Muhammad Tariq Abbasi, J.--This judgment shall decide the above captioned matters, being result of the judgment dated 22.7.2009 passed by the learned Additional Sessions Judge, Muzaffargarh, whereby Ahmad Din (appellant in Criminal Appeal No, 390/2010) was convicted under Section 302(b), PPC for commission of 'Qatal-e-Amd' of Abdul Latif and sentenced to death, with compensation of Rs,2,00,000/-, payable to the legal heirs of the deceased, failing which, to further undergo simple imprisonment for six months.
2. The precise facts are that Muhammad Siddique(complainant) had made the statement/Fard Bian' (Ex.PA/1), which resulted into registration of the FIR (Ex.PA), with the contention that on 12.3.2006, at about 9.00 a.m., he along with his brother Abdul Latif(deceased) was available in the house, when M/s. Ahmad Din(appellant/convict) and Yasin (co-accused since acquitted) startedding the earth from their land (complainant party) and taking it to their (accused party) house, who were abstained by him and the deceased; after sometime, the above named again started digging and lifting the earth, whereupon Abdul Latif (deceased) again abstained hem; after a short while, Abdul Latif (deceased) cried (bachau bachau) and the complainant saw that Ahmad Din (appellant/convict) while med with a pistol 30 bore and Yasin (co-accused since acquitted), having an iron rod were running behind the deceased, to beat him; hue and cry attracted Saeed Ahmad (PW-7) and Sadiq Hussain (given up W), who ran to save Abdul Latif (deceased); the deceased when reached near the house of Hafiz Rab Nawaz and called him to save him, but in the meanwhile, Ahmad Din (appellant/convict), reached ere and made two fires with his pistol, which landed at the chest of Abdul Latif and he fell down; Ahmad Din (appellant/convict) fired four there successive shots, which hit at left side and arm of Abdul Latif deceased); Yasin (accused since acquitted) inflicted iron rod blows at right arm and different parts of the body or the deceased; the complainant and the prosecution witnesses when stepped forward, they were threatened by the accused, hence did not go near; Abdul Latif succumbed to the injuries at the spot and the accused fled away. The motive as alleged by the complainant was forbidding the accused from lifting earth from the land of the deceased.
3. The matter was investigated, the appellant/convict as well as his above named co-accused were found to be involved, hence challaned to the Court. The pre-trial proceedings were carried on and the appellant/convict and his co-accused (since acquitted) were charge sheeted on 10.2.2007. They pleaded not guilty and claimed the trial, hence the prosecution evidence was summoned and recorded.
4. The prosecution had got examined as many as 10 witnesses. The gist of evidence, led by the important/material witnesses is as under:-
(i) PW-2 Muhammad Siddique, complainant as well as an eye-witness of the alleged occurrence had narrated almost the same facts as were stated by him in his Fard Bian' (Ex.PA/1). He had also attested memo. (Ex.PE), through which the empties collected by the Investigating Officer from the spot were taken into possession. In his presence, the appellant/convict had made disclosure and then led to the recovery of .30 bore pistol, which was secured by the I.O. Through memo. (Ex.PB), attested by him.
(ii) PW-4 Muhammad Hussain, ASI, on 12.3.2006 had kept a sealed parcel containing five empties, in the. Malkhana, then handed over it to Muhammad Mohsin, Head Constable (PW-5) on 12.5.2006 for its onward transmission to the office of Forensic Science Laboratory, Lahore.
(iii) PW-5 Muhammad Mohsin, Head Constable had transmitted a sealed parcel allegedly containing the empties from the Police Station to the office of Forensic Science Laboratory, Lahore on 12.5.2006.
(iv) PW-6 Altaf Hussain. Constable had transmitted a sealed parcel allegedly containing the pistol, from the Police Station to the office of Forensic Science Laboratory, Lahore on 3.8.2006.
(v) PW-7, Ahmad Saeed, air alleged eye-witness of the occurrence, during statement in the Court had stated and corroborated version of Muhammad Siddique (complainant/PW-2) in all its four corners. He had also attested the memo. (Ex.PE), through which the I.O. Had taken five empties into possession and the memo. (Ex.PD), through which last worn clothes of the deceased were secured by the I.O.
(vi) PW-9, Ghulam Hussain, Sub-Inspector had recorded the statement (Ex.PA) of the complainant (P W-2) and also carried on the investigation, during which, inspected the dead body and prepared injury statement (Ex.PG) and inquest report (Ex.PH); got conducted the post-mortem examination of the deceased; prepared the rough site-plan of the spot (Ex.PJ); collected five empties (P-1 to P-5) from the spot and secured them through recovery memo. (Ex.PE); took into possession the last worn clothes through memo. (Ex.PD), arrested Ahmad Din (appellant/convict) on 26.3.2006; took into possession .30 bore pistol (P-4), which was got recovered by the above named appellant/convict on 29.3.2006, through memo. (Ex.PB).
