' MANZOOR AHMAD MALIK, J.---This judgment shall dispose of Criminal Appeal No, 461 of 2009 titled as "Samiullah Khan versus The State" and Murder Reference No, 157 of 2009 titled as "State versus Santhillah Khan" as both these matters have arisen out of the same case i.e, PR No 250/2008, dated 30.11.2008, offence under Sections 302 and 34. PPC, registered at Police Station Mochh, District Mianwali.
2. Samiullah Khan (appellant) was tried by the learned Sessions Judge Mianwali in the above- mentioned case. He was convicted vide judgment dated 26.3.2009, under Section 302(b), PPC and sentenced to death. He was also directed to pay Rs, 1,00,000/- (rupees one lac only) as compensation to the legal heirs of Rehmatullah (deceased) aad in default whereof to undergo simple imprisonment for further six months. However, co-accused of the appellant Kifayatullah Khan has been acquitted' of the charge by the same judgment and Criminal Appeal No, 548 of 2009- against his acquittal filed by the complainant was dismissed due to non-prosecution vide order dated 21.7.2009. Assailing the above conviction and sentence, Samiullah Khan (appellant) has filed the appeal in hand, whereas the, learned Trial Court has 'sent Murder Reference No 157 of 2009 for confirmation or otherwise of - the sentence of death awarded to Samitillah Khan (convict) as required under Section 374, Code of Criminal Procedure.
3. Precisely, facts of the case, as contained in FA. R. (Exh.PA/1), registered on the basis of statement (Exh.PA) made by, Amir Abdullah Khan (PW.9), are that on the fateful day i.e, 29.11.2008 he (complainant) alongwith Rehmat Ullah Khan son of Matee Ullah Khan, Bezar Khan son of Ziaullah Khan, caste Pathan Hindaal Khel and Haji Ataullah Khan son of Murtaza Khan, caste. Pathan Hamayun Khel, residents of Mochh were sitting at the shop of Bezar.Khan. At about 11:30 p.m. (night)
Rehmatullah (deceased) went out from the shop to answer the call of nature. When he reached near the shop of Saifullah Khan Dargai Khel, Samiuliah Khan (appellant) armed with 12-bore pistol and Kifayatullah Khan empty-handed sons of Bashir Ahmad Khan, caste Hidaal Khel, residents of Mohallah Hindaal carne there. Kifayatullah raised a lalkara to be alertand on that lalkara complainant alongwith Bezar Khan and Ataullah Khan while running came out from the shop. At that time 6/7 electric bulbs were' lit. Within their view Samiullah made a straight fire with pistol 12- bore at Rehmatullah hitting him in the front of chest on its left side and on lift wrist. Rehthatullah fell down. 'Complainant aIongwith other PWs because of fear did not go ahead: Samiullah and Kifayatullah while raising Ialkaras went away towards west. Complainant alongwith his companions were taking Rehmatullah in a wagon Hilux to hospital at Mianwali but on the way he succumbed to the injuries. Motive behind the occurrence as alleged in the FIR was that one day earlier Samiullah had broken the pots at the hotel of Bezar Khan on which Rehmatullah had forbidden Samiullah from visiting there and there was exchange of abuses between them. On that grudge Samiullah and Kifayatullah in furtherance of their common intention had committed the murder of Rehmatullah. Complainant left the dead-body in the emergency ward under the escort of. Bezar Khan and Ataullah Khan PWs and proceeded towards Police Station to report the matter.
4. Muhammad Ashraf, SI, (PW.11) was posted at Police Station Mochh District Mianwali. On 30.11.2008 be reached at District Headquarters Hospital, Mianwali after receiving the information about The occurrence. Complainant appeared before him and made his statement (Exh.PA). He sent the complaint for registration of case through Matiullah Constable. Thereafter he prepared injury statement (Exh.PG) and inquest report (Exh.PH). He arrived at the cace of occurrence and look into possession blood-stained earth vide recovery memo. (Exh.PF) and drafted rough site plan (Exh.PI).
