SALAHUDDIN PANHWAR, J.---The appellant Abdul Ghaffar has assailed the Judgment dated 22nd March, 2010, passed by learned Sessions Judge, Jacobabad, in Sessions Case No. 284 of 2009 "Re- S/v Abdul Ghaffar" under section 302, 34, P.P.C. Arising out of Crime No.107 of 2009 registered with PS Saddar, whereby the appellant has been convicted for offence punishable under section 302(b), P.P.C. And sentenced to death as 'Tazir'.
2. The facts of the prosecution case briefly 'stated are that on 10-7-2009 at 0900 hours complainant Mashooque Ali son of Muhammad Tagial Kourejo lodged report with Police Station Saddar Jacobabad with an allegation that her sister Mst. Sikanderi was married with Muhammad Umer Kourejo but she, being annoyed with her husband, was residing with complainant. Maternal uncle of complainant namely Manzoor Ahmed alias Mithal asked to seek divorce of sister which was refused. On fateful night complainant, his brothers Muhammad Ali, Muhammad Bux, mother Mst. Afroz and sister Mst. Sikanderi were sleeping in house when at 1-00 a.m. There was a knock at door of the house; they woke-up and on opening the door maternal uncle Manzoor Ahmed alias Mithal, Abdul Ghaffar, Sikander, Waqar intruded into house by raising hakals that complainant party not gave hand of Mst. Sikanderi to them so they will not let complainant party to give hand of Mst. Sikanderi to any one else. Saying so, all accused, having taken out TT pistols from folds of their shalwars, pointed out at complainant party and then accused Abdul Ghaffar fired at Mst. Sikanderi with his TT pistol which hit her and she fell down while crying; on that mother Mst. Afroz raised cries upon which accused Manzoor alias Mithal fired with his TT pistol at her which hit her and she also fell down. Thereafter, all accused persons eluded Mst. Afroz and sister Mst. Sikanderi were found dead.
3. During course of investigation police arrested the appellant Abdul Ghaffar; after usual investigation submitted the challan/charge sheet wherein other co-accused persons were shown as absconders.
4. After proceedings against absconding accused persons, as required under sections 87/88, Cr.P.C., the compliance of section 265-C, Cr.P.C. Was made and then learned trial Judge framed the charge against the appellant at Exh.5 to which he denied the allegations and claimed his trial by plea, recorded as Exh.5.
5. To substantiate its' case, prosecution examined following witnesses:-
(i) P.W.1 Dr. Romana at Exh.7. She produced post-mortem report of Mst. Afroz as Exh.7-A, post mortem report of Mst. Sikanderi as Exh.7-B;
(ii) P.W.2 Tapedar Kamil as Exh.8. He produced sketch of Vardat as Exh.8-A;
(iii) P.W.3 Abdul Wahab as Exh.9. He produced receipt of delivery of dead bodies as Exh.9-A;
(iv) P.W.4 ASI Qaimdin as Exh.10. He Produced mashirnama of arrest and recovery at Exh.10-A;
(v) P.W.5 complainant Mashooque Ali as Exh.11. He produced FIR at Exh.11-A;
(vi) P.W.6 Muhammad Ali as Exh.12;
(vii) P.W.7 Javed as Exh.13. He produced mashirnama of examination of dead bodies, Danistnama of dead body of Mst. Sikander, Danistnama of dead body of Mst. Afroz as Exh.13-A to 13-C respectively; (viii)P.W.8 Qamaruddin at Exh.15;
(ix) P.W.9 SIO Amanullah as Exh.16. He produced Lash Chakas Form of Mst. Sikanderi, Lash Chakas Form of Mst. Afroz, attested copy of roznamcha entry dated 17-7-2009, Chemical Examiner report and Ballistic Expert report as Exh.16/A to 16/E respectively; There after, the learned District Public Prosecutor closed the prosecution side through statement at Exh.17.
6. The statement of appellant/accused was recorded under section 342, Cr.P.C., wherein he denied allegations and claimed innocence. However, he did not examine himself on oath as provided under section 340(2), Cr.P.C., but examined Muhammad Bux as defence witness at Exh.19.
Thereafter, learned defence counsel closed defence side by statement at Exh.20.
