Sadaqat Ali Khan, J.: This single judgment shall dispose of Criminal Appeal No.58-J of 2012 filed by Ayyub Khan appellant (against his conviction) and M.R. No.14 of 2012 sent by learned trial court for confirmation of the death sentence of the appellant Ayyub Khan or otherwise as both the matters have arisen out of the same judgment dated 31.01.2012 passed by learned Additional Sessions Judge, Rahimyar Khan according to which the present appellant was convicted and sentenced as under:- "Ayyub Khan was convicted under section 302(b) PPC and sentenced to death for committing the murder of Meer Azam deceased along with compensation Rs.1,00,000/-under section 544-A Cr.P.C payable to legal heirs of the deceased and in default thereof further undergo six months S.I".
Whereas his co-accused namely Ayyub Khan son of Arsal Khan, Sharif Khan, Rehmatullah and Asmatullah were acquitted by the trial court in case FIR No.76 dated 25.6.2008 under sections 302, 324, 148/149 PPC police station Airport, Rahimyar Khan.
2. The facts of case have been stated by Hameedullah complainant PW-1 in his statement before the learned trial court and same is hereby reproduced for narration of the facts: - "On 25.06.2008 at Fajjar prayer, my brother Meer Azam went to Mosque for Fajjar prayer there.
Where Ayyub armed with Gun 12 bore, Asmatullah armed with Pistol 12 bore, Ayyub alias Madeefa armed with Gun 12 bore, Rehmatullah and Sharif both armed with soties accused present before the Court came. Muhammad Ayyub made a lalkara to my brother Meer Azam that they will teach a lesson on the quarrel of ladies. On hue and cry, I along with my brother Niamat, Abdul Khaliq and Mst. Gulshad reached there. Within our sight, Ayyub son of Muzaffar made a fire shot with his gun which hit on the face, neck and belly of my brother Meer Azam. Ayyub alias Madeefa hit the butt of gun on my head and left arm. Rehmatullah accused gave a sota blow to Abdul Khaliq which hit on his forehead. Sharif accused gave soti blow to Mst. Gulshad. On our hue and cry, Tariq and Najeeb and other people of the area came there who had also witnessed the occurrence. My brother Meer Azam succumbed to the injuries at the spot. All the accused persons fled away from the spot after brandishing their weapon. Motive behind the occurrence is that 15/16 days prior to the occurrence, a quarrel took place between our ladies and the ladies of the accused persons which extended to family men but afterward, the respectables of the area had patched up the matter but the accused kept a grudge in their heart. On receiving the information, the police came at the spot and recorded my statement Exh.PA which was read over to me and I signed the same in token of its correctness. I was also medically examined by the medical Officer on the request of police"
3. After registration of the case, investigation started and on completion of the same 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 27.11.2008 against the present appellant/convict Ayyub Khan and his co- accused Ayyub Khan son of Arsal Khan, Sharif Khan, Rehmatullah and Asmatullah (since acquitted) under section 148, 302 read with section 149, 324, PPC to which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Hameedullah complainant as PW-1, Shair Abbas PW-2, Hameedullah Revenue Patwari PW-3, Dr. Khalid Mukhtiar MO PW-4, Nazeer Ahmad constable PW-5, Maqsood Hassan Nawaz A.S.I. PW-6, Muhammad Tariq PW-7, Abdul Khaliq PW-8, Muhammad Akhtar constable PW-9, Muhammad Aslam constable PW-10, Nabi Ahmad ASI PW-11, Niaz Ahmad SI PW-12 and Tahir Mehmood Khan SHO PW-13 whereas PWs namely NajeebUllah, Niamat, Abdul Razzaq, Abdul Latif and Mst. Gulshad were given up by the prosecution being unnecessary and after tendering documents in documentary evidence i.e. statement of HameedullahExh.PA, memo of possession of blood stained earth Exh.PB, memo of recovery of Bandooq 12-Bore Exh.PC, memos of recoveries of soties Exh.PD to Exh.PF, postmortem report Exh.PG, inquest report Exh.PH, injury plan Exh.PH/1, Medical Report Exh.PI, Medical Report Exh.PJ, Injury plan Exh.PJ/1, memo of possession of blood stained earth Exh.PL, memo of recovery of empty cartridges Exh.PM, injury plan Exh.PO, site plans Exh.PK and Exh.PN, report of Forensic Science Lab Punjab Exh.PO, Report of Chemical Examiner Exh.PP, Report of Serologist Exh.PP/1 and closed the prosecution evidence.
