the pistol fled away on the motorcycle. He further stated that they took Mst. Shehnaz Begum deceased in a car for her treatment towards McLeod Gunj Hospital but she died on the way.
3. After registration of the case investigation started and on completion of the investigation, challan was submitted in the trial court.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 07.08.2009 against present appellant Noor Ahmad under sections 302 & 449 PPC to which he pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Muhammad Siddique PW-1, Muhammad Saeed Rana PW-2, Muhammad Siddique PW-3, Faiz ul Hassan PW-4, Muhammad Hussain PW-5, Abdul Jabbar PW-6, Abdul Jabbar PW-7, Lady Doctor Shamshad Naz PW-8, Mumshad Farid PW-9, Shehzad Farid PW-10, Muhammad Siddique Sabri SUPW11 and Shahid Ayub ASI PW-12 whereas PWs Sher Farid, Imran Farid and Ghulam Qadir were given up by the prosecution being unnecessary and tendered in evidence site plan Ex.PA, recovery memo of dead body Ex.PB, recovery memo of motorcycle Ex.PC, recovery memo of pistol 30 bore Ex.PD, recovery memo of blood stained earth Ex.PE, recovery memo of empty cartridge Ex.PF, recovery memo of Juti Ex.PG, postmortem report Ex.PH, inquest report Ex.PH/4, complaint Ex.PJ, copy of FIR Ex.PJ/1, report of Chemical Examiner Ex.PL, report of Serologist Ex.PM, report of FSL Ex.PN and closed the prosecution evidence.
6. Medical evidence was furnished by Lady Doctor Shamsha Naz PW-8, WMO THQ Minchanabad who stated that on 06.05.2009 at about 03:00 p.m she conducted postmortem examination on the dead body of Msf. Shehnaz Begum deceased and observed as under:- "EXTERNAL APPEARANCE.
' Dead body of a young female lying flat on charpai approximate height of 5 Teets. Wearing purple Qameez and Shalwar blood soaped and multi coloured doupata blood soaked. Her hairs was black and blood soaked and blood socked on scalp and posterior aspect of neck. Eyes and mouth were closed. Complexion pale. Armed were of the side of the body. Axillary and pubic hairs were shaved.
Chest and abdomen were normal in shape. Hymen torn. Introits admits two fingers easily. Edged were red not healed.
' Yellow white blood mixed discharge was present. Rigour mortus was fully developed upto the thigh (6 to 10 hours). Body was not decomposed. Postmortem staining were present.
INJURIES.
1. A round/oval shape lacerated wound inverted margins blacken edges measuring about 1cm x1/2 cm in diameter into blind depth situated on the left side of the fore-head just adjacent to the inner edge of the left eye brow. This was seems to be an entry wound.
2. A round/oval shape lacerated wound measuring about 1/2cm and half cm in diameter on the left posterior aspect of the neck just below the capital bone. This was exit wound.
CRANIUM AND SPINAL CORD.
' Skull was opened. Injury No,1 (entry wound) fractured the skull bone one left side of forehead above the left eye brow on its way which damages meninges and destroyed brain matter and makes injury No,2 (exit wound) on the lest posterior aspect of the neck just below occipital bone.
Spinal and vertebra were healthy.
THORAX.
' Wall ribs and cartilages are healthy. Pleura laryanx and tracheae, right Lunds, left lung, perricordium and Heart. All were normal and healthy.
ABDOMEN.
' Stomach contained 1 to 2 bolus food (small digestic) Hymen was torn with red margins introits admit two fingers easily. Yellow white blood mixed discharge was present. Two vaginal swabs were taken and sent to the Chemical Examiner Multan for detection of semen.
MUSCLES, BONES, JOINTS. Healthy. Already described OPINION. .
