' Khalid Mahmood Malik, J.--By way of this appeal, judgment dated 15.06.2011, passed by learned Sessions Judge Bahawalnagar has been called in question, whereby Abdul Munaff was convicted in case FIR No, 15/2011, dated 13.01.2011, registered under Sections 302/34, PPC at Police Station, Saddar, Haroonabad and sentenced as under:-- Under Section 302(b). PPC "Sentenced to death. He is also ordered to pay Rs, 1,00,000/- (one lac rupees) as compensation under Section 544-A, Cr.P.C. To be given to the legal heirs of the deceased, in default whereof he is ordered to undergo six months SI."
2. Murder Reference No 33/2011 has been sent by the learned trial Court seeking confirmation of death sentence or otherwise awarded to Abdul Munaff appellant.
3. The facts of the case as narrated by Abdul Nabi, complainant, (PW-7) in his statement before trial Court and same statement is hereby reproduced for narration of the facts:- "My son namely Navid Ahmed deceased was a student of Dehranawala Science College. Few days prior to the occurrence, accused persons, present in the Court, quarreled with my son on account of boarding on a bus. The accused persons are vagabonds. The accused persons asked my son Navid 'Ahmad to board on the roof of the bus whereas my son and his ' companion wanted to board inside the bus. The accused threatened of dire consequences to my son Muhamad Navid and nephew Salah-ud- Din. On the day of occurrence i,e, 13.01.2011 at about 08.30 a.m., I along with Abdul Khaliq, Salah-ud-Din and Awais PWs along with others girls and boys were standing to board the bus. At 8.30 a.m. Bus arrived at the bus stop and Navid Ahmad tried to board inside the bus. In the meantime, Abdul Munaff, Muhammad Sayan, Muhammad Asghar Watoo and Usman Akram accused persons came down from the bus and soon after coming down from the bus, Usman Akram accused shouted a lalkara that Navid deceased should be fired at. Muhammad Sufyan and Muhammad Asghar Watoo accused, present in the Court, caught hold my son Navid Ahmad from his arms and Abdul Munaff accused present in the Court, made a straight fire on my son Navid Ahmad in order to kill him. Thereafter my son Navid Ahmad fell down on the ground. We tried to attend my son and in the meantime all the accused present in the Court fled away from the scene of occurrence with their weapons. We took Navid Ahmad in injured condition to the Civil Hospital. In the meantime when we reached in the hospital, police also reached there. The I.O. Prepared injury statement of my son Navid Ahmad and handed over the same to the Medical Officer of Civil Hospital Haroonabad for his medical examination and treatment and the Doctor started providing medical aid to my son Navid Ahmed and he also started his medical examination as well. After sometime, Doctor told us that Navid Ahmad has expired. I got drafted written application there in the hospital and submitted the same to the LO which is Ex:PA and the same bears my signature."
4. After completion of investigation, report under Section 173 of Cr.P.C. Was submitted before the learned trial Court and learned trial Court, after observing legal formalities, framed the charge against the appellant end, other accused (since acquitted) to which they pleaded not guilty and claimed trial. The prosecution evidence was summoned. In support of its version, prosecution examined as many as 11 witnesses i,e, Mushtaq Ahmed ASI (PW-1), Muhammad Asif Sadiq 523/C (PW-2), Muhammad Ashraf 1138/C (PW-3), Zulfiqar Ali CMO THQ Hospital Haroonabad (PW-4), Shahid Pervaiz 1061/C(PW-5), Shahid Javed draftsmant (PW-6), Abdul Nabi, complainant (PW-7), Abdul Khaliq (PW-8), Salah-ud-Din (PW-9), Muhammad Anwar S.I/1.0(PW-10) and. Aqeel Ahmad 624/C (Petitioner W-11). Learned Prosecutor has closed, prosecution evidence after tendering report of Chemical Examiner regarding blood stained earth (Ex:PJ), report of Serologist (Ex:PK) and report of Forensic Science Laboratory (Ex:PL). Thereafter the appellant/convict along with other co- accused were examined under Section 342, Cr.P.C, and the entire evidence produced by the prosecution has put to them in shape of question, which the termed as incorrect. In reply to a question that why this case against him and why PWs have deposed against him, the appellant Abdul Munaff replied as under: "The PWs are closely related to the deceased and highly inimical towards me and co-accused.