6. Medical evidence was furnished by Dr. Khalid Mukhtiar M.O PW-4, who stated that on 25.6.2008 he conducted postmortem examination on the dead body Meer Azam deceased and observed as under:- "EXTERNAL EXAMINATION.
I found the following injuries on the dead body.
1. A grazing wound measuring 3.5 cm x 1 cm situated on right eye brow. Bone exposed.
2. A lacerated wound with inverted margins blackening, burning .6 cm x .6 cm situated on the medial lower part of the neck on right clavicle.
3. A lacerated wound with inverted margins blackening, burning .6 cm x .6 cm situated on the same level of injury No.2 6 cm medially.
4. A lacerated wound measuring 6 cm x 6 cm with inverted margins blackening, burning situated adjacent to the injury No.3.
5. A lacerated wound measuring 6 cm x 6 cm with inverted margins blackening, burning situated adjacent to the injury No.4. .5 cm inferior laterally.
6. A lacerated wound measuring .6 cm x .6 cm with inverted margins blackening, burning situated supra sternal notch .5 cm medial to the injury No.4.
7. A lacerated wound measuring .6 cm x .6 cm inverted margins with blackening, burning merging to the injury No.6.
8. A lacerated wound measuring 1.5 cm x 1 cm inverted margins with blackening, burning situated .5 cm superior to injury No.6.
9. A lacerated wound measuring .6 cm x .6 cm inverted margins with blackening, burning situated just .2 cm above the medial of left clavicle and 1.5 cm supero lateral injury No.8.
10. A lacerated wound measuring 1 cm x .5 cm on the upper part of the right side of chest with blackening, burning 11 cm above the right nipple.
II-CRANIUM SPINAL CORD.
Scalp damaged as mentioned previously. Skull intact. Membranes brain and spinal cord were healthy.
III-THORAX.
Walls ribs and cartilages, chest wall damaged as mentioned earlier. Pleura, right pleural cavity full of blood, left contained small amount of blood damaged. Larynx and tracheae both damages.
Right lung upper lobe damaged, pellets present and handed over to police. Left lung upper damaged, Pericardium and heart healthy but empty. Blood vessels damaged near supera sterna notch.
IV-ABDOMEN.
Walls, peritoneum. Mouth pharynx and Diaphragm, pancreas, small and large intestines and their contents, liver, spleen, kidney, bladder, organs of generation external and internal were healthy whereas esophagus damaged.
V-MUSCLE BONES AND JOINTS.
Injuries as mentioned earlier. Disease or deformity, fracture and dislocation: X-ray of skull, neck and chest, T/L supine performed before starting autopsy and sent to radiologist for expert opinion.
VI-REMARKS BY MEDICAL OFFICER.
After conducting thorough external and internal P.M examination (autopsy), I was of the opinion that the cause of the death was injury No.2, 3, 4, 5, 6, 7, 8, 9 and 10 collectively causing damaged to the vital organs (lungs) leading to severe hemorrhage, shock, coma and death are collectively sufficient to cause death in ordinary course of life. All the injuries are anti-mortem in nature and caused by fire arms.
Probable time that elapsed between injury and death was within 10 to 15 minutes approximately and between death and postmortem was within 12 hours.
On the same day Dr. Khalid Mukhtiar PW-4 conducted the medical examination of Abdul Khaliq and Hameedullah injured persons and his observations with regard to Abdul Khaliq injured person were as under:-
1. A lacerated wound measuring 1.5 cm. x 0.3 cm muscle deep situated on the left side of the nasal bridge. X-ray was advised.
After the X-ray report, no fracture was seen and the said injury was found as Shajjah-eKhafifah.
Kind of weapon blunt. Duration of injury 3-5 hours.
His observations with regard to Hameedullah injured person were as under:
1. An incised wound measuring 1 cm x 0.2 cm skin deep situated on the left side of the chin. 1.5 cm the left lower lip.
2. Swelling on the posterior surface of the left forearm measuring 5 cm x .5 cm and 4 cm above left wrist joint.
3. Lacerated wound muscle deep situated on the top of head. Posteriorly measuring 4.5 cm x 3 cm, 10 cm above from the pina of left ear.
