' SADAQAT ALI KHAN, J.---This single judgment shall dispose of Criminal Appeal No, 468 of 2010 filed by Atta Muhammad present appellant and Murder Reference No, 01 of 2011 sent by the trial court for confirmation of the death sentence of appellant Atta Muhammad or otherwise as both matters have arisen out of the same judgment dated 20-12-2010 passed by learned Additional Sessions Judge, Liaquatpur District Rahimyar Khan according to which the present appellant was convicted and sentenced as under:- "Atta Muhammad was convicted under section 302(b), P.P. C. And sentenced to death for committing Qatl-i-Amd of Mst. Hafeezan Bibi deceased along with payment of compensation Rs,5,00,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. ' whereas his co-accused namely Peer Baldish and Muhammad Khalid were acquitted by the learned trial court in case FIR No, 52 dated 6-11-2007 under section 302/34, P.P.C. Police Station, Shedani Tehsil Liaquatpur District Rahimyar Khan.
2. The facts of the case have been stated by Rafique Ahmed complainant (P.W.3) in his statement before the trial court and same statement is hereby reproduced for narration of the facts:- "About 10 years before the occurrence, my sister Haeezan Bibi was married with Arta Muhammad accused, whereas the marriage of ' sister of accused Atta Muhammad namely Shahida Bibi was solemnized with my brother Muhammad Siddique. About five years prior to the occurrence, the atrial relations between my sister and Atta Muhammad accused became strained and Atta Muhammad accused. Divorced my sister. After the divorce, Hafeeza Bibi deceased used to live with me. Sister of Atta Muhammad, Shahida Bibi is living with her husband happily. About 1-1 /2 year prior to the occurrence, accused Atta Muhammad again demanded the hand of Sharifan Bibi whereas we refused. On 6-11-2007 at about 8:00 a.m. My sisters were picking the cotton crop in the field. The picking party consisted of Hafeeza. Bibi, Sughran Bibi wife of Muhammad Ramzan, Sonnan Bibi wife of Ghulam Yasin. I was also standing near the cotton field. In the meanwhile, accused Atta Muhammad present in the Court armed with repeater 12 bore accused Muhammad Khalid present in court armed with pistol, Peer Bakhsh son of Murad was empty hand appeared at the spot. Accused Atta Muhammad made a straight fire on my sister Hafeeza Bibi. The fire was missed. The accused Atta Muhammad repeated the fire which hit on the back of Hafeeza Bibi, who fell down on the ground due to injuries. The accused persons Peer Bakhsh and Muhammad Khalid overpowered me. On my hue and cry, P. Ws. Muhammad Sadiq and Muhammad Ramzan came at the place of occurrence, who witnessed the occurrence with their eyes. Muhammad Khalid present in the court made firing in the air. On seeing the P.Ws., the accused persons fled away while threatening the P. Ws. For dire consequences. The accused persons with their common intention killed my sister Hafeeza Bibi without any reason".
3. After registration of the case, investigation started and on completion of the investigation report under section 173, Cr.P.C. Was submitted in the trial court.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 28-3-2008 against present appellant Atta Muhammad and his co-accused under sections 302/34, P.P.C. To which he pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Allah Nawaz P.W.1, Mangat Ali Constable P.W.2, Rafique Ahmed complainant P.W.3, Muhammad Sadiq P.W.4, Muhammad Khalid Constable P.W.5, Lady Doctor Saeeda Shamim WMO P.W.6, Niaz Ali SI P.W.7, Muhammad Nasir P.W.8, Abdul Ghaffar H. C P.W.9 whereas P.Ws. Mst. Sughran, Mst. Sunnan Bibi, Muhammad Ramzan, Muhammad Anwar and Bashir Ahmed were given up by the prosecution being unnecessary and tendered in evidence application for registration of case Ex.PB, receipt of dead body Ex.PC, recovery memo of empty cartridges Ex.PE, recovery memo of last worn clothes of the deceased Ex.PF, recovery memo of Repeater 12 bore Ex.PG, post mortem report Ex.PH, recovery memo of blood stained earth Ex.PI, site plan Ex.PJ and Ex.PK, FIR Ex.PL, inquest report Ex.PM, report of Chemical Examiner Ex.PN, report of Serologist Ex.PP, report of FSL Ex.PQ and closed the prosecution evidence.