' In my opinion the cause of death in this case was due to injury No,1 and Injury No,2 which caused damage to the vital organ brain and meniges, which led to hemorrhage shock and death. These injuries were anti mortem and were sufficient to cause death in ordinary course of nature. Injury was caused by fire arm weapon. The probable time between the injury and death was within half an hour and between death and postmortem was within 24 hours, Alter the postmortem examination I handed over the dead budy alongwith the postmortem papers, the last worn clothes of the deceased and two sealed bottles to Muhammad Hussain 220/C. Exh.PH is the correct carbon copy of my postmortem examination report which is in my hand and bears my signature. While Exh.PH/1 and Exh.PH/2 were the diagrams which are in my hands and the same bears my signatures. I also signed the injury statement Exh.PH/3 and the inquest report Exh.H/4".
7. On the other hand, statement of present appellant was recorded under section 342 Cr.P.0 who refuted the allegations so leveled against him and Noor Ahmad present appellant has not opted to appear as a witness under section 340(2) Cr.P.0 and also did not produce the defence evidence and in reply to question "why this case against you and why the PWs deposed against you?" the appellant Noor Ahmad replied as under: - ' The PWs namely Mumshad Farid and Shehzad Farid the eye witness are real brothers of the deceased and are highly inimical towards me. In fact the complainant Mumshad Farid committed the murder of his sister Shehnaz Begum deceased himself and I have been made scapegoat by him to save his own skin in connivance with the I.O. Of this case and no other independent person had supported the prosecution version during investigation before the Police as well as in the court.
8. After conclusion of the trial. Learned trial court convicted the present appellant with above stated sentence through judgment dated 20.03.2010. Hence this appeal.
9. Learned counsel for the appellant contended that.-
(i) the judgment of the trial court dated 20.03.2010 is against law and facts on the file and is liable to be set-aside.
(ii) that the prosecution has failed to prove its case against the present appellant as there are many major discrepancies in the statements of the PWs further there is conflict between ocular evidence and medical evidence and the learned trial court has convicted the appellant on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law;
(iv) it is contended that as per statement of PW-9 Mumshad Farid, at the time of alleged occurrence his mother and sister were also present at the place of occurrence who witnessed the occurrence and likewise as per statement of Muhammad Siddique S.I/1.0 of the case, on the day of occurrence the mother of the complainant and a servant were present in the house but complainant did not produce them before him for recording of their evidence;
(v) it is contended that during the trial prosecution has failed to prove the presence of the PWs at the place of occurrence and lastly submitted that appeal may be accepted and the judgement of the trial court dated 20.03.2010 may kindly be set aside and appellant may be acquitted.
10. On the other hand, learned DPG assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:-
(i) prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal.
11. We have heard the learned counsel for the parties and perused the record.
12. The detail of prosecution case has already been given in paragraph No, 2 of this judgment, therefore, there is no need to repeat the same.
13. According to the FIR, occurrence took place on 6.5.2009 at about 10:00 am whereas FIR was registered on 6.5.2009 at about 11:00 am within one hour on the written application Ex.PJ of Mumshad Farid complainant PW-9 real brother of Mst: Shehnaz Begum deceased. The distance between police station and the place of occurrence (house of the complainant) is about 13 Km. The FIR is prompt one and has excluded the possibility of the substitution of the accused as FIR stood registered without unnecessary loss of time within one hour so chance of entering into deliberation and consultation with others to involve the appellant is excluded and all the material detail of the occurrence has been elaborately explained in the FIR.