Advised X-ray left forearm AP Latera. X-ray skull AP lateral. Injuries KUO. Kind of weapon: one caused by sharp whereas injuries No.2 and 3 by blunt. Probable duration of injuries 3 to 5 hours"
7. On the other hand, statement of present appellant Ayyub Khan son of Muzaffar Khan was recorded under section 342 Cr.P.C who refuted the allegations so leveled against him and has not opted to appear under section 340(2) Cr. PC and also did not produce any oral as well as documentary defence evidence. In reply to question "why this case against you and why the PWs deposed against you?" the appellant Ayyub Khan replied as under: - "PWs are related inter-se. False case has been registered against me"
8. Further stated in reply to a question "Have you anything else to say?" as under: - "I am innocent. Infact the complainant party trespassed into my house and injured my brother Asmatullah, mother Amratri Jan, Ayyub Khan son of Arsal Khan, Sharif Khan son of Arsal Khan, Rehmatullah son of Muzaffar Khan and there was free fight firing took place and cross version was registered from our side against complainant party who are also facing trial".
9. After conclusion of the trial, learned trial court while acquitting Ayyub Khan son of Arsal Khan, Sharif Khan, Rehmatullah and Asmatullah co-accused, convicted the present appellant Ayyub Khan with above stated sentences through judgment dated 31.01.2012 Hence this criminal appeal.
10. Learned counsel for the appellant contended that:-
(i) the judgment of the trial court dated 31.01.2012 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 PWs 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 31.01.2012 may kindly be set aside and appellant may be acquitted.
11. On the other hand, learned DPG has vehemently opposed the appeal 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.
12. We have heard the learned counsel for the parties and perused the record.
13. The detail of prosecution case as given by Hameedullah complainant PW-1 has already been given in para 2 of this judgment, therefore, there is no need to repeat the same to avoid the duplication and repetition.
14. According to the FIR, occurrence took place on 25.06.2008 at 'Fajar Waila' whereas FIR was registered on 25.6.2008 at 01:00 p.m.
15. Deceased of this case is Meer Azam. Hameedullah PW-1 is real brother of Meer Azam deceased.
16. Prosecution has introduced following accused in this case: - (i) Ayyub Khan son of Arsal Khan
(ii) Sharif Khan (iii) Rehmatullah (iv) Asmatullah (these four accused have been acquitted by the trial court through the impugned judgment but complainant has not filed any appeal against their acquittal) (v) Ayyub Khan son of Muzaffar Khan (present appellant).
17. Hameedullah complainant injured PW-1, Muhammad Tariq PW-7 and Abdul Khaliq injured PW-8 claim themselves to be the eye witnesses of the occurrence.
18. Although, Ayyub Khan son of Arsal Khan, Sharif Khan, Rehmatullah and Asmatullah co-accused have been acquitted by the trial court through the impugned judgment by disbelieving the evidence of above mentioned eye witnesses to their extent yet it is settled by now that the maxim 'falsus in uno falsus in omnibus' has no universal application and it is bounden duty of the court to sift the grain from the chaff. Reliance is placed on case Elahi Bakhsh Vs. Rabnawaz and another (2002 SCM R 1842) in which Hon'ble Supreme Court of Pakistan has observed at page 1847 as under: - "We have also adverted to the contention of Sardar Muhammad Latif Khan Khosa, learned Senior Advocate Supreme Court that on the basis of same evidence Rabnawaz (petitioner) could not have been convicted but it has been ignored while raising the said contention that the case of acquitted accused is absolutely on a different and distinct footing as no specific role whatsoever was assigned to them which has been attributed to Rabnawaz (petitioner) in a categoric manner.
In such an eventuality the credibility of "Ellahi Bukhsh PW-7 and Abdur Razzaq PW-10 could not be said to have been shattered due to the said acquittal. It is well settled by now that the maxim 'falsus in uno falsus in 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. 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".
19. These three eye witnesses specifically stated that present appellant Ayyub Khan made a fire shot with his 12-bore gun which hit on the face, neck and abdomen of Meer Azam deceased. These three eye witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination to the extent of Ayyub Khan present appellant. They corroborated one another on all material aspects of the case to his extent because their evidence is straightforward, trustworthy and confidence-inspiring. They have established their presence at the place of occurrence at the time of occurrence with stated reason.