He took into possession last worn clothes of deceased viz, shirr(P.1), shalwar (P.2), bunyan (P.3) and jarsi (P.4) vide recovery memo. (Exh.PD). He also got prepared scaled site-plan (Exh.PB and Exh.PB/1) by Muhammad Shafiq Draftsman (PW.4). On 6.12.2008 he arrested Samiullah (appellant) and Kifayatullah (accused since acquitted). On 4.12.2008 Sarniullah Khan (appellant) got recovered pistol 12-bore (P.6) alongwith five live cartridges (P.7/1-5) which was taken into possession vide recovery memo. (Exh.PE). Thereafter he got prepared the challan and submitted the same in the Court of competent jurisdiction.
5. The appellant and his co-accused were summoned by the learned Sessions Judge Mianwali to face the trial. Copies of the documents, as required under Section 265-C, Code of Criminal Procedure, were provided to them and formal charge under Section 302 read with 34, PPC was framed against them on 9.2,2009 to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as eleven witnesses, in all. Ocular account was furnished by Amir Abdullah Khan complainant (P.W.9) and Bezar Khan (PW.10). Medical evidence was furnished by Dr. Muhammad Rafiq (PW.6). Muhammad Yousaf 836/C (PW.8) witnessed the alleged recovery of pistol 12 bore (P.6) at the instance of appellant which was taken into possession vide recovery memo. (Exh.PE). Muhammad Ashraf, SI (P-W.11) investigated this case and. While appearing in the witness-box, narrated the various steps taken by him during the course of investigation. Rest of the witnesses are formal in nature. Learned ADPP gave up PWs namely Ataullah Khan, Shafiullah Khan. Matiullah and Ahmad Nawaz being unnecessary vide statement dated 24.2.2009 and closed the prosecution case after tendering in evidence the reports of Chemical 'Examiner. (Exh.PJ), Serologist (Exh.PK) and Forensic Science Laboratory (Exh.PL).
Statements of the appellant and his, co-accused were ,recorded under Section 342, Code of Criminal Procedure wherein they refuted all the allegations of prosecution; To a question as to why the case against him and why the prosecution witnesses had deposed against him, Samiullah Khan (appellant) replied as under:-- "I have been involved in this case due to enmity. It was an unseen occurrence: Deceased was also having other enemies in the same locality and he was done to death by some of his enemies in the odd hours of the night. Complainant and witnesses having connivance with police after due deliberations and consultations by way of untrue story involved me and my brother falsely in this case. I am innocent. At the time of alleged occurrence it was also load shedding so source of electric light is also result of concoction just to support, false prosecution case. I am innocent."
' The appellant did not appear as his own witness as provided under Section 340(2), Code of Criminal Procedure. However he produced Sheraz Sheikh,, SDO WAPDA (DW.1) to prove that at the time of occurrence it was load shedding. After tendering certified copies of FIR No, 145, dated 27.8.2003 (Exh.DE), FIR No, 162, dated 26.11.1996 (Exh.DF), FIR No, 135, dated 4.8.1999 (Exh.DG), FIR No, 2, dated 13.1.1992 (Exh,DH), FIR No, 22, dated 21.2.1992 (Exh.DI), FIR No, 31, dated 6.2.2000 (Exh.DJ), FIR No, 105, dated 22.5.2001 (Exh.DK), FIR No,
73. Dated 14.4.2007 (Exh.DL), FIR No, 203, dated 12.12.2003 (Exh.DM), FIR No, 176, dated 16.9.2008 (Exh.D0) all of Police Station Mochh, original electricity bills (Exh.DP) and (Exh.DQ) both the accused closed the defence evidence vide statement dated 6.
3. 2009.
6. After 'conclusion of the trial, the learned Trial Court convicted and sentenced the appellant as detailed above. Hence, this appeal and murder reference.
