' SYED SHAHBAZ ALI RIZVI, J.---This judgment shall dispose of Criminal Appeal No,2469 of 2010 titled as Bhai Khan v. The State and another filed by Bhai Khan appellant against his conviction and sentence as well as Murder Reference No,586 of 2010 titled as The State v. Bhai Khan transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Bhai Khan, appellant arisen out of the same judgment dated 9-10-2010 passed by the learned Additional Sessions Judge, Chiniot, District Jhang in case FIR No,20 dated 25-1-2008, offence under sections 302, 34, P.P.C. Registered at Police Station Chenab Nagar, District Jhang (now district Chiniot) whereby the appellant. Bhai Khan was convicted under section 302(b), P.P.C. And sentenced to death with the direction to pay Rs,400,000 as compensation to the legal heirs of Muhammad Mumtaz (deceased) under section 544-A of the Code of Criminal Procedure, 1898 and in default thereof, to undergo simple imprisonment for six months. However, through the same judgment, the remaining accused Altaf, Mumtaz and Mehdi were acquitted from the charge by the learned trial court.
2. The facts unfolded by Jug day, the complainant (P.W.2) in his complaint (Ex.PA) which culminated into FIR (Ex.PA/1) are that he (complainant) is resident of Thatha Joyian, and farmer by profession. On 25-1-2008 at about 03:00 p.m, the complainant along with his brother Muhammad Mumtaz (deceased), Mehdi Hussain (given up P.W.) and Muhammad Ilyas (P.W.3) left his house for Thatha, Hawaili for "Fateha Khawani" of Manak son of Khan. Complainant's brother Muhammad Mumtaz (deceased) was ahead of him and when he reached at the door of his house, Muhammad Mumtaz son of Rehma armed with rifle, Mehdi armed with .12 bore gun (since acquitted), Bhai Khan (appellant) armed with double barrel gun .12 bore and Altaf armed with .30 bore pistol (since acquitted) emerged from the school while raising 'lalkaras' that Muhammad Mumtaz (deceased) be taught a lesson for insulting them. Mehdi (since acquitted) raised 'lalkaras' that Muhammad Mumtaz (deceased) should not go alive whereupon Bhai Khan (appellant) ran towards complainant's brother and made a straight fire which hit Muhammad Mumtaz (deceased) in his abdomen; fire shot made by Muhammad Mumtaz (since acquitted) hit on right flank of Muhammad Mumtaz (deceased). Mehdi and Altaf (since acquitted) with their respective firearms also made fire shots on Muhammad Mumtaz (deceased). Thereafter the assailants started firing with their respective weapons. The complainant and, .The witnesses managed to save their lives.
When the people of the vicinity attracted to the spot, the accused persons while resorting to aerial firing, fled away from the scene of occurrence. The complainant attended his brother Muhammad Mumtaz who due to sustaining injuries in his abdomen, back and right flank, died at the spot.
' Motive behind the occurrence is that there is a school ground in front of the house of complainant where Bhai Khan (appellant) and others used to play "Kabaddi" in the evening time. One week prior to the occurrence, Muhammad Mumtaz (deceased) forbade them for doing so which resulted into scuffle and exchange of abuses and due to that grudge, the assailants with their common intention committed murder of Muhammad Mumtaz (deceased).
3. The appellant was arrested in this case on 26-2-2008 by Muhammad ZafarUllah, SI (P.W.10), who during physical remand on 5-3-2008 at his instance got recovered .12 bore gun (P-1) which was taken into possession vide recovery memo (Ex. PB).
4. Learned trial court after observing all the pre-trial codal formalities, charge sheeted the appellant to which he pleaded not guilty and claimed to be tried.
5. To prove its case, the prosecution produced as many as ten witnesses. In order to establish the ocular account prosecution examined Jugday, the complainant (P.W.2) and Muhammad Ilyas (P.W.3) as eye witnesses. They are also the witnesses of recovery of crime weapon .12 bore gun (P- 1) effected at the instance of Bhai Khan (appellant).
' The medical evidence was furnished by Dr. Ejaz Hussain (P.W.4), who on 25-1-2008 at 11:00 p.m., conducted post mortem examination on the dead body of Muhammad Mumtaz (deceased) and found following injuries:-- "(1) Four lacerated wounds 0.5 x 0.5 cm each one on front of left flank. One on middle flank and two on front of right flank. Margins were inverted and these were wounds of entry. Burning and blackening were present. Corresponding holes were present on Qameez.
(2) Five lacerated wounds 0.5 x 0.5 cm each were present on back of right flank. The margins were inverted, wounds of entry, no burning present, blackening was present. Corresponding holes were present on the clothes (Qameez and Bunains).
(3) A lacerated wound 0.5 x 0.5 cm on, outer side of right flank. Margins were inverted and it was wound of entry, no burning was present, blackening was present, corresponding holes were present on the dependants parts of clothes.
