MALIK SHAHZAD AHMAD KHAN, J.---This judgment shall dispose of Criminal Appeal No,1321 of 2007 (Ali Raza and another v. The State) and Murder Reference No,558 of 2007, sent by the learned trial Court, for confirmation or otherwise, of the sentence of death awarded to Ali Raza appellant, as both these matters have emanated out of the same judgment dated 26-7-2007, passed by the learned Additional Sessions Judge, Faisalabad, in case F.I.R. No, 576/2006 dated 9-10-2006 under sections 302/324/34 of P.P.C. Police Station Garh, Faisalabad, whereby Ali Raza and Mst. Sakina appellants were convicted under sections 302/324/337-D/337-L(2), 337-F(vi)/34 of P.P.C. For committing the murder of Manzoor Ahmad (deceased) and for attempting to commit the murder and causing different injuries to Iftikhar Ahmad (P.W.7), Hamid Ali (P.W.8) and Ghulam Farid (P.W.6) and were awarded the following sentences:--
1. Ali Raza 302(b)/34 P.P.C. Death Punishment and to pay Rs, 50,000 as compensation under section 544-A of Cr.P.C. to the legal heirs of Manzoor Ahmad deceased and in default of payment thereof, to further undergo six months' S.I.
Mst. Sakina Bibi Under Section 302/34, P.P.CLife imprisonment and to pay Rs, 50,000 as compensation to the legal heirs of Manzoor Ahmad deceased under section 544-A, Cr.P.C. and in default of payment thereof to further undergo six' months' S.I.
2. Ali Raza 324/34, P.P.C Five years' R.I. and to pay a fine of Rs,5,000 and in default thereof to undergo one month's S.I.
Mst. Sakina Bibi do do
3. Ali Raza 337-L(ii)/34 P.P.C Two Year R.I. and to pay Rs. 10,000 as Daman to Iftikhar Ahmad Injured.
Mst. Sakina Bibi do do
4. Ali Raza 337-F(vi)/34 P.P.C Three years' R.I. and to pay Rs,5,000 as Daman to Iftikhar Ahmad injured.
Mst. Sakina Bibi do do
5. Ali Raza 337-D/34 P.P.C Five years' R.I. and to pay Arsh equal to 1/3rd of Diyat amount to Hamid Ali injured.
Mst. Sakina Bibi do do
6. Ali Raza 337-D/34 P.P.C Five years' R.I. and to pay Arsh equal to 1/3rd of Diyat amount to Ghulam Farid injured.
Mst Sakina Bibi do do In case of non-payment of Daman/Arsh, it was directed to be recovered from the convicts and until Daman/Arsh is paid in full to the extent of his/her liability, the convicts were ordered to be kept in jail and dealt with in the same manner as sentenced to simple imprisonment or may be released on bail if he/she furnishes security equal to the amount of Daman/Arsh to the satisfaction of amount of DaMan/Arsh to the satisfaction of the Court under section 337-Y, P.P.C. All the sentences were ordered to run concurrently.