14. The gist of the case is that Mumshad Farid complainant/PW-9 stated that on 6.5.2009 at about 10:00 a.m he alongwith Arshad Farid (given up PW) and Shahzad Farid PW-10 was present in his house and his sister Mst: Shahnaz Begum deceased was busy in work in the house meanwhile Noor Ahmed appellant came there on motorcycle and entered forcibly into his house while leaving his motorcycle outside the door of the house and pulled out his pistol from his Neifa' and raised lalkara thal they would be taught a lesson for not giving the hand of Mst: Shahnaz Begum deceased to him and made fire which hit on the left eve of Mst: Shahnaz Begum who fell on the ground and the accused fled away from the place of occurrence on his motorcycle. PW-9 Mumshad Farid stated in cross-examination that Mst: Shahnaz Begum deceased was standing in the courtyard towards the east of the room located in the northern side of their house adjacent to the western wall of their house. He stated that he, Arshad Farid (given up PW) and Shahzad Farid PW-10 were standing towards the north from his sister Mst. Shahnaz Begum deceased at a distance of about 33 feet from her, appellant Noor Ahmed came from eastern side/gate side and fired at the deceased from a distance of 17 feet. He further stated that accused Noor Ahmed fired at the deceased while saying that he would teach lesson for not giving the hand of the deceased Mst: Shahnaz Begum. He further admitted that Muhammad Ahmed brother of accused Noor Ahmed is married with the Phophizad, Mst: Munawar Bibi and further stated that his Phophi Shameem Bibi is married with Ghulam Ahmed son of Sher Baz paternal uncle of the appellant Noor Ahmed. He further stated that entire occurrence took place within 1-1/2 / 2 minute and at the time of occurrence no person came at the place of occurrence from surrounding. He further stated that police station is about 13 Km away from their house. He further stated that they did not inform the police the occurrence and at once took deceased to the hospital. Shahzad Farid PW-10 is real brother of Mumshad Farid complainant PW-9 and he stated almost the same story as stated by PW-9 Mumshad Farid complainant. In cross-examination Shahzad Farid PW-10 stated that accused/present appellant fired at Mst: Shahnaz Begum deceased from a distance of 16/17 feet and accused did not make any fire on them and none from the surrounding came at the place of occurrence and witnessed the occurrence.
' The place of occurrence is the house of Mumshad Farid PW-9 and Shahzad Farid PW-10 who are the inmates of the house and are natural witnesses of the occurrence. Presence of above mentioned eye witnesses at the spot at the relevant time (10:00 am on 6.5.2009) cannot be considered as unnatural or improbable. Both the above mentioned eye witnesses were cross- examined at length but their evidence could not be shaken during the process of cross- examination. They corroborated each other on all material aspects of the case. Their evidence is trust worthy and straight forward. There is another aspect of the case that the complainant Mumshad Farid PW-9 is a real brother of Mst: Shahnaz Begum deceased and it is case of single accused who is relative of the complainant party and it is highly improbable that complainant party would let off the real culprit and falsely implicate the present appellant who is relative of the complainant for the murder of his real sister Mst: Shahnaz Begum. Substitution in such like cases is a rare phenomena. The argument of the learned counsel for the appellant that PW-9 Mumshad Farid stated that his mother Mst: Hafeezan Bibi, his sister Shabeena Farid and deceased Mst.
Shahnaz Begum were present in the house at the time of occurrence and Mst. Shabeena was present in the room adjacent to the southern wall of their house, on the other hand, PW-10 stated that his mother was ill and was lying in a room and did not come out of the room after hearing of the lalkara and she did not witness the occurrence is not tenable because those persons were not produced before the trial court as witnesses and on this ground PW-9 Mumshad Farid complainant and Shahzad Farid PW-10 who are inmates of the house could not be disbelieved and further the arguments of the learned counsel for the appellant that the time of occurrence in the instant case is 10:00 am in the month of May 2009 and at that relevant time PW-9 Mumshad Farid and Shahzad Farid PW-10 should have been present in their field and not in their house where occurrence took place as they were agriculturist is not tenable because on the basis of mere probability the statements of eye witnesses cannot be thrown away. Reliance is placed on Elahi Bakhsh Vs. Rab Nawaz and other (2002 SCMR 1842) in which Hon'ble Supreme Court of Pakistan has held at page 1845 as under:- ' "Let we mention here at the outset that prosecution has proved the case beyond shadow of doubt by producing worthy of credence and irrefutable evidence. The statement of Elahi Bukhsh PW-7 duly corroborated by Abdur Razzaq PW-10 could not be brushed aside on flimsy grounds. The above-named by witnesses stood firm to the test of cross-examination and nothing advantageous could be elicited inspite of searching questions. Though Elahi Bukhsh PW-7 had shown some reluctance to admit the inter se relationship with the petitioner but on this score alone his version which otherwise is confidence-inspiring cannot be discarded. Insofar as his absence from the place of occurrence is concerned as per the statement of Muhammad Mumtaz PW-8 that is not convincing for the simple reason that no definite timings whatsoever was mentioned by Muhammad Mumtaz PW-8 but probable time has been mentioned and on the basis of mere probability the statement of an eye witness cannot be thrown away"