7. Learned, counsel for the appellant, in support of this appeal, contends that, as a matter of fact, it was an unseen occurrence which took place in Mochh Bazar at 11:30 p.m. (night) when all the shops had been closed; that there was load shedding at the time of occurrence which fact has been confirmed by Sheraz Sheikh, SDO (DW.1) who produced the load shedding schedule according to which there was load shedding from 11:00 p.m. To 12:00 midnight on 29.11.2008; that both the witnesses of the cicular account are chance witnesses as Amir Abdullah Khan complainant (PW.9) is resident of Wandha Hurnayun Khelan Wala Dakhli Mochh, which is at a distance of 05 kilometers from the place of occurrence; that the Amir Abdullah Khan complainant (PW.9) has not been able to assign any reason for his presence at the place of occurrence and similarly there was no occasion for Bezar Khan (PW.10) the other witness of the ocular account to be present at the shop at the relevant time; that the claim of Bezar Khan (PW.10) that he was running the shop/hotel near which the occurrence took place but as per site plan (Exh.PB) the 'said shop/hotel Was shown to be occupied by one Muhammad Javed; that the witnesses of the ocular account are not only chance, interested but also inimical as it has come on the record that the appellant's side had enmity with the tribes of the complainant party and different cases were registered against each other; that there is contradiction b tween ocular account and medical evidence because as per FIR and the statements of the eye-Witnesses only one shot was attributed to the appellant whereas Dr. Muhammad Rafiq, (PW.6) who, . Conducted the post-mortem examination on the dead-body of deceased observed two injuries: that the alleged recovery of pistol 12 bore (P.6) at the instance of appellant is inconsequential as no empty was recovered from the spot and the report of Forensic Science Laboratory (Exh.PL) $ simply to the effect that the. Pistol was in working order; that the motive behind the occurrence as alleged in the FIR was that one day earlier to the occurrence Samiullah (appellant) had' broken the pots at the hotel of Bezar Khan and Rehmatullah refrained him from coming to the shop/hotel which resulted, into exchange of abuses between them and due to the said grudge appellant committed the murder of Rehmatullah (deceased) but before the learned Trial Court Amir Abd llah Khan complainant (PW.9) changed the motive and without making any reference to the breaking of pots simply stated that one day prior to the occurrence there was exchange of abuses between deceased and Samiullah (appellant); that both the witnesses 'of the ocular account have stated in their cross examination examination that they did not produce any witness regarding the motive during the investigation and even Muhamma Ashraf. S.I. (PW.11) has also confirmed this fact that no witness was produced before him about the motive of this case; that even otherwise the story. Of -quarreling of appellant with the deceased on breaking the pots at the shop/hotel of Bezar Khan is improbable; that the case of prosecution is of doubtful nature and the appellant is entitled to acquittal.
' On the other hand, learned Deputy Prosecutor General, -assisted by, learned counsel for the complainant, opposes this appeal on the grounds that the presence of ,Amir Abdullah Khan complainant (PW.9) and. Bezar Khan (PW.10) the other winless of the ocular account established from the fact that the occurrence, took place on 29.11.2008 at 11:30 p.m. (night) and the matter was reported to the police at 12:30 (night) i.e, just after one hour of the occurrence and even the Post- mortem examination on the dead-body of Rehmatullah (deceased) was conducted by Dr. Muhammad Rafiq'(PW.6) at 6:00 a.m., on 30.11.2008 i.e, after 61/2 hours of the occurrence; that presence of Bezar Khan (PW. 10) at the spot cannot be doubted as the occurrence took place close to his shop and during the course of cross-examination no suggestion was put to the said witness that he was not running the shop/hotel; that the defence side has not disputed the place of occurrence and if the presence of the appellant at the spot is not disputed' then the presence of the witnesses of the ocular account at the spot is also probable. Teamed counsel for the complainant further contends that there is no direct enmity between the appellant and the complainant's side as no case was ever registered against each other; that even otherwise substitution in such-like cases is a rare phenomenon as kith and kin of the deceased would not implicate an innocent person by letting off the real culprits; that the motive has also been proved; that the medical evidence is exactly in line with the ocular account; that the prosecution case is further corroborated by the recovery of pistol 12 bore (P.6) which . Was taken into possession on 06.11.2008 through recovery memo. (Exh.PE) coupled with the report of Forensic Science Laboratory (Exh.PL). So tar as defence witness is concerned, learned counsel contends that the schedule of load shedding produced by Sheraz Sheikh SDO (DW.1) is not reliable as original copy of load shedding schedule was' not produced before the learned Trial Court and even otherwise parties were known to each other. Theretore, there was no question of misidentification; that the appellant caused fire-arm injuries to the deceased, therefore, he does not deserve any leniency even in the quantum of sentence.