7. Learned counsel for the appellant has contended that impugned judgment is against the settled law of criminal administration of justice; incident was of nighttime; source of electricity was not shown, therefore, case is doubtful. The alleged motive is unreasonable; complainant party themselves killed both the ladies on account of honour killing; thereafter implicated appellant and his other family members in order to settle the score with regard to the dispute over the property.
Appellant was pauper at the trial, thus no proper opportunity of cross-examination was availed.
P.W. Muhammad Bux, who is brother of the complainant, though was cited as eye-witness by prosecution but he was not examined by the prosecution without any justification. Although he was examined as defense witness, whereby he denied the presence of the complainant and other witness, namely, Muhammad Ali at the time of incident.' According to him, this is unseen incident.
Single benefit of doubt is right of the appellant, therefore, appellant may be acquitted as prosecution case suffers from many dents. In support of his contentions, learned counsel for the appellant has relied upon the cases of Asghar v. The State 1999 PCr.LJ 20, Muhammad Irshad and another v. The State 1999 SCMR 1030, Asadullah and another v. The State and another 1999 SCMR 1034 Sahibdino and others v. The State 2000 PCr.LJ 191 and Syed Imtiaz Hussain Shah v. The State 2007 YLR 1920.
8. Conversely, learned A.P.G., while refuting above contentions has argued that impugned judgment is in accordance with law. Eyewitnesses have given complete direct version regarding incident. All the witnesses are stead fast inter se on all account; D.W. Muhammad Bux has not exonerated the appellant and also has not claimed as eye-witness of the incident, therefore, his evidence has no legal sanctity.
9. After consideration of contentions raised by learned counsel for the respective parties and scanning the evidence, we need to add here that the prosecution is required to prove its case through direct evidence before seeking corroboration from other pieces of evidence. Therefore, it would be proper to examine the ocular account first.
10. Scanning of the record would show that as per prosecution case there were three eye- witnesses of the incident i.e. Complainant Mashooque Ali, his brothers namely Muhammad Ali and Muhammad Bux as is evident from the FIR and statements of P.Ws. Mashooque Ali and Muhammad Ali, examined by prosecution. The relevant portions are reproduced here under:- Per FIR:- "I, my brothers Muhammad Ali and Muhammad Bux are residing at the above said address'
Per P.W. Complainant Mashooque Ali (Exh.11): "I and my brothers Muhammad Ali and Muhammad Bux are residing in one and the same house"
Per P.W. Muhammad Ali (Exh.12): "I and my brothers Mashooque Ali and Muhammad Bux are residing in one and the same house"
11. Since the place of incident is undisputedly within the house of the complainant party therefore, presence of the complainant party (the eye-witnesses) was natural particularly, when the alleged time of incident was 1-00 a.m. The appellant and the absconding accused persons, happened to be the close relatives of the complainant party hence there was no chance of mistaken identity of the culprits by the complainant party. The scanning of the evidences of these two witnesses would show that they strongly stuck with regard to manner of whole the incident i.e. Starting from knock till fatal fire-shots to both the deceased by culprits, including the appellant. The witnesses were subjected to cross-examination but no material contradiction was brought on the record by the defence. It is also a matter of record that the complainant Mashooque Ali and P.W. Muhammad Ali are the real brothers of deceased Mst. Sikandari while real sons of deceased Mst. Afroz, therefore, substitution of real culprits by such blood relations cannot be believed. These witnesses have also not been alleged to be interested because it is now well settled principle of law that an interested witness is one who is partisan or inimical towards the accused or has a motive or cause of his own to falsely implicate the accused in the crime. The cause or motive, taken by defence to justify his false involvement, is the dispute over landed property. Mere words of dispute would never be sufficient to believe that real brothers and sons would let the blood of their sister and mother waste on such a dispute by substituting the real culprits with innocent persons. Thus, the cause or motive of false implication of the appellant is not worth believing.