15. The argument of the learned counsel for the appellant that lady doctor Shamsha Nawaz PW-8 had observed blackening around wound of the deceased whereas distance between Mst: Shahnaz Begum deceased and Noor Ahmed appellant has been shown in rough site plan Ex.PK 15 feet which fact ruled out the presence of the eye witnesses at the place of occurrence is not tenable because alleged blackening around the wound would not only depend on the distance from where shot was fired but also depend upon the kind of weapon. Further, in the state of sensation and panic it is not justified to expect from a witness that he would mention the distance with exactitude as nobody bothers for any measurement in such a situation, so such conflict between medical and ocular evidence is not worth consideration. Reliance is placed on case Wahid Vs. The State (NLR 2002 Criminal 6) in which Hon'ble Supreme Court of Pakistan has observed at pages 10,11 & 12 as under:- ' "So far the second contention that the medical evidence was inconsistent to that of ocular evidence on the ground of presence of blackening around fire-arm injuries therefore the presence of PWs at the place of occurrence was doubtful has also no merit. The learned Division Bench of the High Court in the said respect has observed in Para 17 of the impugned judgment as follows:--- "17. The only objection raised by the defence in this behalf is that the doctor noticed blackening around the injuries, which could be caused only if the shot is made from a distance of one to four/five feet and not beyond that. It was pointed out that the witnesses stated that the injuries were caused from a distance of 38 to 42 feet. Arguments developed by the defence is that the witnesses were either not present at the spot or did not see any one firing at the deceased and gave the fire range by approximation. The investigating officer carried out inspection of the injuries and while preparing inquest report (Exh.PH) has mentioned about injuries in coloumn No,10 thereof.
He did not observe blackening around the wounds. Last worn clothes of the deceased, chadar (P1), vest (P2) and shirt (P3) were also delivered by the doctor to the Police after postmortem examination. It is clearly mentioned therein that shirt and vest had corresponding perforations, but there is absolutely no mention of any blackening around these holes. Non-observance of blackening around margins of the wounds and holes in the shirt and vest by the investigating officer is a clear proof of the fact that the shot had not been made from a close range. Had blackening been available on the clothes of the deceased, the examining doctor would have never omitted to mention the same. Colour of the skin has also not been furnished by the doctor. On receipt of injuries, the effected area undergone process of colour changing due to haemorrhage or swelling. Some time, skin becomes bluish and sometimes becomes black. Doctor has not mentioned the source of blackening as to whether it was due to deposit of gunpowder or due to heat affects of pellets. The doctor could easily take would wash or clothes wash for laboratory test to be sent percent sure of source of blackening but it was never done so. Firing is admitted by the accused side, even Riasat Ali accused, who made a detailed statement did not state as to from what distance the accused side had made firing. We attach no importance to this circumstance.
Defence version is absurd ridiculous and fantastic one. So it is rejected."
' In Muhammad Rafique alias Titai v. The State (PLD 1974 SC 65) this Court has observed:-- ' "We regret we cannot accept this argument for the reason that, in the first place, it is too much to expect that illiterate or semi-illiterate witness would be able to indicate the distance in question with scientific exactitude; in the second place, as observed by Burrard:--- ' "If the shot is fired with a cartridge loaded with black powder the blackening range is increased because of the smoke. On combustion black powder gives only about 44% of gaseous and 56% of volatile solid products, and it is this large percentage of volatile solid products, of combustion which cause the heavy smoke. And the smoke is far more potent to deposit blackening than the gasses generated by the combustion of nitro powders -(The identification of Fire-arms and Forensic Ballistics. P. 59).