9. We have heard learned counsel for the appellant, learned counsel for the complainant as well' as the learned Deputy Prosecutor General < for the State at a considerable length and have also gone through the record with their able assistance.
10. This unfortunate incident, wherein Rehmatullah, was done to death, as per FIR (Exh.PA/1) took place, on 29.11.2008 at 11:30 p.m. (night) in the main bazar Dargai Khel situated within the jurisdiction of Police Station Mochh" District Mianwali and the matter was reported to the Police by Amir Abdullah Khan (PW.9) at 12:30 (night) i.e, after one hour of the occurrence and even the post- mortem examination on the dead-body was conducted at 6:00 a.m., on 30.11.2008 i.e, after 6-1/2 hours. Of the occurrence. In the circumstances; we are of the view that the crime was reported to the Police with due promptitude which rules out the chances of deliberation, concoction and consultation on the part of the prosecution..
11. The ocular "account was furnished by Amir Abdullah Khan "complainant (PW.9) and Bezar Khan (PW.10). Both the witnesses of the ocular account are the residents of the same area where the occurrence took, place as the complainant is resident. Of. Wandha Humayun. Khelan Wala Daklili Mochh which is at a distance of about five kilometers from the place of occurrence, whereas Bazar Khan(PW.10) was running the shop/hotel close to which this incident took place. No suggestion was put to the said witness during the cross-examination by the defence that he was not running the " hotel/shop. Moreover, the place of occurrence and the presence of the deceased at the spot are not disputed, therefore, the presence of witnesses of the ocular account at the spot cannot be considered unnatural or improbable. Presence of the witnesses of the ocular account is further established from the tact that the matter was reported to the police just after one hour of the occurrence. We further noted that there was no direct enmity between the parties to prompt the complainant or the other witness of the ocular account to falsely depose against the appellant.
Though there was, enmity between the tribes of the complainant and appellant's, side but no case was either got registered by the complainant or deceased, against the appellant or vice versa as conceded by learned counsel for the appellant. It is a case of single accused so tar as the actual occurrence is concerned and in such-like cases it is improbable. That kith and kin of the deceased would let off the real culprit and substitute some innocent person.
' Here we refer to the case of "Khalid Saif Ullah versus The State" (2008 SCM R 688) wherein Hon'ble Supreme' Court of Pakistan observed as under:-- "Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of Irshad Ahmad and others v.
The State and others (PLD 1996 SC 138)."
12. It is the case of the cofirplainant that Samiullah Khan (appellant) made a straight fire with pistol 12-bore at Relunatullah (deceased) hitting him in the front of chest on its left-side and on left wrist.
Dr. Muhammad Rafiq (PW.6) who conducted post-mortem examination on the dead-body of Rehrnatullah (deceased) noted the following injuries:--
(1) Total three fire-arm wounds of entries in a group shape of covering total area of 5 x 6 cm of 3 x 1, 1 x 1, x '/2 cm in sizes, in front of left chest. It was 21/2 cm above the left nipple at 1 0' clock position.
Burning and blackening on edges of wounds was present.
(2) A grazing fire-arm wound of 3 x 21/2 cm at the anterior surface of left wrist. Burning and blackening were present.
Therefore, we are of the view that ocular account is supported by medical evidence.
13. So far as recovery of pistol 12 bore (P.6) at the instance of appellant which was taken into possession on 6.11.2008 vide recovery memo. (Exh.PE) is concerned the same is immaterial as no crime empty was collected from the place of occurrence and the report of the Forensic Science Laboratory (Exh. PL) is simply to the effect that the pistol 12 bore was in working order.