12. Now let's examine the evidence of last eye-witness namely Muhammad Bux as defence witness.
His evidence being contradictory to that of prosecution witnesses, is reproduced here under:- "Complainant Mashooque Ali and P.W. Muhammad Ali are my brothers; they on 10-7-2009 went to attend the marriage ceremony at Wakro, I with my wife then remained with mother Mst. Afroze and sister Mst. Sakina alias Sikanderi, there in the house, after taking meal. I and my wife slept in the room while my mother Mst. Afroze and sister Mst. Sakina alias Sikanderi slept in veranda of our house, there at about 1-00 a.m. I and my wife heard fire shot reports, came out of the room and found my mother Mst. Afroze and sister Mst. Sakina alias Sikanderi dead. I related the incident to the complainant on phone, he with P.W. Muhammad Ali came at morning time. I took the dead bodies of said deceased to hospital while complainant went at PS Saddar Jacbabad and lodged FIR of the incident. He did not consult with me before lodging of FIR. We have got a house at hub Chowki Baluchistan which is in possession of our maternal uncle Manzoor. The complainant named the present accused in FIR because of our dispute with his father over house at Hub Chowki at Baluchistan. Mst. Sakina alias Sikanderi was not having good relation with her husband and was residing with us and her husband was issuing threats of dire consequences to us."
13. The evidence of the D.W. Muhammad Bux, though denies presence of the complainant and P.W.
Muhammad Ali, at the place of incident at the relevant time but it does not show as to who had opened the door for the murderer to come and kill two ladies and why considerably time was taken in stepping out of the room because of which he (D.W. Muhammad Bux) and his wife could not see murderer. It is also not worth swa llowing that why this witness remained silent during whole course of trial and let the innocent persons to face the charge of murder of his sister and mother. Further, in his cross- examination he has admitted that: "I am step brother of the complainant; name of my mother is Mst. Gullan. Mst. Afroze is real mother of the complainant. Mst. Sakina alias Sikanderi is real sister of the complainant. "
14. Such words of the D.W. Muhammad Bux cannot prevail over the evidence of real sons and brothers particularly, when they have not been alleged to having such a cause or consideration of their own which could be taken to believe that they would falsely involve innocent(s) in place of real culprits. Substitution by blood relation is not logically and legally acceptable particularly when such blood-relations closed the room of introduction of any other person by naming all culprits in the FIR. The reliance can safely be placed on the case of Zahoor Ahmed v. The State reported as 2007 SCMR 1519. Here it needs mentioning here that under fire-arm, even a blood relation, may be reluctant to come before the bullet therefore, mere non resistance by the complainant party to the assailants cannot be taken as a circumstance to disbelieve their claim of presence which, otherwise, is quite natural.
15. The medical evidence shows injuries on persons of the, deceased as:- "On external examination deceased Mst. Sikanderi was found sustaining following injuries:-
(1) A lacerated punctured type of wound measuring about 1 cm in diameter situated on right temporal region, margins inverted with blackening and charring present (wound of entry)
(2) A lacerated punctured wound measuring about 1-1/2 cm in diameter situated on back side of the neck, margins averted (wound of exit)"
Mst. Afroze
(1) A lacerated punctured type of wound measuring about 1 cm in diameter situated on front of the parietal region of the head margins inverted blackening and charring present (wound of entry)
(2) A lacerated punctured wound measuring about 1-1/2 cm in diameter situated on right occipital region of head, margins averted (wound of exit) Bleeding from nose'
Injuries on persons of both the above named deceased were described by the Medical Officer as:- "Injuries are ante mortem in nature and caused by discharge from fire-arm"
Since the medical evidence is always meant to corroborate the ocular account with regard to seat of injury, nature of injury and the kind of weapon, used in the occurrence, therefore, the injuries described by the medical officer support the ocular account with regard to claim of injuries to be result of fire-arm from a very short distance because injuries on persons of both deceased were found having 'blackening and charring' which could only come when the fire-shot is made from a very short distance.
16. There is another piece of evidence in shape of the recovery of the crime weapon i.e. .30 bore pistol from possession of the appellant at the time of his arrest, claimed to be made on 17-7-2009 i.e. After seven (7) days of the occurrence. Since the prosecution did not produce the roznamcha entries of departure and arrival under which the ASI was on patrolling when the appellant was arrested, therefore, a doubt creeps with regard to manner of recovery of crime weapon. However, since the status of the recovery of crime weapon in a criminal case is not at all material, as it can only serve as a piece of supporting evidence hence if case is, otherwise, proved recovery is not essential at all as laid in case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872).