6. Medical evidence was furnished by lady Doctor Saeeda Shamim WMO P.W.6 who stated that on 6-11-2007 she conducted postmortem examination on the dead body of Mst. Hafeezan Bibi deceased and observed as under:-- "External Appearce.
It was a dead body of young female with closed eye mouth semi opened wearing light pink printed Kameez, Shalwar light pink, Dopatta light pink blood stained. No ligature mark.
Injuries.
(1) Injury No,
1. Circular wound with inverted built margin measuring 2 cm x 2 cm x chest deep on left middle scapular area. Direction of the wound was superiorly to the neck.
(2) Circular wound 2 cm x 2 cm x chest deep two centimeter away from like injury No, 1.
(3) Circular wound with inverted margins 1 cm x 1 cm x chest deep. One centimeter away from injury No,2. Direction like injury No, 1.
(4) Circular wound with inverted burnt margins 1 cm x 1 cm x chest deep Two centimeters away from injury No,3.
(5) Injuries Nos. 5, 6 and 7 were 1 cm x 1 cm x chest deep with inverted burnt margins with same measuring on one centimeter below injury No .4.
' All injuries were in the middle of left scapular area.
Scalp, Skull and Spinal cord.
' All the viscera were normal in condition.
Thorax ' Walls, ribs, Cartilage, Pleura, left lung were damaged. Blood vessels 1 Ascending Aorta. 2 Pulmonary arties, veins were damaged (left side). All the rest of visceras were normal.
Abdomen.
' All the visceras were normal Stomach contained semi digested flood. Small intestine contained gases and fecal matter. Large intestine gases and fecal matter. Bladder contained 10 cc urine.
Muscles, Bones, Joints.
' Injuries already mentioned. Scapula, Ribs 4th, 5th and 6th left side damaged.
Opinion.
' After external and internal examination of dead body I am of the opinion that injuries Nos. 1 to 7 are sufficient to cause death in ordinary course of nature. All the injuries were ante- mortem.
' Probable time that elapsed between injuries and death was within five minutes and that of between death and postmortem about within 8 to 9 hours".
7. On the other hand, statement of present appellant Atta Muhammad was recorded under section 342, Cr.P.C. Who refuted the allegations so leveled against him and did not opt to appear as a witness under section 340(2), Cr.P.C. And also did not produce defence evidence and in reply to questions Nos. 18 and 19 "why this case against you and why the P.Ws. Deposed against you?" the appellant Atta Muhammad replied as under:-- "The complainant and his witnesses are inter se related and are related to the deceased also. In conspiracy with each other, they have falsely involved me in this case.
' To save the actual culprits, I have falsely been involved in this case".
8. After conclusion of the trial, learned trial court while acquitting Peer Baldish and Muhammad Khalid co-accused of the present appellant convicted the present appellant Atta Muhammad with above stated sentence through judgment dated 20-12-2010. Hence this appeal.
9. Learned counsel for the appellant contended that:-
(1) the judgment of the trial court dated 20-12-2010 is against law and facts on the file and is liable to be set-aside.
(ii) that the prosecution has failed to prove its case against the present appellant as there are many major discrepancies in the statements of the P. Ws. Further there is conflict between ocular evidence and medical evidence and the learned trial court has convicted the appellant on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law;
(iv) lastly submitted that appeal may be accepted and the judgment of the trial court dated 20- 12-2010 may kindly be set aside and appellant may be acquitted.
10. On the other hand, learned DPG assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that: -
(i) prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal.
11. We have heard the learned counsel for the parties and perused the record.
12. The detail of prosecution case as mentioned in FIR Ex.PL recorded on the written application (Ex.PB) moved by Rafique Ahmed complainant P.W.3 has already been given in paragraph No, 2 of this judgment, therefore, there is no need to repeat the same.
13. According to ,FIR, occurrence took place on 6-11-2007 at 8:00 a.m. Whereas FIR was registered on the same day on 6-11-2007 at 12:45 p.m. On the written application Ex.PB moved by Rafique Ahmed complainant P.W.3 real brother of Mst. Hafizan Bibi deceased.