They have involved me and my co-accused falsely in connivance with the local police."
' Appellant did not opt to make his statement under Section 340(2), Cr.P.C. And to produce defence evidence. However, in reply to a question that have you anything else to say, the appellant Abdul Munaff replied as under: "I am innocent. Infect Navid Ahmed deceased had a group of will reputed college students who used to tease the girls who used to come from Dehranawala from different chaks and after college hours used to go back to their native towns. The Adda In charge of Dehranawala Bus Stand as well as the drivers and conductors of the buses, in order to protect the chesty of the girls, have decided, that the boys should sit on the roof of the buses and whereas the girls should sit inside the buses and this decision was also agreed by the student union as well as the different groups of the students. On the day of occurrence, Navid Ahmad deceased and his companions, in violation of the above said decision, tried to board inside the bus forcibly and the boys sitting on the top of the roof came down and forbade Navid deceased and his companions to behave good character and to board on the roof of the bus instead of inside the bus with the girls by force. As a result of that a fight/cross firing took place in between the deceased and his companions as well as the students already present on the roof of the bus and a fire hit Navid Ahmad deceased and no one known whose fire hit him. The complainant Abdul Nabi, his brother Abdul Khaliq and Salah-ud-Din PWs were not present at the time and place of occurrence and they did not witness the occurrence.
Infact one Dr. Muhammad Iqbal who was incidentally passing from bus stand of Chak No, 38/3-R at the time of occurrence, seeing Navid Ahmad deceased the then in injured condition, and he put him in his jeep in order to take, him to Civil Hospital Haroonabad. He also informed the I.O. Anwar SI in this respect and asked him to reach in the hospital, where the medical officer provided him first aid and in the meantime I.O. Also reached there and he prepared his injury statement and handed over to the doctor, and sometime thereafter Navid Ahmad deceased expired. The complainant Abdul Nabi and the other PWs reached in the hospital after receiving the information of the occurrence when Navid Ahmad deceased had already expired. Abdul Nabi complainant after preliminary investigation, due deliberation and consultation prepared false story of the occurrence, given in Ex:PA and presented written application to the I.O., on the basis of which formal FIR was registered. Fake recovery of pistol .30 bore was planted against me by the I.O. In connivance with the complainant party, who provided him pistol P-7 on the very first day in the evening, who prepared crime empty from the same and later on planted the above-said pistol against me in order to strengthen the prosecution case in connivance with the complainant party and no body from the place of recovery has supported the above-said recovery except Abdul Khaliq the real brother of the complainant who is not resident of the place of recovery. I have been involved in this case due to student politics and grouping in the college union mere on suspicion being the President of college union by the complainant party in connivance of the local police who have made me scapegoat."
5. Learned counsel for appellant has argued that prosecution has failed to establish its case beyond any shadow of doubt as the statements of eye-witnesses do not inspire confidence; that there are material contradictions between the testimonies of eye-witnesses on material points which cannot be relied upon in the case of capital punishment; that fake recovery of pistol .30 bore (P-7) has been planted against the appellant; that learned trial Court has disbelieved the evidence of eye-witnesses to the extent of Muhammad Sufyan, Muhammad Asghar and Usman Akram accused, who have been acquitted in this case; that learned trial Court has not appreciated the evidence in its true perspective and harsh plenty of death has been imposed, which is not warranted by law. Lastly he has prayed that appeal in hand be accepted and appellant be acquitted of the charge.
6. Conversely, learned D.P.G assisted by learned counsel for complainant has maintained that prosecution has succeeded in proving the guilt of appellant through cogent and confidence inspiring evidence in shape of motive, ocular account, medical evidence, recovery of weapon, therefore, appeal deserves dismissal.
7. We have heard the learned counsel for parties and with their assistance have scanned the evidence available on record.