2. Brief facts of the case as given by the complainant Ahmad Ali (P.W.9) in his written application (Exh.PJ) on the basis of which formal F.I.R. (Exh.PJ/1) was chalked out are that his sister Mst. Sakina Bibi (appellant) aged 15 years, was illiterate and used to go to the house of Altaf Hussain son of Hafiz Abdul Jabbar, Hanjra by caste, resident of the village, in order to learn tailoring from his daughter. During this period, All Raza (appellant) son of Altaf Hussain developed illicit relations with Mst. Sakina Bibi (appellant). On suspicion, the complainant party reprimanded Mst. Sakina Bibi (appellant) and asked her not go to the house of All Raza appellant, but she continued meeting with him, secretly. On the intervening night of 8/9-10-2006 at about 1-00 a.m. (night) he (complainant) woke up in order to answer the call of nature and found his sister missing from her cot. The complainant told this fact to his father (Manzoor Ahmad deceased), as well as, his brothers Hamid Ali (P.W.8) and Ghulam Farid (P.W.6). He also inquired from the house of his paternal uncle about his sister and told the entire facts to him. Having suspicion against Ali Raza (appellant), he along with his father Manzoor Ahmad (deceased), his brother HaMid Ali (P.W.8) and Iftikhar Ahmad (P.W.7) went to the cattle shed of Altaf Hussain to inquire about Mst. Sakina Bibi (appellant). The gate of the cattle shed of Altaf Hussain was opened from inside by his servant namely Murtaza Baloch. They, in the light of moon and bulb, saw Ali Raza and Mst. Sakina Bibi, appellants while committing zina with each other in the courtyard of the cattle shed. The father of the complainant namely Manzoor, Ahmed (deceased) reproached Mst. Sakina Bibi and asked her to go with them, whereas his brother Hamid Ali (P.W.8) and his paternal cousin Iftikhar Ahmad (P.W.7) stepped forward to catch hold of her, on which, Ali Raza appellant took out pistol which was lying underneath his pillow and raised lalkara that if any one would come forward, he will not be spared, then he made a straight fire with his pistol hitting Iftikhar Ahmad (P.W.7) at his right thigh.
He again made a straight fire hitting Hamid Ali (P.W.8) on the front of his chest at left -side. Having heard the report of firing, his brother Ghulam Farid (P.W.6), along with Noor Muhammad (given up P.W.) and Muhammad Sadiq (P.W.5) came to the place of occurrence. His father Manzoor Ahmad stepped forward to attend the injured persons. Ali Raza appellant then made two straight fire shots with his pistol hitting Manzoor Ahmad on the front of his chest at left side, who succumbed to the injuries at the spot. After a while Ali Raza and Mst. Sakina appellants raised lalkara that if any one would come forward, he will be done to death. Ali Raza appellant again made a straight fire shot hitting the brother of the complainant namely Ghulam Farid (P.W.6) at his chest. He, (complainant) and the other P.Ws. Attended his father and the injured persons and in the meanwhile both the accused persons (appellants) made their escape good while scaling over the wall on the back side of the, Ihata (tattle shed). On their hue and cry, other persons of the village were also attracted to the spot and with their assistance, the dead body of Manzoor Ahmad (deceased) and injured persons were taken to the Government Hospital, Kanjwani. It was further alleged that both the accused (appellants) committed 'Zina' with consent and also committed the above offences in furtherance of their common intention.
3. The appellant Ali Raza was arrested on 20-10-2006. On 29-10-2006 he led to the recovery of pistol .30-bore P-4, which was taken into possession vide recovery memo Exh.P.H. The appellant Mst. Sakina Bibi was arrested on 12-10-2006. After completion of investigation, the challan was prepared and submitted before the learned trial Court. She learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898, framed charge against the appellants on 2-2-2007 to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced 14 witnesses during the trial. Muhammad Sadiq (P.W.5), Ghulam Farid (P.W.6), Iftikhar Ahmad (P.W.7), Hamid Ali (P.W.8) and Ahmed Ali, complainant (P.W.9), were the witnesses of ocular account.
The medical evidence was furnished by Dr. Muhammad Afzal (P.W.3) and D. Muhammad Yousaf Mughal (P.W.13).
Muhammad Sadiq (P.W.5) and Ghulam Murtaza SI (P.W.14) are the recovery witnesses of pistol .30 bore (P-4), which was taken into possession on the pointation of Ali Raza appellant vide recovery memo. Exh.PH. She investigation of this case was conducted by Ghulam Murtaza SI (P.W.14).