14. The motive given by the complainant Rafique Ahmed P.W.3 in his written application Ex.PB and narrated by him in his statement before the trial court is that ten years prior to the instant occurrence Mst. Hafizan Bibi deceased had contracted marriage with Atta Muhammad present appellant and Mst. Shahida Bibi sister of Atta Muhammad present appellant at the same time had contracted marriage with Muhammad Siddique brother of Rafique Ahmed complainant. Atta Muhammad present appellant had divorced his wife Mst. Hafizan Bibi deceased 5/6 years before the instant occurrence due to family dispute and after the 'Talaq' Mst. Hafizan Bibi had been living with complainant whereas Mst. Shahida Bibi sister of Atta Muhammad present appellant is still living with his husband Muhammad Siddique real brother of complainant Rafique Ahmed. About 1- 1/2 years prior to the present occurrence, Atta Muhammad again wanted to contract 'Nikkah' with Mst. Hafizan Bibi deceased and complainant did not give permission on the ground that the same was not allowed in the. 'Sharia'.
15. Muhammad Siddique real brother of Rafique Ahmed complainant P.W.3 did not appear to support the motive story given by complainant Rafique Ahmed P.W.3. Muhammad Sadiq P.W.4 is first cousin of complainant P.W.3 but he had also not uttered a single word regarding the motive story of the prosecution in his statement before the trial court. Rafique Ahmed complainant P.W.3 himself did not give any detail that when and where and in whose presence Atta Muhammad appellant asked the complainant Rafique Ahmed P.W.3 to allow him to contract again 'Nikkah' with Mst. Hafizan Bibi deceased.
16. In view of the above, it is concluded that motive has not been proved by the prosecution. Even otherwise, the same has not been put to Atta Muhammad present appellant in his statement recorded under section 342, Cr.P.C. And it is admitted principle of law that if any incriminating piece of evidence is not put to accused in his statement recorded under section 342, Cr.P.C. For his explanation, then the same cannot be used against him for his conviction. Reliance is placed on case titled Muhammad Shah v. The State (2010 SCM R 1009).
17. Niaz Ali SI/I.0 of this case P.W.7 stated that on 20-11-2007 Atta Muhammad present appellant was arrested by him and on 23-11-2007 during interrogation he disclosed and led to the recovery of Repeater 12-bore Gun P-4 from a room of his house lying in an iron box along with four cartridges P-5/ 1-4. Same were taken into possession through recovery memo. Exh.PG attested y Sadiq P.W.4.
18. We have perused the report of Forensic Science Laboratory Ex.PQ and following is written in the report:- "While making test fire, the shot gun (pump action) of 12 bore was burst out and thus working system was damaged. Efforts were made from the shot gun but in vain, hence, the crime empties of 12 bore marked as Cl to C4 are being sent unexamined".
19. In view of the above, the alleged recovery of Repeater 12 bore gun has become inconsequential in the instant case in absence of positive report of FSL.
20. Rafique Ahmed complainant P.W.3 is real brother of Mst. Hafizan Bibi deceased stated that on 6-11-2007 at about 8:00 a.m. His sisters Hafizan Bibi (deceased), Mst. Sughran Bibi and Sonnan Bibi (given' up P.W.) were picking the cotton crop in the field and he was standing near the cotton field.
Meanwhile, Atta Muhammad present appellant while armed with repeater .12-bore gun, Muhammad Khalid armed with pistol and Peer Bakhsh empty handed (acquitted co-accused) appeared at the spot and Atta Muhammad present appellant made a straight fire on his sister.
Mst. Hafizan Bibi which was missed and he made second fire which hit on the back of Mst. Hafizan Bibi who fell down on the ground due to the injuries and expired. He further stated that Peer Bakhsh and Muhammad Khalid (acquitted co- accused) caught hold of him. Muhammad Sadiq P.W.4 also narrated the same story as stated by the complainant Rafique Ahmed who is first cousin of Rafique Ahmed complainant P.W.3. Both the above stated eye-witnesses have faced lengthy cross- examination but their evidence could not be shaken during the process of cross, examination and they remained consistent on all material aspects of the case and they corroborated each other on every material point. It is a day light occurrence and there is no question of mis-identity of Atta Muhammad present appellant who is otherwise, cousin of Muhammad Sadiq P. W.4 as stated by him in his examination in chief. The presence of above mentioned eye-witnesses at the spot at the relevant time, therefore, cannot be considered as unnatural or improbable. There is another aspect of the case that Rafique Ahmed complainant is real brother of Mst. Hafizan Bibi deceased and it is a case of single accused to the extent of attribution to Atta Muhammad present appellant on the person of Hafizan Bibi deceased. It is highly improbable that complainant Rafique Ahmed would let off the real culprit and will falsely implicate Atta Muhammad present appellant for the murder of his real sister Mst. Hafizan Bibi. Substitution in such like cases is a rare phenomenon.