8. The prosecution in order to prove its case has relied on ocular account furnished by Abdul Nabi complainant (PW-7), Abdul Khaliq (PW-8) and Salah-ud-Din (PW-9) in addition to motive, recovery of pistol(P-7) on pointation of appellant and medical evidence. The unfortunate occurrence has taken place on 13.01.2011, at about 8.30 a.m. (morning) and matter was reported to police on the same day at 9.45 a.m. (morning). The distance between place of occurrence and the Police Station is about 8.00 K.M. F.I.R was lodged in natural way and all necessary details of the occurrence duly mentioned. The unfortunate murder occurrence is day light and which rules out any chance of false implication and misidentification of the accused/ appellant particularly when the complainant is real father of deceased while other eye-witnesses Abdul Khaliq (PW-8) is real uncle and Salahud-Din (PW-9) is cousin of deceased. Substitution is a rare phenomenon, because even the interested witnesses would not normally allow real culprit for the murder of their relatives let off by involving innocent persons. Reliance is placed upon case law titled "Khalid Saifullah vs. The State" (2008 SCM R 688) and "Zahoor Ahmad vs. The State" (2007 SCM R 1519), Abdul Nabi (PW- 7) complainant while appearing in the witness box has reiterated the facts as described in the F.I.R, which has already been narrated in earlier part of the judgment. Abdul Khaliq (PW-7) and Salah- udDin(PW-7), eye-witnesses also supported the prosecution version. Theis no ground to discard evidence of witnesses particularly when they have no enmity or malice against the appellant/accused. Reliance is placed upon "Haji vs. The State "(2010 SCM R 650) where it has been held by the apex Supreme Court of Pakistan that Minor variations in their evidence are insignificant, having no material effect on the incriminating nature of their testimonies which get due corroboration from the medical evidence. Both the ocular witnesses undoubtedly are inter see related and to the deceased but their relationship ipso facto would not reflect adversely against the veracity of the evidence of these witnesses in the absence of any motive wanting in the case, to falsely involve the appellant with the commission of offence.
9. No-doubt learned trial Court has disbelieved the evidence of eye-witnesses to the extent of accused Muhammad Sufyan,Muhammad Asghar and Usman Akram but it is settled law by now that the maxim "falsus in uno falsus in omnibus"has no universal application and it bounden duty of the Court to sift the grain from the chaff. Reliance is placed on case titled "Elahi Bakhsh vs. Rabnawaz and another" (2002 SCM R 1842) in which august Supreme Court of Pakistan has observed as under:-- "It" is well settled by now that the maxim "falsus in uno falsusin omnibus"has no universal application and it is bounden duty of the Court to sift the grain from the chaff. In this regard reference can be made to Khairu and another vs. The State (1981 SCM R 1136). A thorough scrutiny of the entire evidence would reveal that the statements of prosecution witnesses are consistent, confidence inspiring and in consonance with the probability in the case and fitted in with other evidence and circumstances of the case and being worthy of credence could not have been brushed aside. The prosecution, in our considered opinion has substantiated the allegation beyond shadow of doubt and accordingly Criminal Petition for Leave to Appeal (108/2001) being devoid of merit is dismissed."
10. The statements of eye-witnesses further support with medical evidence furnished by Dr. Zulfiqar Ali CMO (PW-4). Pistol (P7) was recovered on pointation of appellant, which was sent with empty, seized from the spot by the Investigating Officer for comparison ' to the Forensic Science Laboratory. According to the report of Forensic Science Laboratory (Ex: PL), empty matched with the weapon of crime i,e, pistol .30 bore (P-7). Report of Forensic Science Laboratory (Ex:PL) usually evaluated as authentic piece of evidence.
11. In support of his defence, appellant did not opt to appear under Section 340(2) of Cr.P.C. And also did not produce any defence evidence. It is settled principle of law of evidence that mere suggestions from the defence side put to the PWs during cross-examination and categorically denied have no evidentiary value unless corroborated by independent evidence produced from the defence side. In view of above discussed facts, appellant has failed to establish his defence as alleged in his statement under Section 342, Cr.P.C.