' In the next paragraph, on the same page, the learned author goes on to add that:- ' "A self-loading pistol cartridges are smokeless, but revolver cartridges can be obtained loaded with black powder and it should be remembered that it is possible by filing down the rim to fire the revolver cartridges in a self-loading pistol of the correct caliber. So, the existence of smoke cannot be regarded as proof positive that a self-loading pistol was not used"
' "These observations go to show that the charring effect depends not only on the distance from which the shot is fired but also on the kind of powder used in the missile. We have no information in the present case on this point. In these circumstances, the positive testimony of the eye-witnesses, who are otherwise dependable and natural witnesses, cannot be set aside merely on the basis of the theoretical opinions relied upon by the defence."
' In the instant case besides what has been observed by the learned Division Bench of High Court defence could not bring in the cross-examination of the doctor who performed autopsy upon the deceased the material on the record the reasons for the deposit of alleged blackening by smoke and unburned gun-powder surrounding firearm injuries, considering that same would not only depend on the distance from which shot is fired but also on (i) the kind and quantity of gun- powder (charge) used in the cartridge and (ii) length of barrel and size of barrel diameter at muzzle end".
16. According to PW-8 lady doctor Shamsha Naz the cause of death in this case was due to injury No,1 and injury No,2 which caused damage to the vital organs brain and meniges, which led to hemorrhage shock and death and these injures were anti-mortem and were sufficient to cause death in ordinary course of nature and probable time between injury and death was within half an hour and between death and post mortem was within 24 hours, So it is concluded that medical evidence furnished by lady doctor Shamsha Naz PW-8 has fully supported the above mentioned account furnished by Mumshad Farid PW-9 and Shahzad Farid PW-10.
17. The argument of the learned counsel for the appellant that the injury No,1 which is entry wound is on the left side of the forehead which is adjacent to the inner edge of the left eye brow of Shahnaz Begum deceased whereas exit wound was observed by doctor on the left posterior aspect of the neck just below the occipital bone which shows that deceased did not receive fire arm injury as stated by the prosecution in a standing position is not tenable because it is settled proposition that once a bullet enters the human body its path cannot be determined as it may proceed in any direction after hitting a hard object like a bone. Reliance is placed on case titled "Gulraiz Akhtar and others Vs. The State (NLR 2008 Criminal 238) in which Hon'ble Division Bench of this Court has held at page 248 as under:- ' "Further, it is a settled proposition that once a bullet enters the human body its path cannot be determined as it may proceed in any direction after hitting a hard object like a bone. Interestingly not a single question was put by the defence to the said witness regarding the injuries being caused by a single shot or multiple shots. In the above background, we have no hesitation in holding that the eye witness account is in conformity with the medical evidence".
18. Muhammad Siddique Sabbri S.I PW-11 stated that on 18.5.2009 Noor Ahmed accused/present appellant during the interrogation disclosed and led to the recovery of pistol P-5 from his residential room lying in an iron box which was made into sealed parcel and taken into possession though recovery memo Ex.PD. This witness nowhere stated in his statement that residential house from where alleged recovery of pistol was effected is situated in which city, village or dis trict.