14. The motive behind the occurrence as alleged in the FIR was that one day earlier to the occurrence. Samiullah (appellant) had broken the pots at the hotel of Bezar Khan and Rehmatullah (deceased) refrained him from coming to the shop/hotel which resulted into exchange of. Abuses between them and due to the said grudge appellant committed the murder of Rehmatullah (deceased) but before the learned Trial Court Amir Abdullah Khan complainant (PW.9) stated that one day prior to the occurrence there was exchange of abuses between deceased and Samiullah (appellant) without making any reference to the breaking' of pots. Moreover, both the witnesses of the ocular account have stated in their cross-examination that they did not produce any witness regarding the motive during the investigation and even Muhammad Ashraf, S.I. (PW.11) has also confirmed this fact that no witness was produced before him about the motive of this case. Even otherwise it is does not appeal to common sense as to why the deceased quarreled with the appellant and refrained him from visiting the shop/hotel when he was not the owner of the said shop/hotel. Therefore, we are of the view that prosecution has failed to prove ,the motive part of the occurrence.
15. So far as acquittal of the other co-accused namely Kifayatullah is concerned, the appellant cannot get any benefit of the acquittal of said accused as he was empty-handed at the spot and only lalkara was attributed to him.
16. Taking up the argument advanced on behalf of the appellant that there was load shedding at the time of occurrence. The schedule of load shedding produced by Sheraz Sheikh SDO (DW.1) is not reliable as original record was not produced before the learned Trial Court and even otherwise both the parties were known to each other and the occurrence took place in the main bazar, therefore, there was no question of misidentification.
17. There is sufficient incriminating evidence on the record in the form of straightforward and confidence inspiring ocular account furnished by Amir Abdullah Khan complainant (PW.9) and Bezar Khan (PW.10), supported by the medical evidence furnished by Dr. Muliamniad Rafiq (PW.6), even if the evidence of motive and recovery of 12 bore pistol (P.6) at the instance of appellant are excluded from consideration to maintain the conviction of Samiullah Khan appellant under Section 302(b), PPG awarded by the learned Trial Court, which is accordingly maintained.
18. However, we have noted that it is not a case of capital punishment for the following reasons:--
(a) Recovery of pistol 12 bore (P.6) is not helpful for the prosecution because of the reasons as elaborated in para 1.3 above.
(b) Motive has not been believed by us as discussed in para 14 above.
(C) Only single fire shot is attributed to the appellant and there is no allegation of repetition of firing against him.
(d) Besides the appellant one other person namely Kifayatullah Khan was also implicated in this case. He has been acquitted, by the learned Trial Court. Appeal against his acquittal was dismissed on 21.7.2009 about four years back and the said order was not assailed any further.
' Moreover, by now ,it is well-recognized principle of law that the accused is entitled for the benefit of any doubt as an extenuating circumstance; while deciding question of sentence. We, here, respectfully refer to an observation of the Hon'ble Supreme Court of Pakistan in the case of "Mir Muhammad alias Miro versus The State" (2009 SCM R 1188) wherein at page 1191, the Hon'ble, Supreme Court of Pakistan has emphasized as under:- "9. It will not be out place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the ( ourts. 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."
19 Therefore, while maintaining the conviction of Samiullah Khan (appellant) under Section 302(b), PPC, we alter his sentence from punishment of death to imprisonment for life. The amount, of compensation and the sentence of imprisonment in default thereof as ordered by the learned Trial Court is maintained. Benefit of Section 382-B, Code of Criminal Procedure is also extended to the appellant. With the above modification in the quantum of sentence Criminal Appeal No 464 of 2009 is dismissed.
19. Murder Reference No 157 of 2009 is answered in the NEGATIVE and the sentence of death awarded to Samiullah Khan (convict) is NOT CONFIRMED.
Death Sentence Reduced to Life Imprisonment.