12. The motive behind the occurrence as alleged by complainant in FIR (Ex:PA/1) was that few days prior to occurrence, accused persons quarreled with Naved Ahmad (deceased) son of complainant regarding boarding in bus. The accused persons threatened Naved Ahmad (deceased) that they will soon see them, in consequence accused persons with common intention attacked upon son of complainant and murdered him. To prove the motive, complainant Abdul Nabi (PW-7) appeared and deposed that few days prior to the occurrence, accused persons, present in , the Court, quarreled with his son on account of boarding on a bus. In cross- examination Abdul Nabi, complainant (PW-7) stated that at the time when the dispute took place, he was not present nor his brother Abdul Khaliq (PW-8) was present there. While Abdul Khaliq (PW- 8) and Salah-ud-Din (PW-9) deposed that on the day of occurrence, they along with complainant were present at bus stop of Chak No 3813-R for boarding in a bus. At that time, accused persons present in the Court came down from the bus. Usman Akram accused raised lalkara to kill Naved Ahmad (deceased). Sufyan and Asghar accuse caught hold Naved Ahmad from his arms and Abdul Munaff accused fired at Naved Ahmad (deceased), who fell down on the ground. Both PWs did not utter any word about earlier quarrel taken place between deceased and accused persons as alleged in F.I.R. (Ex:PA/1). PWs have also not stated when and what time earlier occurrence took place and how PWs came to know about the said quarrel. No report with regard to previous quarrel was lodged by the deceased or his other family members. Investigating Officer also did not investigate about previous quarrel of deceased with accused. Thus learned trial Court has rightly held that prosecution has failed to prove the alleged motive mentioned in F.I.R.
13. Coming to the quantum of sentence, we have noted some mitigating circumstances in this case. Firstly learned trial Court and we have disbelieved the motive with the reasons mentioned in Para 10 of the judgment. It is not determinable in this case as to what the real cause of occurrence was and as to what actually has happened immediately before the occurrence which resulted into the present unfortunate incident. Secondly single fire-arm injury is attributed to the appellant.
Thirdly co-accused of appellant namely Muhammad Sufyan, Muhammad 'Asghar and Usman Akram have been acquitted and no appeal has been filed by the prosecution against their acquittal. Therefore, in our view sentence awarded to appellant Abdul Munaff is quite harsh.
Reliance is placed on case titled "Ghulam Mohy-ud-Din us. The State" (2014 SCM R 1034), in which august Supreme Court of Pakistan has observed as under: "A single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment. No clear guideline, in this regard can be laid down because facts and circumstances of one case differ from the other, however, it becomes the essential obligation of the Judge in awarding one or the other sentence to apply his judicial mind with a deep thought to the facts of a particular case. If the Judge/Judges entertain some doubt, albeit not sufficient for acquittal, judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows. So it is better to respect the human life, as far as possible, rather to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed."
' It is also held by the Hon'ble Supreme Court of Pakistan in case law titled "Muhammad Tahir Khan u. The State" (1983 SCM R 1169) that "The prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death. This view is followed by apex Court in case law titled "Ansar Ahmad Khan Barki us. The State and another" (1993 SCM R 1660).
14. We are, therefore, convinced that Abdul Munaff, appellant, in the peculiar circumstances of this case deserves benefit of doubt to the extent of his sentence one out of two provided under Section 302(b) of PPC, so the death sentence imposed upon Abdul Munaff appellant by the learned trial Court is not confirmed and the same is commuted to imprisonment for life. However, remaining sentence to the extent of compensation awarded to appellant by the learned trial Court is maintained. All the sentences shall run concurrently. Benefit of Section 382-B of Cr. P.C, is extended to Abdul Munaff, appellant. With the above-said modification of the sentence of appellant Abdul Munaff, this appeal having no merits is hereby dismissed. Accordingly, the death sentence awarded to appellant Abdul Munaff is not confirmed and Murder Reference No, 33/2011 is answered in negative.