21. The medical evidence was furnished by lady Doctor Saeeda Shamim P.W.6 detail of which is given in pars No,6 of this judgment. Lady doctor Saeeda Shamim stated that in her opinion the injuries Nos. 1 to 7 observed on the person of Mst. Hafizan Bibi were sufficient to cause death in ordinary course of nature and all the injuries were ante-mortem. The probable time that elapsed between injury' and death was within five minutes and that of between death and postmortem was about within 8 to 9 hours.
22. We are, therefore, of the view that medical evidence furnished by lady Doctor Saeeda Shamim P.W.6 has fully supported the above mentioned ocular account furnished by Rafique Ahmed P.W.3 and , Sadiq P.'W,4.
23. It is settled law that mere relationship of a witness with deceased would not make the witness unworthy of reliance, if his testimony is corroborated by the independent evidence of circumstances appearing on the record and in the instant case two eye-witnesses Rafique Ahmed P.W.3 being real brother of Mst. Hafizan Bibi and Muhammad Sadiq P.W.4 being a cousin of Mst.
Hafizan Bibi deceased are reliable witnesses who have reasonably explained their presence at the spot and they remained unshaken despite being subjected to lengthy cross-examination. Reliance is placed on case titled Hasil Khan v. The State and others (2012 SCM R 1936).
24. Although, we have disbelieved the evidence of the prosecution qua the motive and have not considered the recovery of repeater 12-bore gun P-4 as corroborative piece of evidence in the instant case in presence of negative report of FSL Ex.PQ. Even otherwise, there is sufficient incriminating evidence available on the record to prove the prosecution case against the present appellant. As discussed earlier, prosecution case was proved against the present appellant through the evidence of eye-witnesses furnished by Rafique Ahmed P.W.3 and Muhammad Sadiq P.W.4 as observed by us in the preceding paras supported by medical evidence furnished by lady doctor Saeeda Shamim P.W.6, therefore, we are of the view that prosecution has proved its case against the appellant Atta Muhammad appellant beyond shadow of any doubt.
25. On the other hand, Atta Muhammad appellant did not appear under section 340(2), Cr.P.C. And also did not produce any defence evidence and simply replied to questions Nos. 20 and 21 in his statement recorded under section 340(2), Cr. P. C . As under : -- "The complainant and his witnesses are inter-se related and are related to the deceased also. In conspiracy with each other, they have falsely involved me in this case.
' To save the actual culprits, I have falsely been involved in this case".
26. In view of the above, the defence plea of Atta Muhammad appellant is nothing except simplicitor denial which is hereby discarded.
27. Now coming to the quantum of sentence, we have noted some mitigating circumstances in favour of the appellant Atta Muhammad. Firstly, we have not considered recovery of Repeater 12- bore gun P-4 as corroborative piece of evidence in the instant case in presence of negative report of FSL Ex.PQ, secondly, prosecution case to the extent of Peer Bakhsh and Muhammad Khalid co- accused of the present appellant Atta Muhammad was found false and they were acquitted by the trial court through the impugned judgment by disbelieving the evidence of the prosecution to that extent, thirdly it is a case of single fire and there is no repetition of firearm injury against the appellant on the person of Mst. Hafizan Bibi deceased and fourthly, we have disbelieved the motive given by prosecution in paras Nos. 15 and 16 of this judgment and same was not put to the appellant Atta Muhammad in his statement recorded under section 342, Cr.P.C. It is not determinable in this case as to what was the real cause of the occurrence and as to what was actually happened immediately before the occurrence which resulted into present unfortunate incident, therefore, in our view the death sentence awarded by the learned trial court to the appellant is quite harsh. It is well recognized principle by now that the accused is entitled to 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 Meer Muhammad alias Meero v. The State (2009 SCM R 1188) wherein the Hon'ble Supreme Court of Pakistan 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 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.