' The opinion of the. Medical Officer is reproduced as under:-- "Death in my opinion was due to cardio pulmonary arrest caused by haemorrhage, shock and injury to vital organs (heart, liver, stomach, intestine etc) which was resulting from injury Nos.1, 2 and 3 which were sufficient to cause death in ordinary course of nature and hence were proved fatal. All injuries were ante mortem and caused by fire arm weapons. Two metallic foreign bodies were found from left upper flank, sealed in a bottle signed and handed over to concerned head- constable. Probable time between injury and death was immediately and between death and post mortem was with 7 to 10 hours."
6. Muhammad Zafar Ullah, S.I. (P. W.10) is the Investigation Officer of this case Riaz Ahmad, Draftsman (P.W.8) prepared scaled site plan (Ex.PH) of the place of occurrence, whereas rest of the prosecution witnesses are formal in nature.
7. The prosecution tendered reports of Serologist (Ex.PK) and Chemical Examiner (Ex.PL) and closed its evidence.
8. Statement of the appellant was recorded under section 342, Cr.P.0 wherein he negated the allegations levelled against him and claimed his innocence. In reply to the question as to "Why this case against you and why the P. Ws. Deposed against you", Bhai Khan (appellant) replied as under:-- "I am innocent. I was not present at the time of occurrence. Jagday, Mandi and Ilyas P.Ws. Were not present there. Mumtaz deceased called two unknown his friends who were armed there. Then Mumtaz deceased on the day of occurrence occasionally made aerial firing so as to be threatened the persons of Joiya caste. One Mubashir and Afrahim Joiya by caste went their fields to look after their cattle. When they reached their fields they were also armed with weapons, so as to guard their cattle. Haral caste of that area usually are abdicator. When two persons of Joiya caste reached their fields Mumtaz deceased and his associates started firing upon them from some distance. Both of said persons were also made reply on the same coins while making aerial firing so as to secure themselves, during which the deceased Mumtaz was sustained firearm injury on his back from the hand of one his associate who was standing closely at that time. The complainant reached after the commission of murder at the spot after attending the SATA ceremony of Manak Haral. The age of accused Mubashir accused is 16 years at that time and age of said Afrahim is 13 years at time. Muhammad Yar Haral rushed at the spot and advised the complainant not to nominate Mubashir and Afrahim as accused persons as being minor age but you lodged FIR their elder namely Bhai Khan, Mandi and Mumtaz. Then complainant's side approached Dr. Ijaz who was posted at RHC Lalian and also belongs to the complainant and said inspector braderi. The said M.O. Dishonestly had shown the exit wound available on the front of abdomen as entrance wound and falsely implicated us. No bullets was recovered from the eternal examination of Mumtaz deceased from his body."
' In reply to another question "Have you anything else to say", the appellant replied as under:- "I am innocent. Actually the deceased injuries on the hands of one his associate from his backside at close range. The complainant side maneuvered the I.O. And medical officer and got succeeded in figuring this case against me."
9. The appellant did not opt to make statement on oath as his own witness in disproof of the allegations levelled against him as provided under section 340(2), Cr.P.C, however, he produced prescription note of Dr. Arif Khan Jadwan (Ex.DC/1-3) and closed his defence evidence.
10. After conclusion of trial, the appellant was convicted and sentenced as mentioned above by the learned trial Court; hence the instant appeal.
11. Learned counsel for the appellant contends that the appellant has falsely been implicated in this case; that the appellant was not present at the place of occurrence at the relevant time; that both the eyewitnesses Jugday, complainant (P.W.2) and Muhammad Ilyas (P.W.3) are related inter se as well as to the deceased and their statements are pregnant with dishonest improvements in their previous statements; that the prosecution evidence is self discrepant and untrustworthy; that no witness regarding the motive occurrence has been produced by the prosecution; that no crime empty was collected by the Investigation Officer from the place of occurrence; that recovery of .12 bore gun at the instance of the appellant is fake and planted one which even otherwise is not helpful to the prosecution in the absence of report of Forensic Science Laboratory; that the co- accused persons have been acquitted by the learned trial court while disbelieving the same evidence; that injury No,1 attributed to the appellant was in fact an exit wound but the Medical Officer, who also belongs to 'Huai braderi' being in league with complainant party declared the same as entry wound; that this appeal may be accepted, the appellant be acquitted of the charge levelled against him and Murder Reference be answered in the negative.
12. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised by learned counsel for the appellant and maintains that the prosecution witnesses have no mala fide or ill will against the appellant to falsely implicate him in this case; that there are no material improvements or contradictions in the statements of prosecution witnesses; that prosecution case is corroborated by the medical evidence and recovery of .12 bore gun at the instance of appellant; that prosecution has also proved the motive occurrence through both the eye-witnesses; that the learned trial court has rightly sifted the grain from chaff; that the prosecution has fully proved its case beyond any shadow of reasonable doubt; that the appeal in hand may be dismissed and Murder Reference be answered in the affirmative.