Further, Abdul Jabbar PW-6 also has not stated that the residential room of the appellant from where alleged recovery was effected is situated in wh ich city, village or district. Further Abdul Jabbar is neither Lumberdar nor Ex-counselor of the village and admittedly 1.0 has not associated any notable of the area in the recovery proceedings. Muhammad Siddique Sabri SI/1.0 of this case PW-11 further stated that on 14.05.2009 he arrested Noor Ahmed accused/present appellant and on 18.5.2009 during interrogation he disclosed and led to the recovery of pistol P-5 from his residential room lying on an iron box and same was made into sealed parcel and taken into possession through recovery memo Ex.PD and further stated that on the same day, Noor Ahmed present appellant got recovered motorcycle P-4 which was taken into possession through recovery memo Ex.PC. He further stated that on 6.5.2009 during spot inspection he secured one crime empty of pistol 30-bore P-6 which was made into sealed parcel and taken into possession though recovery memo Ex.PF and also secured one shoe P-7 which was taken into possession through recovery memo Ex.PG. Muhammad Siddique Muharrar PW-3 stated that on 6.5.2009 1.0 of this case handed over to him one sealed parcel said to contain crime empty which he kept for safe custody in Malkhana and for onward transmission to the office of FSL he handed over the same to Siddique 486/C on 12.5.2009 intact. Whereas Siddique 486/C PW-1 did not state before the trial court that the parcel of crime empty was given to him by PW-3 Siddique Muharrar and same was taken by him to the office of FSL and deposited there when we confronted this fact to learned counsel for the complainant and DPG they conceded that there is no evidence that crime empty was taken to FSL through such and such witness. Further Shahid Ayub ASI/PW12 stated that on 10.7.2009 he was posted as Muharrar and on day 1.0 handed over to him a sealed parcel said to contain pistol 30- bore which he handed over the same to Muhammad Hussain 777/C for its onward transmission to the office of FSL on the same day. He further stated in cross-examination that he remained posted as Muharrar at Police Station Mcleod Gunj since September/October 2008 till 10.07.2009 and further stated that the sealed parcel of pistol was already in Malkhana and was not handed over to him by the 1.0 after its recovery. According to the statement of Muhammad Siddique Sabri PW-11/I.0 of this case, pistol P-5 was recovered on 18.5.2009. It is not understandable that why the pistol remained with the 1.0 for a long time and he did not deposit the same with concerned person i,e, Shahid Ayub ASI PW-12 Muharrar of police station McLeod Ganj as stated by him.
19. In view of the above, it is our confirmed view that recovery has not been proved and same is disbelieved and positive report of the FSL Ex.PN is inconsequential when no witness from the prosecution appeared before the trial court and stated that he had taken the parcel of the crime empty to the FSL and deposited the same. Likewise, recovery of one shoe P7 is also disbelieved because eye witnesses Mumshad Farid PW-9 and Shahzad Farid PW-10 never stated in their statements that accused had left his shoe while running from the place of occurrence. Recovery of the motorcycle P-4, we think, is not an incriminating article in the instant case, hence no need to discuss on the recovery of motorcycle P-4 from the possession of Noor Ahmed.
20. The motive of the occurrence as stated by Mumshad Farid PW-9 that Noor Ahmed appellant had demanded the hand of Shahnaz Begum deceased but complainant refused the same.
Mumshad Farid PW-9 stated in cross-examination that engagement of the accused/present appellant with Mst: Shahnaz Begum deceased took place 2/3 months prior to the occurrence and no gift i,e, clothes and gold ornaments were taken or given at that time. No person from their brotherhood or from the accused brother hood was present at the time of engagement. Sisters, brothers and father of the accused Noor Ahmed came to their house for engagement whereas Shahzad Farid PW-10 stated in cross-examination that engagement of his deceased sister Shahnaz Begum with accused/present appellant Noor Ahmed took place one month prior to the occurrence, again said 2/3 months prior to the occurrence. Clothes, ornaments etc. Were taken and given at the time of engagement and prior to the occurrence nothing was returned back as a result of termination of the engagement. He further stated that they had returned the gold ornaments to the accused family after 2/3 days of the occurrence to Sabir Farid his Mamozad who returned the same to the accused family and he admitted that they did not produce Sabir before the I.O.
21. In view of the above stated discussion, it is concluded that prosecution has not proved motive against the present appellant and admittedly, Mst: Hafeezan Bibi real mother of Shahnaz Begum deceased and his sister Mst: Shabeena Bibi have not been produced during the investigation as well as before the trial court regarding the motive story and further Muhammad Siddique Sabri S1/1.0 PW-11 stated that he had not recorded the statement of mother of the complainant or any other elder of his family to verify the motive mentioned in the FIR after reaching at the place of occurrence. Further we think that it is not the case of the prosecution that Mst: Shahnaz Begum deceased had refused marry with Noor Ahmed accused rather complainant stated that they refused to give the hand of Mst: Shahnaz Begum deceased to Noor Ahmed accused, In that eventuality Noor Ahmed appellant could have grudge against the complainant but not against Mst: Shahnaz Begum deceased.