Muhammad Abbas C/145 (P.W.1), Akbar Ali Nizami, Draftsman (P.W.2), Saeed Ahmed (P.W.4), Muhammad Yaqoob (P.W.10), Ghulam Qadir 1300/MHC (P.W.11). And Nazir Ahmad-C/2539 (P. W.12) are formal witnesses. The prosecution has produced documentary evidence in the shape of memo. Of possession of blood stained clothes Exh. PA, site plan Exh. PB, post mortem report Exh.PC, pictorial diagram Bxh.PC/1, death report Ex. PE, memo. Of possession of blood stained earth Exh.PF, memo of possession of empty bullets Exh.PG, memo. Of possession of pistol .30 bore Exh.PH, copy of complaint Exh.PJ, F.I.R. Exh.PJ/1, Medico-legal Report of Hamid Ali (P.W.8) Exh.PL and diagram Exh.PL/1, Medico-legal Report of Iftikhar Ahmad (P.W.7) Exh.PK and diagram Exh.PK/1, Medico-legal Report of Ghulam Farid (P.W.6) Exh. PM and diagram Exh.PM/1, site plan of the place of occurrence without scale Exh.PN, report of Chemical Examiner Exh.PQ, report of serologist Exh. PR, report of Forensic Science Laboratory Exh.PS and closed its evidence.
She statements of the appellants under section 342, Cr.P.C. Were recorded by the learned trial Court. While answering to a question "Why this case against you and why the P. Ws. Have deposed against you", the appellants replied as under:-- Ali Raza "All the P. Ws. Are not only related to each, but also inimical to me. They had come to kill me as their sister contracted marriage with me against their wishes.
Mst. Sakina Bibi:- "As my deceased father had promised to give my hand to Iftikhar P. W. And I contracted marriage with my co-accused Ali Raza and that I had refused to get divorce on the asking of the P. Ws. As well as my deceased father, they themselves killed my father and injured each other. They implicated me after fabrication of fake motive, which they could not set up unless I was implicated. So in order to support fake motive, they had deposed against me."
The appellants did not opt to make statements under section 340(2) of Cr.P.C., however, Ali Raza appellant produced evidence in his defence in the shape of Nikhanama as Exh.DC, birth certificate of Shakeela Bibi as Exh.DD, Nikahnama of Altaf Hussain son of Nazir Ahmad as Exh.DE and Nikahnama of Muhammad Iqbal son of Ghaus Muhammad as Exh.DF. She learned trial Court vide its judgment dated 26-7-2007, convicted the appellants and sentenced them as mentioned and detailed above.
5. Learned counsel for the appellants in support of this appeal, contends that story of the prosecution mentioned in the F.I.R., on the face of it is highly improbable and the reason assigned by the complainant and the eye-witnesses for going to the house of the complainant at night time at 1-00 a.m. Is without any justification; that in fact Mst. Sakina Bibi (appellant) married with Ali Raza appellant which is clear from the Nikahnama, certified copy whereof is available on the record as Exh.DC, therefore, reason given by the complainant party for going to the house of the appellants at midnight is improbable; that in the F.I.R. It was case of the complainant that he along with eye- witnesses went to the house of appellant Ali Raza and knocked the door which was opened by his servant Murtaza Baloch and they saw in the courtyard Mst. Sakina Bibi appellant was involved in fornication with Ali Raza appellant, but while appearing before the court he did not say so, rather introduced a different story by stating that when he was a few paces away from the Haveli, he heard the report of fire shots; that the complainant did not mention in the written application (Ex.PJ) that he knocked at the gate of Havaili which was opened by Murtaza Baloch but while appearing before the court, he stated so; that the appellants were alleged to have illicit relations with each other but no evidence has been produced in respect thereof; that the appellants have not been convicted or charged under section 10 of Zina (Enforcement of Hudood) Ordinance, 1979; that the appellants have taken a specific plea which appears to be more probable; that recovery of pistol with positive report of FSL is of no value as empties were allegedly recovered from the spot on 9-10-2006, the appellant Ali Raza was arrested on 20-10-2006 and empties were sent to the Forensic Science Laboratory on 21-10-2006; that so far as Mst. Sakina Bibi appellant is concerned, learned counsel for the appellants contends that no role was assigned to her and there is absolutely no evidence against her which could implicate her in the commission of offence; that the prosecution has miserably failed to prove its case against the appellants beyond shadow of doubt thus, this appeal be accepted and the appellants may be acquitted from the charges.
6. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant contends that both appellants are specifically named in the F.I.R. With specific roles; that in this case one life was lost and three persons were injured; that the injured were taken to the hospital and the matter was reported to the police within three hours, though place of occurrence is situated at a distance of 9 kms. And as such there is no delay in reporting the matter to the police; that the witnesses have no enmity to falsely depose against the appellants; that the plea taken by the appellants is vague in nature and does not fit in the circumstances of this case and the appellants have not produced any witness in support of their plea; that ocular account is fully supported by medical evidence available on record and is further corroborated by the recovery of pistol at the instance of appellant Ali Raza and positive report of FSL; that motive has also been proved in this case; that Nikahnama produced by the appellants is not a reliable document as no such plea was taken by the appellants during the course of investigation and no Nikah Khawan or Nikah Registrar has been examined to prove the same; that there is no mitigating circumstance in this case; that the sentences were rightly awarded to the appellants and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.
7. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance.
8. It would not be out of place to mention here that it is a case of two versions, i,e, one put forth by the prosecution in the form of ocular account furnished by Muhammad Sadiq (P.W.5), Ghulam Farid (P.W.6), Iftikhar Ahmad (P.W.7), Hamad Ali (P.W.8) and Ahmed Ali, complainant (P.W.9), whereas, the other has been brought on the record through the statements of appellants, recorded under section 342 of Cr.P.C. And suggestions put to the eye-witnesses during their cross- examination.
9. It is settled now by the Hon'ble Supreme Court of Pakistan in a number of judgments that it is the prosecution which is required to prove its case against the accused persons beyond any shadow of doubt and the defence version is to be taken into consideration after evaluating the prosecution evidence to find out whether the same inspires confidence or not? In this regard, we have been fortified by an illustrious pronouncement of the Hon'ble Supreme Court Pakistan in the case reported as Ashiq Hussain v. The State (PLD 1994 SC 879), wherein, at page 883, the learned apex Court of the country has been pleased to observe as under:-- "The proper and legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eyewitnesses and the probability of the story told by them, and then examine the statement of the accused under section 342 of Cr. P. C, statement under section 340(2) and the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should he convicted far that offence only. In case of contraventions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz. Is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably he true, even then the Court must accept his plea and acquit or convict him accordingly."
Therefore, following the principles settled by the Hon'ble Supreme Court of Pakistan in such like situation, we will, first, examine the case of the prosecution.
10. The occurrence in this case took place on the intervening night of 8/9-10-2006 at 1-00 a.m.
(night) in Chak No,543 G.B within the area of Police Station, Garh, District Faisalabad. The matter was reported to the police on the next morning i,e, 9-10-2006 at 3-35 a.m. By the complainant Ahmad Ali (P.W.9) through application Exh.PJ, on the basis whereof formal F.I.R. Exh.PJ/1 was registered at 4-15 a.m. She injured prosecution witnesses namely Ghulam Farid (P.W.6), Iftikhar Ahmad (P.W.7) and Hamid Ali (P.W.8) were initially taken to the Government Hospital Kanjwani, where, they were referred to the Allied Hospital, Faisalabad. She distance between the place of occurrence and police station is 9 kms. Considering the abovementioned facts, the place and time of occurrence and the distance of place of occurrence from the B police station, we are of the view that there is no delay in reporting the matter to the police.