17. Now, we would take up the 'motive' so pleaded by the prosecution as a cause of the unfortunate incident resulting into death of two ladies. It was claimed by prosecution that absconding accused namely Manzoor had asked complainant and P.W. Muhammad Ali to get divorce of Mst. Sakina from her husband Muhammad Umer and then to marry her with his son but they refused, thus, they were having grudge against them. The motive appears to be not logical because it is not the claim of the prosecution that absconding accused was interested in marriage of Mst. Sakina with his son prior to her marriage with Muhammad Umer. The relevant portions of the evidences of the P.W.
Complainant Mashooque and P.W. Muhammad Ali, being relevant for the issue, are reproduced here under:- P.W. Mashooque Ali "Mst. Sakina married with Muhammad Umer two years back to incident, after marriage she was residing with her husband and thereafter joined us when her relations with her husband became straint (strain), she was with us since 10/15 days of the incident"
P.W. Muhammad Ali "Mst. Sakina married to Muhammad Umer about 7/8 months back to incident, she after marriage was residing with her husband and then joined us, after some dispute with her husband, she came to our house one month back to incident"
The above portion shows that Mst. Sakina was happy with her husband till she joined complainant party which is either 10/15 days or a month therefore, there was no cause or reason for absconding accused to force complainant party to get divorce for Mst. Sakina. However, grievance of accused party should have been against the complainant party or husband of Mst. Sakina who were in their way but despite availability of complainant party they were not touched by accused persons but Mst. Sakina was murdered although strain relation of deceased with her husband should have been a hope for accused party towards divorce for Mst. Sakina, if set-up motive is believed. Thus, it appears that motive, so pleaded by the complainant party, was neither logical nor ever was proved. At this juncture, it would be germane to refer the case of Hasil Khan v. State 2012 SCMR 1936, wherein it is held as under: "(9) Both the courts i.e. The learned trial Court and the learned High Court having appreciated the evidence led have found the same to be credible and have concurrently rendered findings of guilt against the appellant. We do not find the said appreciation of evidence to be reflective of any misreading, non-reading or violative of law declared. 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 the 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 award the maximum sentence of death provided under section 302(b), P.P.C. 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 Ahmed 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."
(10) 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."
18. Thus, on this account conviction awarded by the trial Court is patently harsh as the complainant and eye-witnesses who claim to have been present on the crime scene were not attacked by the appellant, albeit motive has been attributed to them. This by itself is an extenuating circumstance, thus, judicial propriety demands that the death sentence awarded to the appellant can be converted to that of life imprisonment. Reference can be made to the case of Sabir Hussain alias Sabri v. The State 2013 SCMR 1554, wherein it is held as under: "(9) The contention of the learned counsel that the tube well was not mentioned in the site plan was explained by the Patwari P.W.6, who admitted in his deposition that there was a tube well which he did not mention in the site plan. The doctor was re-examined under section 540, Cr.P.C.
On an application by the prosecution, in which he admitted that he did examine the injured witness namely Saeed Ahmed. Leave was granted only on the ground of quantum of punishment and the complainant, who claims to have been present on the crime scene, was not attacked by the appellant whereas the motive has been attributed to him. This, by itself, is an extenuating circumstance on which we are of the view that the death sentence of the appellant can be reduced to that of life imprisonment.
(10) We, for the aforesaid reasons, partly allow this appeal. The conviction of the appellant under section 302, P.P.C. Is maintained, however, his sentence of death is commuted to that of life imprisonment. The appellant is extended benefit of section 382-B, Cr.P.C. The conviction and sentence of the appellant under section 324 is also maintained. All the sentences of imprisonment shall run concurrently. The amounts of compensation, awarded by the trial Court and upheld by the High Court, are maintained."
19. In view of what has been discussed above, we are of the considered view that it would meet the ends of justice to maintain the conviction awarded to the appellant but converting the death punishment into imprisonment for life. The appellant is also ordered to pay compensation of Rs.100,000 to legal heirs of both deceased separately as provided under section 544-A, Cr.P.C.
Accordingly, murder reference is replied in Negative, hence death sentence awarded to the appellant by the learned trial Court is not confirmed.
Accordingly, the appeal stands disposed of in above terms.