22. We have disbelieved the prosecution evidence qua the motive and recoveries of pistol P-6 as well as shoe P-7 but if the prosecution evidence qua the motive and afore mentioned recovery is excluded from consideration, even then, there is sufficient incriminating evidence available on the record to prove the prosecution case against the appellant as discussed earlier by us. Therefore, we are of the view that the prosecution has proved it case against the present appellant beyond any shadow of doubt. On the other hand, appellant in answer to question why this case against you and why the PWs deposed against you replied that Mumshad Farid and Shahzad Farid PWs are real brothers of the deceased and are highly inimical towards him and in-fact the complainant Mumshad Farid committed the murder of his sister Shahnaz Begum deceased and he had been made scapegoat in this case to save his own skin in connivance with the 1.0 and his statement was reproduced in para No,7 of this judgement. But admittedly, neither he appeared as a witness under section 340(2) Cr.P.0 nor he produced any defence evidence in support of his plea thus same is discarded.
23. Now coming to the question of sentence, we have noted some mitigating circumstances in favour of the appellant. We have observed in the preceding para that the recovery of the pistol is not proved and further it is a case of single fire shot and there is no allegation of repetition of any firearm injury against the present appellant and motive has not been proved by the prosecution and it is not ascertainable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which resulted into present unfortunate incident, therefore, in our view, the death sentence awarded to the appellant is quite harsh. It is well recognized principle of law that accused is entitled to the benefit of doubt in an extenuating circumstance while deciding the question of sentence as well. In this regard, we respectfully refer the case of Mir Muhammad alias Miro Vs. The State (2009 SCMR 1188) wherein it has been held 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".
24. Reliance is also placed on case titled Hasil Khan V. The State etc. (NLR 2013 Criminal 21) in which Hon'ble Supreme Court of Pakistan has observed at page 28 & 29 as under:--- ' "however, coming to the question of enhancement of sentence by the learned High Court, we find that the learned High Court did not appreciate that motive alleged in the FIR was rather weak and there was no reason why Saeed Bakhsh, deceased, should have been the victim of the said motive part of the prosecution story. Moreover, as rightly observed by the learned Trial Court the immediate motive remained shrouded in mystery and the Trial Court rightly did not awarded the maximum sentence of death provided under Section 302 (b), PPC to the appellant. The enhancement of sentence by the learned High Court, we may observe with respect, is not in accord with the law laid down by this Court in Muhammad Ashraf Khan Tareen V. The State (1996 SCMR 1747) wherein at page 1755. The Court dismissed complainant's appeal and did not enhance the sentence by holding as follows -- ' "in respect of sentence, learned counsel for the complainant/State wanted conversion of the life imprisonment into death sentence. Learned counsel cited case of Iftikhar Ahmad V. The State (PLD 1990 Supreme Court 820) where criminal petition by the complainant challenging reduction of sentence by the High Court, was dismissed by this Court on the ground that the principle of origin of offence remained shrouded in mystery. This authority does not further prayer of the complainant for awarding death penalty to the appellant. In the present case prosecution did not allege any specific motive for commission of the offence. In the circumstances, the appellant could not have been awarded the death penalty".
' Similarly in Jehanzeb v. The State (2003 SCMR 98), the Court altered the sentence of death of the convict to life imprisonment by observing that where motive alleged by the prosecution has not been satisfactorily proved, this may be considered as a mitigating circumstance qua the quantum of sentence".
25. For the foregoing reasons, the conviction of Noor Ahmed appellant under section 302 (b) PPC awarded by the trial court is maintained and his sentence is altered from death to life imprisonment. The compensation awarded by the trial court and sentence in default thereof is maintained and upheld. Benefit of section 382B Cr.P.0 is also extended to appellant and the conviction and sentence awarded to the appellant under other head shall remain intact and all the sentences shall run concurrently. Consequently with the above said modification in the sentence of Noor Ahmed present appellant, Criminal Appeal No,140 of 2010. Filed by Noor Ahmed appellant is hereby dismissed. Death sentence is not confirmed and Murder Reference No,12 of 2010 is answered in negative.