11. First of all we will discuss the case of Mst. Sakina Bibi appellant. We have noted that Mst. Sakina Bibi has not been attributed any active role during the occurrence. Although, a joint lalkara was attributed to Mst. Sakina Bibi appellant and Ali Raza appellant in the F.I.R. (Exh.PJ/1), but said joint lalkara was raised when the occurrence was almost completed and thereafter only one fire shot was made by Ali Raza which landed on the chest of Ghulam Farid (P.W.6), but while appearing before the court none of the prosecution witnesses has stated that Mst. Sakina Bibi raised any lalkara during the occurrence. She has admittedly, not caused any injury to the deceased or any member of the complainant party. It is not the case of the prosecution that the appellants with premeditation launched any attack on the complainant party rather according to the prosecution's own case it was the complainant party who entered the house of Ali Raza appellant at midnight in search of Mst. Sakina Bibi appellant and when the complainant party tried to take Mst. Sakina Bibi appellant .With them, the co-accused Ali Raza (appellant) made fire shots on the deceased and other members of the complainant party, therefore, we are of the considered view that case of prosecution against Mst. Sakina Bibi appellant has not been proved beyond the shadow of doubt.
12. Now we will discuss the case of Ali Raza appellant. The ocular account of the prosecution regarding the role played by Ali Raza appellant during the occurrence was furnished by the complainant Ahmad Ali (P.W.9), Muhammad Sadiq (P.W.5), Ghulam Farid (P.W.6), Iftikhar Ahmad (P.W.7) and Haamid Ali (P.W.8). Out of the abovementioned eye-witnesses, Ghulam Farid (P.W.6), Iftikhar Ahmad (P.W.7) and Haamid Ali (P.W.8) are injured eye-witnesses of the occurrence. All the abovementioned eye-witnesses were cross-examined at length, but their testimonies could not he shaken during the process of cross-examination. They corroborated each other on all material aspects of the case. Their evidence is reliable and trust worthy.
13. She medical evidence of prosecution was furnished by Dr. Muhammad Afzal (P.W.3) and Dr. Muhammad Yousaf Mughal (P.W.13). On 9-10-2006 at 2-30 p.m. Dr. Muhammad Afzal, conducted post-mortem examination on the dead body of Manzoor Ahmad deceased and found the following injuries on his person:--
(1) 2 lacerated fire-arm wounds of entry 1.5 cm x 1.5 cm each and about 2 cm apart from each with inverted margins on the front of upper part of left chest, about 4 cm below the outer 1/3 of the left clavicle bone. Wounds were going deep in the chest.
(2) A lacerated fire-arm wound of exit 1.5 cm x 1.5 cm on the back of the middle of the left chest, medial to the left scapula bone. Wound margins were everted and wound was continuous with Injury No,1, and through and through, through the upper part of the left side of chest.
In his opinion, the cause of death was haemorrhage and shock because of injury No.1 which was sufficient to cause death in ordinary course of nature and the probable duration between injury and death was 2 to 5 minutes and the time that elapsed between death and post mortem was 8 to 20 hours. Dr. Muhammad Yousaf Mughal (P.W.13) on 9-10-2006 at 3-40 a.m., medically examined Iftikhar Ahmad (P.W.7) and found following injuries on his person:-- Iftikhar Ahmad I-A 2 fire-arm wounds of entry lacerated each measuring I-3/4 cm x I-3/4 cm, 1/2 cm separated from each other with inverted margins on right front upper thigh.
I-B A fire-arm lacerated wound of exit 3/4 cm x 3/4 cm with everted margins on the right back upper thigh.
(2) A tattooing mark in an area of 25 cm x 12 cm on right front and outer arm. Corresponding holes were present on Shalwar.
According to his opinion, injury No,2 was declared as 337-1,00, while injury No,1 was kept under observation for Radiologist and Surgeon report. The probable duration of injuries was fresh and the same were caused by firearm. On the same day i,e, 9-10-2006 at 2-30 p.m., he medically examined Haamid Ali (P.W.8) and found the following injuries on his person:- Haamid Ali I-A. A fire-arm wound of entry lacerated with inverted margins I-3/4 cm x I-3/4 cm on left front chest, (6 cm above and outer to left nipple, with tattoo mark in an area of 16 cm x 15 cm.