(vii) PW-10, Dr. Muhammad Rafique had conducted the post-mortem examination of the dead body of Abdul Latif (deceased) on 12.3.2006 vide report (Ex.PL) and the diagrams (Ex.PL/1). During the said examination, the following injuries were found on the dead body:-
(a) A lacerated wound 1, cm x 1 cm on left arm outer side near elbow, margins inverted and black.
(b) A lacerated wound 1 cm x 1 cm on left arm outer side below the Injury No,
1. Margins inverted.
(c) A lacerated wound 3 cm x 2 cm on inner side of left arm near Injury No,
5. Margins averted (outlet).
(d) A lacerated wound 1 cm x 1 cm (two in number) on front of chest below nipples. Margins inverted and black (inlet).
(e) A lacerated wound 2 cm x 2 cm on chest left side below nipple margins inverted and black (inlet) corresponding marks of aperture were present. Thoracic and abdominal cavity were full of liquid blood.
(f) A lacerated wound 5 cm x 3 cm x skin deep on right foot near heel outsider.
The cause of death recorded by the doctor, was the result of above mentioned injuries, which were anti-mortem in nature and sufficient to cause death in ordinary course of nature and that the time between the injuries and death was immediate.
5. After examination of all the prosecution witnesses, report given by the Forensic Science Laboratory, Lahore was tendered in evidence as Ex.PM and case for the prosecution was got closed, where after the appellant/convict was examined as required under Section 342 Cr.PC, during which the questions emerging from the prosecution evidence were put to him, but he denied almost all such questions, while pleading his innocence and false involvement, in the case with mala fides.
The question "Why this case against you and why the PWs have deposed against you?", was replied by the appellant/convict in the following terms: "Deceased Abdul Latif was our "Behnoi". We had suspicion of illicit liaison of our sister Mst. Amir Mai with brother of Muhammad Siddique complainant due to which brother of the deceased shifted his residence to Multan. Out "Behnoi" had enmities with other persons of the locality and he was murdered by some unknown persons. The occurrence was not witnessed by anyone and blind one.
We had no enmity with our "Behnoi". We have been false involved in this case due to previous enmity and have been made scapegoat. PW-2 Muhammad Siddique and PW-7 Ahmad Saeed being related with the deceased and inter se have deposed falsely."
6. The appellant/convict did not opt to lead any evidence in his defence or make statement under Section 340(2) Cr.PC. On completion of the trial, the learned trial Court had passed the impugned judgment, in the above mentioned terms. Consequently the Appeal and the Murder Reference in hand.
7. The learned counsel for the appellant has argued that the appellant is innocent and falsely roped, in the case, with mala fides, while concocting a false and frivolous story; neither the complainant (PW-2) nor Ahmad Saeed (PW-7) were available at the spot or had witnessed any occurrence and both with mala fides were introduced at subsequent stage; both the above named were chance witnesses, hence not believable; the above named witnesses were related inter se as well as the deceased, hence their statements were not credible; the alleged recoveries were not proved/established, hence not believable; the statements of the eye-witnesses were full of material contradictions, but erroneously not considered by the learned trial Court; the prosecution case as well as the charge was not proved and established hence the appellant was entitled for acquittal and as such the impugned judgment is not sustainable in the eye of law.
8. Learned Deputy Prosecutor General has vehemently opposed the appeal, while supporting the impugned judgment to be quite justified.
9. Arguments of the learned counsel for the appellant as well as the learned Deputy Prosecutor General have been heard and the record has been perused.
10. Muhammad Siddique, complainant (PW-2) and Ahmad Saeed (PW-7) had categorically deposed that in their presence and within their view, Abdul Latif was done to death, by Ahmad Din (appellant/convict), by firing with a pistol and that on receipt of the injuries, the deceased died at the spot. The above mentioned contention of the above named witnesses has been supported by the statement of the doctor (PW-10), the post-mortem report (Ex.PL) and that the diagram report; (Ex.PL/1) as five fire shot injuries on the dead body were observed and that on receipt of the injuries, the death was instant.
11. The above mentioned version of the above named witnesses was corroborative, concurrent and confidence inspiring. The defence despite lengthy cross-examination had failed to contradict the above said version or bring on the record, any other material favourable to the appellant/convict.
12. It was a day light occurrence. The matter was reported to the Police immediately. The appellant/convict was nominated to be the person, who had fired and caused death of Abdul Latif.
The prosecution witnesses had satisfactorily explained their presence and availability at the spot.