20. Hameedullah complainant PW-1 and Abdul Khaliq PW-8 are the real brothers of Meer Azam deceased. Mere relationship of a witness with the deceased could not make the witness unworthy of reliance if his testimony is corroborated by the independent evidence or the circumstances appearing on the record and in the instant case although Hameedullah injured PW-1 complainant and Abdul Khaliq injured PW-8 being real brothers of Meer Azam deceased are closely related with Meer Azam deceased yet both have reasonably explained their presence at the spot at the time of occurrence and remained unshaken despite being subjected to lengthy cross-examination. Their evidence could not be discarded only on the point of mere relationship. Reliance is placed on case titled "Hasil Khan Vs. The State" (NLR 2013 Crl. 21) in which Hon'ble Supreme Court of Pakistan has observed at pages 26 & 27 as under: - "the ocular account in this case was furnished mainly by PW-1 Dil Murad (complainant) and Zareef Khan PW-2. The former is a brother whereas the latter is nephew of the deceased. Though both are relations but mere relationship would not make a witness unworthy of reliance if his testimony is corroborated by any independent evidence or circumstance appearing on record. Both these witnesses have reasonably explained their presence at the spot i.e. the reason of their travel was that they were returning from a marriage ceremony and this reason has not been specifically challenged by the defence during cross-examination. Their testimony is corroborated by the medical evidence and the recovery of T.T. pistol. All the eye witnesses were subjected to lengthy cross examination but their credibility could not be shaken as they not only corroborated each other but also remained consistent on all material particulars of the prosecution case".
21. Medical evidence has been furnished by Dr. Khalid Mukhtiar M.O PW-4 whose details are mentioned at para 6 of this judgment, therefore, no need to repeat the same to avoid duplication and repetition.
22. Injuries on the person of Meer Azam deceased were the result of firearm weapon. The probable time elapsed between injury and death was within 10 to 15 minutes approximately and between death and postmortem was within twelve hours. Therefore, medical evidence has fully supported the ocular account furnished by above mentioned eye witnesses to the extent of Ayyub Khan present appellant.
23. Motive of the occurrence stated by Hameedullah complainant PW-1 in the FIR is as under: -
24. He stated in cross-examination regarding motive as under: - "15/16 days prior to the occurrence, a quarrel had taken place between the parties over children. By the intervention of Riaz Khan, Azizullah and another Pathan the matter was patched up. During the span of 15/16 days no other quarrel had taken place between us"
25. Admittedly, no specific time, date and place of quarrel have been mentioned by the complainant. He himself does not claim to be the eye witness of above mentioned quarrel. No child or woman has been produced by the prosecution to establish the above mentioned motive of the prosecution.
26. Considering above, we are of the opinion that prosecution has failed to prove motive.
27. Present appellant Ayyub Khan was arrested on 13.7.2008. Niaz Ahmad SI PW-12 I.O of this case stated before the trial court that on 16.7.2008 during interrogation present appellant made disclosure and got recovered 12-bore gun P-3 from his residential 'Ahata' which was taken into possession through recovery memo Ex.PC and same was sealed into a parcel.
28. We have perused report of FSL Ex.PO according to which crime empty of 12-bore P-8 and 12- bore gun Ex.P3 both have been received in the office of FSL on 19.7.2008 together. Considering above, possibility of manufacturing of the crime empty before their dispatch to the said laboratory cannot be ruled out of consideration. Reliance is placed on case titled Masood Aslam alias Shada V. The State (2002 P Cr.LJ 1603) in which Hon'ble Division Bench of this Court has observed at page 1610 as under:- "Even otherwise the alleged recoveries of fire-arm weapons from the appellants were not of much avail to the prosecution as the statements of PWs 2, 5 and 11 show that the crime empties and the said weapons had been sent to the Forensic Science Laboratory together. Thus a possibility of manufacturing of the said crime-empties before their dispatch to the Forensic Science Laboratory could not be ruled out of consideration."
29. Considering above, positive report of FSL Ex.PO is not believable and the same is discarded.
30. Although we have disbelieved motive story of the prosecution as well as positive report of FSL Ex.PO, yet if this evidence has been excluded from consideration, even then, prosecution has proved its case beyond any shadow of doubt against the present appellant Ayyub Khan through ocular account furnished by Hameedullah complainant PW-1, Muhammad Tariq PW-7 and Abdul Khaliq PW-8 (eye witnesses) to his extent supported by medical evidence.