I-B. 1-B A fire-arm lacerated wound of exit 3/4 cm x 3/4 cm on left back chest middle part.
Corresponding holes were present on Qameez and Bunyan.
Injury No.1 was caused by firearm and was kept under observation for report of Radiologist and Surgeon. The probable duration of injury was about 3 to 9 hours.
On the same day (9-10-2006) at 6-10 a.m. He conducted medical examination on the person of Ghulam Farid (P.W.6) and noted following injuries on his person:- I-A firearm lacerated wound I-3/4 cm x I-3/4 cm with inverted margins 5 cm below of nipple.
I-B. A firearm lacerated wound of exit I-1/2 cm x 1 cm on back of injunction of chest and abdomen, left side 6 cm lateral to midline. Corresponding holes were present on Qameez and Bunyan.
In his opinion, the probable duration of injury was about 3 to 9 hours. She weapon used was firearm.
14. She above mentioned medical evidence has fully supported the ocular account furnished by the above mentioned eye-witnesses namely Ahmad Ali (P.W.9), Muhammad Sadiq (P.W.5), Ghulam Farid (P.W.6), Iftikhar Ahmad (P.W.7) and Haamid Ali (P.W.8). The time of occurrence, the seat of injuries, the kind of weapon used by the assailant as narrated by the abovementioned eye- witnesses has fully tallied with the aforementioned medical evidence.
15. She prosecution has also produced the evidence of recovery of Pistol (P-4) on the pointation of the appellant Ali Raza, which was taken into possession vide recovery memo. Exh.PH. We have noted that empties were secured from the spot on 9-10-2006, Ali Raza appellant was arrested in this case on 20-10-2006 and empties were sent to the Forensic Science Laboratory on 21-10-2006, meaning thereby that the empties were sent to the Forensic Science Laboratory after the arrest of the appellant Ali Raza, therefore, possibility cannot be ruled out that fake empties were prepared from the pistol allegedly recovered from the possession of appellant Ali Raza and the recovery of pistol (P-4) was fictitiously shown to be effected on 29-10-2006. We are, therefore, of the considered view that it is not safe to rely upon the alleged recovery of pistol (P-4) from the possession of appellant Ali Raza and positive report of Forensic Science Laboratory (Exh.PS).
16. In so far as the evidence of motive is concerned, it was alleged that Ali Raza (appellant) developed illicit relations with Mst. Sakina Bibi (appellant) and the complainant party stopped Mst.
Sakina Bibi (appellant) from visiting the house of Ali Raza (appellant), however, Mst. Sakina Bibi kept on visiting the house of Ali Raza (appellant), secretly. It was added that on the fateful night, the complainant party reached the Haveli of Ali Raza (appellant) where they admonished Mst. Sakina Bibi and tried to take her with them due to which the occurrence took place. We have noted that it was alleged by the complainant Ahmad Ali (P.W.9) in the F.I.R. (Exh.PJ/l) that when he along with Manzoor Ahmad deceased and other eye-witnesses of the occurrence entered the Haveli of Ali Raza (appellant) in search of Mst. Sakina Bibi, they saw that both the appellants were committing illicit intercourse with each other in the courtyard, but while appearing before the court the complainant Ahmad Ali (P.W.9) did not level the allegation of illicit intercourse against the appellants. On the other hand both the appellants took this plea that they had contracted Nikah with each. They also produced in their defence an attested copy of `Nikahnama' dated 11-8-2006 as Exh.DC. We have also noted that no medical evidence or report of the Chemical Examiner was produced by the prosecution to substantiate the allegation of above mentioned illicit relations between the appellants. Neither any charge was framed against the appellants under any provision of offence of Zina Enforcement of Hudood Ordinance nor they have been convicted for the same by the learned trial Court, therefore, we are of the view that motive as alleged by the prosecution has not been proved in this case.