Saeed Ahmad (PW-7) was resident of vicinity, whereas Muhammad Siddique (PW-2) had justifiably explained his presence at the spot that he had come at the house of his brother (deceased). The contentions made by the learned counsel for the appellant/convict that the above said witnesses were chance witnesses, is nothing, but a bald assertion. Although the above said witnesses are related inter se as well as with the deceased, but their no enmity or grudge with the appellant/convict could be established on the record, hence their mere relationship is not sufficient to discard their testimony, which otherwise is confidence inspiring. Our above mentioned view is fortified by the case of "Haji us. The State (2010 SCMR 65W, wherein the Hon'ble Supreme Court of Pakistan has observed as under: "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 absence of any motive wanting in the case, to falsely involve the appellant with the commission of the offence and there is nothing in their evidence to suggest that they were inimical towards the appellant and mere inter se relationship as above noted would not be a reason to discard their evidence which otherwise in our considered opinion is confidence-inspiring for the purpose of conviction of the appellant on the capital charge being natural and reliable witnesses of the incident."
13. In 'Fard Bian' (Ex.PA/1), the FIR (Ex.PA) as well as in the statement, Muhammad Siddique had narrated the dispute to be digging and lifting of earth by the appellant/convict, from the land belonging to the deceased and that when the appellant/convict was forbidden from the said activity, the deceased was done to death. During cross-examination, the complainant deposed that the deceased did not tell him about any dispute with the appellant, and that before the occurrence, there was no dispute of any nature between the deceased and the appellant. The complainant had further contended that when he along with his brother (deceased) went to forbid the appellant/convict from digging of the earth, no exchange of hot words was taken place.
Ahmad Saeed (PW-7) contended that at the time of quarrel/digging of soil, he was not available there. Murid Mussain Patwari (PW-8), who had inspected the spot and drafted scaled site-plans, had contended that during the spot inspection, no ditch or any sign towards digging or lifting of the earth was noticed by him. The same was the contention of the I.O. (PW-9) that during the spot inspection, no sign towards digging or lifting of the earth was found.
14. All the above mentioned facts and circumstances, lead to the conclusion that the alleged motive was not proved and established and is yet shrouded into mysteries. It is pertinent to mention here that even the learned trial Court had failed to discuss the alleged motive, in the impugned judgment. Failure of the prosecution to prove the motive may result in reduction of sentence of death to that of imprisonment for life. Reliance in this respect may be placed upon the judgment reported as "Muhammad Imran @ Asif versus The State" (2013 SCM R 782) and "Naveed alias Needu and others versus The State and others" (2014 SCM R 1464), the relevant portion whereof reads as under: "Upon our own assessm ent of the evidence available on the record we have felt no hesitation in concluding that the specific motive set up by the prosecution had indeed remained for from being established on the record. The law recently declared by this. Court in the cases of Ahmed Nawaz and another v. The State (2011 SCM R 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCM R 1165) and Muhammad Mumtaz and another v. The State and another (2012 SCM R 267) reiterates the settled and longstanding principle that failure of the prosecution to prove the motive set up by it may have a bearing upon the question of sentence and in an appropriate case such failure may result in reduction of a sentence of death to that of imprisonment for life for safe administration of justice."
15. It has been observed that empties from the spot were allegedly collected on 12.03.2006, the appellant/convict was arrested on 26.3.2006 and recovery of pistol from him was effected on 29.3.2006, but the empties were sent to the laboratory on 12.5.2006, meaning thereby that the empties and the pistol remained in the Police Station for a considerable long time and the empties were dispatched to the laboratory after about 1 months of recovery of the pistol. No explanation or justification of the above mentioned alarming lapse committed by the prosecution has been brought on the record. The said reason has made the report of the Forensic Science laboratory, Lahore regarding matching of the empties with the pistol recovered from the appellant/convict, has made of no consequence. Reliance in this regard may be placed upon the judgments reported as "Ali Sher and others versus The State" (2008 SCM R 707) and "Nazer Abbas versus The State" (2013 YLR 2748).
16. For what has been discussed above, we are of the view that the impugned judgment towards conviction of Ahmad Din (appellant) is quite justified and call of the day, but in the light of the non- establishment of the alleged motive and the above mentioned status of the report of the Forensic Science Laboratory, Lahore (Ex.PM), the quantum of sentence needs consideration being harsh. It is well settled principle, by now that accused is entitled for benefit of doubt as an extenuating circumstance while dealing his question of sentence as well. In this regard, reference may be made to the case of "Mir Muhammad alias Miro vs. The State" (2009 SCM R 1188), wherein the Hon'ble Supreme Court of Pakistan had 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."
17. Consequently, the conviction of Ahmad Din (appellant) under Section 302(b), PPC awarded by the learned trial Court through the impugned judgment is maintained, but his sentence is converted from death to imprisonment for life. The amount of compensation awarded by the learned trial Court and the sentence for its default is maintained. The appellant shall be entitled for the benefit of Section 382-B of Cr.PC.
18. In view of the foregoing discussion, with the above mentioned modification, in the sentence of the appellant,Criminal Appeal No, 390 of 2010 is dismissed. Murder Reference No, 98/2009 is answered in negative and death sentence of the appellant is not confirmed.