31. Adverting to the defence plea of the present appellant Ayyub Khan he stated in answer to question "why this case against you and why the PWs deposed against you?" as under:- "PWs are related inter-se. False case has been registered against me"
Further stated in reply to a question "Have you anything else to say?" as under: - "I am innocent. Infact the complainant party trespassed into my house and injured my brother Asmatullah, mother Amratri Jan, Ayyub Khan son of Arsal Khan, Sharif Khan son of Arsal Khan, Rehmatullah son of Muzaffar Khan and there was free fight firing took place and cross version was registered from our side against complainant party who are also facing trial".
He did not appear as a witness under section 340(2) of Cr.P.C and also did not produce any oral as well as documentary evidence in support of his defence plea. Considering above it is concluded that appellant has failed to prove his defence plea and learned trial court has rightly discarded his defence plea with sufficient reasons.
32. Coming to the quantum of sentence, we have noted some mitigating circumstances in favour of the present appellant. Firstly, we have discarded positive report of FSL Ex.PO with the reason mentioned in paras 26 to 28 of this judgment. Secondly, it is a case of single fire-shot and there is no allegation of repetition against the present appellant. Thirdly, we have disbelieved the motive story of the prosecution in paras 20 to 23 of this judgment. 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 resulted into present unfortunate incident. Therefore, in our view death sentence awarded to the appellant Ayyub Khan 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 to the case of Meer Muhammad alias Miro Vs. The State (2009 SCM R 1188) in which 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"
33. Further reliance is placed on case Zafar Iqbal and others v. The State (2014 SCM R 1227) in which Hon'ble Supreme Court of Pakistan has observed at pages 1235 & 1238 as under: - "the question of awarding of sentence is required by law to be adverted to in every criminal case and it is the duty of the Court to always consider this aspect of the matter while awarding sentence. In the present case trial Court has awarded death sentence to the appellants, which has been maintained by the High Court and the murder reference has been answered in positive. On examination of the record certain facts have come to light, which needs to be given serious consideration and they probably have in them material on the basis of which the case of mitigation in sentences could be found. Although in the ocular account it is alleged that appellant Iftikhar has fired with a rifle at Jaffar Hussain deceased on his head and he has also fired at Abdaal Hussain deceased on the left side of his chest but the prosecution has not been able to secure or recover any firearm from this appellant. At the same time appellant Asghar Iqbal is alleged to have fired with his rifle at Abdaal Hussain deceased on his left ear with his rifle. Although 7 mm rifle was recovered on the pointation of this appellant but no recovery of empty of this rifle was made from the place of incident and there is no report of Forensic Science Laboratory (FSL) of connecting the recovered 7 mm rifle with the two crime empties recovered from the place of incident. It is also noted that the real motive as propounded in the prosecution version was against deceased Jaffar Hussain in that he was the one, who has beaten appellant Iftikhar. The motive being against deceased Jaffar Hussain, it is not understandable as to why the appellant after having murdered Jaffar Hussain will proceed covering distance and murder Jaffar Hussain's two sons, namely, Abdaal Hussain and Abrar Hussain. This will go to show that something very obnoxious may have happened at the place of occurrence of which neither the prosecution has given any evidence nor the same has come out from the side of defence. Thus the immediate circumstance or cause for the happening of the events, which culminated into the murder of three persons namely, Jaffar Hussain, Abdaal Hussain and Abrar Hussain are altogether shrouded in mystery"
"All the above factors in the light of the law laid down by this Court as discussed above lead us to the conclusion that there are sufficient extenuating circumstance, on the basis of which the appellants could not be made liable to the maximum punishment provided under section 302(b)
PPC, rather the ends of justice would be met, if their death sentence is converted into imprisonment for life. While maintaining the conviction of the appellants and modifying the sentence benefit of section 382-B Cr.P.C, this appeal is partially allowed in the above terms".
34. For the foregoing reasons, conviction of present appellant Ayyub Khan u/s 302(b) PPC is maintained but his sentence is altered from death to imprisonment for life. Compensation and sentence in default thereof are also maintained. The benefit of section 382-B Cr.P.C is also given to the appellant Ayyub Khan. Consequently, with the above said modification, Criminal Appeal No. 58-J of 2012 filed by Ayyub Khan present appellant is dismissed. M.R No. 14 of 2012 is answered in NEGATIVE and death sentence of Ayyub Khan present appellant is NOT CONFIRMED.