17. Now coming to the plea of the appellant Ali Raza, we have noted that the appellant Ali Raza has taken .a specific stance in his statement under section 342 of Cr.P.C. She appellant while answering to question No,3 has replied as under:-- '"The version is not correct. In fact, the P. Ws. Had come there to kill me as I had contracted marriage with my co-accused Mst. Sakina Bibi against the wishes of the P. Ws. And the deceased, whereas the deceased and P. Ws. Wanted to marry her with Iftikhar P.W., a cousin of the complainant. Having been known about their marriage, they kept on pressurizing his co-accused Mst. Sakina to get divorce from me, but she refused. The P. Ws. And the deceased stabbed in her back and locked her in a room after hatching a conspiracy to eliminate me. They were armed with fire-arms and Iftikhar was in forefront. He raised lalkara to kill me and the P.Ws. Fired at me.
As I took shelter of Mangers, so remained unhurt. When he felt that they would kill him, he fired with his .32 bore licensed revolver hitting Iftikhar on his legs to prevent them. Haamid All was injured as a result of firing of rest of the P.Ws."
We have noted that the appellant Ali Raza did not bother to produce any witness in support of his above mentioned plea. So much so he himself did not appear in the witness box to make statement on oath in his defence as envisaged under section 340(2) of Cr.P.C. Although the appellant has stated that the complainant party while armed with firearm weapons launched an attack to kill him but surprisingly he or Mst. Sakina Bibi appellant did not receive a single scratch on their bodies during the occurrence. It is not probable that seven persons from complainant party while armed with firearm weapons would launch an attack on the appellants but neither Ali Raza appellant nor Mst. Sakina appellant would receive a single injury during the occurrence. We are, therefore, of the view that the appellant Ali Raza could not prove the plea taken by him.
18. We have disbelieved the evidence of prosecution qua the motive and recovery of pistol P-4 in this case. However, if the evidence of motive and recovery of pistol P-4 is excluded from consideration, even then there is sufficient incriminating evidence available on the record against the appellant Ali Raza to prove the case of prosecution against him. As discussed earlier, the prosecution case was fully proved through the evidence of eye-witnesses namely Ahmad Ali complainant (P.W.9), Muhammad Sadiq (P.W.5), Ghulam Farid (P.W.6), Iftikhar Ahmad (P.W.7) and Haamid Ali (P.W.8). She said eye-witnesses stood the test of lengthy cross-examination, but their evidence could not be shaken. Their evidence is quite natural, straightforward and confidence inspiring. She ocular account of the prosecution as given by the abovementioned eye-witnesses is fully supported by the medical evidence furnished Dr. Muhammad Afzal (P.W.3) and Dr. Muhammad Yousaf Mughal (P.W.13) as well as by the postmortem report of Manzoor Ahmad deceased (Exh.PC), pictorial diagram (Exh. PC/1), medico-legal reports of Ghulam Farid (P.W.6) Exh.
PM, Iftikhar Ahmad (P. W.7) Exh.PK and of Haamid Ali (P.W.8) Exh.PL, therefore, we hold that the prosecution has proved its case against the appellant Ali Raza beyond the shadow of any doubt.
19. Now coming to the quantum of sentence we have noted some mitigating circumstances in favour of appellant Ali Raza, firstly, the evidence of recovery of pistol (P-4) from the possession of Ali Raza appellant has been disbelieved by us for the reason mentioned in Para No.15 of this judgment, secondly the occurrence in this case took place without any premeditation. Even according to the prosecution case, the complainant party entered the house of Ali Raza appellant at midnight at 1-00 a.m. And when the complainant party tried to catch hold of Mst. Sakina Bibi (appellant) in order to take her with them, Ali Raza appellant took out his pistol and made fire shots at Manzoor Ahmad deceased and the other prosecution witnesses. It is, therefore; evident that the occurrence took place in the house of Ali Raza appellant at the spur of moment and thirdly the prosecution has alleged a specific motive in this case but has failed to prove the same. It is well recognized principle by now that accused is entitled for the benefit of, doubt as an extenuating circumstance while deciding his question of sentence, as well. In this regard we respectfully refer the case of Mir Muhammad alias Miro v. The State (2009 SCMR 1188) wherein Hon'ble Supreme Court has 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 parts of the Courts, as such ,decisions restrict the life and liberties of the people. Indeed the accused persons are I also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
In another case Ansar Ahmad Khan Barki v. The State and another (1993 SCMR 1660), Hon'ble Supreme Court of Pakistan has held 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. We are convinced that Ali Raza appellant in the peculiar circumstance of this case deserve benefit of doubt to the extent of his sentence one out of two provided under section 302(b) of P.P.C.