28. Same view has been reiterated by the Supreme Court of Pakistan in case Ghulam Mohy-ud-Din alias Haji Babu and others v. The State (2014 .SCMR 1034) in which Hon'ble Supreme Court of Pakistan has observed at pages 1043 and 1044 as under:-- "Albeit, in a chain of case-law the view held is that normal penalty is death sentence for murder, however, once the Legislature has provided for awarding alternative sentence of life imprisonment, it would be difficult to hold that in all the cases of murder, the death penalty is a normal one and shall ordinarily be awarded. If the intent of the Legislature was to take away the discretion of the Court, then it would have omitted from clause (b) of section 302, P.P.C., the alternative sentence of life imprisonment. In this view of the matter, we have no hesitation to hold that the two sentences are alternative to one another, however, awarding one or the other sentence shall essentially depend upon the facts and circumstances of each case. There may be multiple factors to award the death sentence for the offence of murder and equal number of factors would be there not to award the same but instead a life imprisonment. It is a fundamental principle of Islamic Jurisprudence on criminal law to do justice with mercy, being the attribute of Allah Almighty but on the earth the same has been delegated and bestowed upon the Judges, administering justice in criminal cases, therefore, extra degree of care and caution is required to be observed by the Judges while determining the quantum of sentence, depending upon the facts and circumstances of particular case/cases.
21. 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.
' Albeit, there are multiple factors and redeeming circumstances, which may be quoted, where awarding of death penalty would be unwarranted and instead life imprisonment would be appropriate sentence but we would avoid to lay down specific guidelines because facts and circumstances of each case differ from one another and also the redeeming features, benefiting an accused person in the matter of reduced sentence would also differ from one another, therefore, we would deal with this matter in any other appropriate case, where, if proper assistance is given and extensive research is made.
' In any case, if a single doubt or ground is available, creating reasonable doubt in the mind of Court/Judge to award death penalty or life imprisonment, it would be sufficient circumstances to adopt alternative course by awarding life imprisonment instead of death sentence".
29. Further reliance is placed on case Hasil Khan v. The State (2012 SCM R 1936) in which Hon'ble Supreme Court of Pakistan has observed at page 1941 as under:-- "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 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 Ahmad 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".
' 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".
30. In another case titled Nawaz Khan v. Ghulam Shabbir and The State (1995 SCM R 1007) while determining the proper quantum of sentence, Hon'ble Supreme Court of Pakistan in para No.9 of the judgment has observed as under:- "Adverting to the question of sentence raised by the learned counsel for Mawaz Khan, we find that Abdullah Khan (P. W. 9) and Muhammad Akhtar (P. W.10) have deposed about the motive but they were not present when the incident of motive took place. The circumstance of chopping of nose and cutting the ear of the deceased will show that the act of the accused of killing the deceased was somewhat provoked. So the rea motive for the crime remains shrouded in mystery. The question of benefit of reasonable doubt is necessarily to be determined not only while deciding the question of guilt of an accused person but also while considering the question of sentence, particularly in a murder case, because there is a wide difference between the two alternative sentences-death or imprisonment for life. Benefit of reasonable doubt in respect of the real cause of the occurrence was thus available to the accused. Needless to add that whenever the real cause of murder is shrouded in mystery, is unknown or is concealed, the Courts have normally awarded the lesser punishments under section 302, P.P.C. As a matter of abundant caution.
(Underlining is ours)".
31. For the foregoing reasons, the conviction of Atta Muhammad appellant under section 302(b), P.P.C. Awarded by the learned trial court is maintained and his sentence is altered from death to imprisonment for life. The compensation awarded by the trial court and sentence in default thereof is maintained. The benefit of section 382-B, Cr.P.C. Is also given to the appellant Atta Muhammad.
Consequently, with the above said modifications in the sentence of Atta Muhammad appellant, Criminal Appeal No. 468 of 2010 filed by Atta Muhammad present appellant is hereby dismissed.
Murder Reference No.01 of 2011 is answered in NEGATIVE and death sentence of Atta Muhammad present appellant is NOT CONFIRMED.