Moreover, it is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which had resulted into the death of Manzoor Ahmad deceased, therefore, in our view the death sentence awarded to the appellant is quite harsh. It has been held in number of judgments of the Hon'ble Supreme Court of Pakistan that if a specific motive has been alleged by. The prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of the accused. While treating it a case of mitigation, we have fortified our view by a judgment of the Hon'ble Supreme Court of Pakistan reported in the case of Ahmad Nawaz and another v. The State (2011 SCMR 593), wherein, at page 604, the Hon'ble apex Court of the country has been pleased to lay emphasis as under:-- "10. The recent trend of the courts with regard to the awarding of penalty is evident from several precedents. In the case of Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111), it was held that "This is settled law that provisions of sections 306 to 308, P.P.C. Attracts only in the cases of Qatl-iamd liable to Qisas under section 302(A), P.P.C. And not in the cases in which sentence for Qatl-i-amd has been awarded as. Tazir under section 302(b), P.P.C. The difference of punishment for Qatl-i-amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C. Respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in. Case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C. And exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-i-amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCMR 4), Faqir Ullah v.
Khalil-uz-Zaman (1999 SCMR 2203), Muhammad Akram v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 338)". The Court while maintaining the conviction under section 302(b), P.P.C. Awarded him sentence of life imprisonment under The same provision and also granted him the benefit of section 382-B, Cr. P. C. In Muhammad Riaz and another v. The State (2007 SCMR 1413) while considering the penalty for an act of commission of Qatl-i-amd it was observed that' "No doubt, normal penalty for an act of commission of Qatli-amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case."
(In Iftikhar Ahmad Khan v. Asghar Khan and another (2009 SCMR 502) it has been noted that:-)
"In other words, the law has conferred discretion upon the Court to withhold the penalty of death and to award the punishment of imprisonment for life, if the outlook of a particular case requires that course". (underlining, italic and bold supplied)."
20. In the light of above discussion, this appeal (Criminal Appeal No, 1321 of 2007) to the extent of Mst. Sakina Bibi appellant is accepted, the convictions and sentences awarded to Mst. Sakina Bibi appellant vide the impugned judgment dated 26-7-2007 passed by the learned Additional Sessions Judge, Faisalabad are hereby set aside and Mst. Sakina Bibi appellant is acquitted from the charges, by extending K her the benefit of doubt. She be released from the jail forthwith if not required in any other case. Any how, all the convictions and sentences of Ali Raza appellant as awarded by the learned trial Court through the abovementioned judgment are maintained but the sentence of death awarded to Ali Raza appellant under section 302(b), P.P.C. Is altered to imprisonment for life. The compensation awarded by the learned trial Court under section 544-A of Cr.P.C. And sentence in default thereof is maintained and upheld. All the sentences of the appellant Ali Raza shall run concurrently. The benefit of section 382(b) of Cr.P.C. Is also given to the appellant Ali Raza.
Consequently, with the abovesaid modification in the sentence of Ali Raza appellant, Criminal Appeal No,1321 of 2007 is hereby dismissed to the extent of Ali Raza appellant. Murder Reference No,558 of 2007 is answered in the negative and death sentence of Ali Raza appellant is not confirmed.