13. We have heard the learned counsel for the appellant, learned Deputy Prosecutor General assisted by learned counsel for the complainant and have gone through the record with their able assistance.
14. We have noticed that the occurrence took place at 03:00 p.m. On 25-1-2008 which was reported to the police at 04:00 p.m. And formal FIR was registered at 04:50 p.m., whereas distance between the police station and place of occurrence, as per relevant column of FIR., is nineteen kilo-meters which reflects that the crime report was got recorded without any conscious or deliberate delay.
15. To prove its case against the appellant, the prosecution has examined Jugday, the complainant (P.W.2) and Muhammad Ilyas (P.W.3) as eye-witnesses. The complainant (F'W-2) is real brother of Muhammad Mumtaz (deceased) whereas Muhammad Ilyas (P.W.3) is his nephew. The presence of both Jugday, the complainant (P.W.2) and Muhammad Ilyas (P.W.3) is quite natural as the wall of the house of the complainant (P.W.2) is adjacent to the place where the occurrence took place while the presence of Muhammad Ilyas (P.W.3) in the house of his maternal uncle (P.W.2) and the deceased to accompany him to the house of Manak to offer "Fateha Khawani" is a natural, common and normal phenomenon in our socio cultural background. According to prosecution story, complainant, his brother Muhammad Mumtaz (deceased), Muhammad Ilyas (P.W.3) and Mehdi (given up P.W.) left the house of complainant for "Fateha Khawani" of one Manak, who is maternal uncle (Khaloo) of the complainant and deceased, therefore, presence of complainant as well as P.Ws. At the place of occurrence, in view of such close relationship, is quite natural and appeals to the mind. Moreover, the prosecution version to the extent of "Sata" ceremony of Manak, maternal uncle of complainant as well as deceased, on the fateful day is also admitted by Bhai Khan (appellant) in his statement recorded under section 342 Cr.P.C. The time and place of occurrence is not denied by the defence. Both the eye-witnesses remained consistent and firm regarding the stance qua the role of the appellant Bhai Khan in the episode. Even during the cross- examination, they remained stuck to their version and despite lengthy cross-examination, nothing beneficial to the appellant could be derived by the defence. The statements given by the eye- witnesses Jugday, the complainant (P.W.2) and Muhammad Ilyas (P.W.3) to the extent of the appellant are straightforward, coherent and trustworthy.
16. We have also observed that through Jugday, the complainant (P.W.2) and Muhammad Ilyas (P.W.3), are closely related inter se as well as to the deceased yet they were having no motive to falsely implicate the appellant Bhai Khan in such a case of heinous offence. Mere relationship of the prosecution witnesses with the deceased and inter se is not sufficient to discredit their testimony. In the circumstances of this case, Jugday, the complainant (P.W.2) is a more important and reliable witness than any other could be. It was a broad daylight occurrence and because of previous acquaintance of the parties, question of misidentification does not arise. In this regard, reference is made to the judgment in the case titled as Ijaz Ahmad v. The State (2009 SCM R 99) wherein the Hon'ble Supreme Court of Pakistan was pleased to observe as under:-- "In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him."
So far as the contention raised by the learned counsel for the appellant that the learned trial court while disbelieving the same evidence has acquitted the co-accused Mehdi, Altaf and Mumtaz and the conviction awarded to appellant on the basis of same evidence is not justified, is concerned, we have observed that the learned trial court has rightly sifted the grain from chaff and being satisfied the complainant has not preferred any appeal against acquittal. Moreover we, keeping in view the prevailing social trend that innocent people of the family of the main culprit are implicated falsely to incapacitate them to pursue the case of actual culprit, are of the opinion that all the three acquitted co-accused of the appellant had a case distinguishable from the appellant.
The dimension of injury No 3, attributed to Mumtaz is suggestive of the fact that the same is not caused by a rifle, while Mehdi and Altaf have not been assigned any specific injury and during investigation, Altaf was found empty handed due to which benefit of doubt has been extended to them which is justified as the complainant being satisfied has not challenged the same finding of the learned trial court by filing appeal against their acquittal.
17. As regards the medical evidence produced before the learned trial court, it fully corroborates the ocular account as according to eye-witnesses fire shot made by Bhai Khan (appellant) hit the deceased in his abdomen which is reflected in the post mortem report (Ex.PD) as injury No,1, and as per opinion of Medical Officer Dr. Ejaz Hussain (P.W.4) is an ante mortem firearm injury which also became cause of the unnatural death of the deceased. So far as the contention of learned counsel for appellant that the Medical Officer, who also belongs to 'Haral braderi' and being in league with the complainant party declared the injury No,1 an entry wound which in fact is an exit wound, is concerned; we have observed that throughout the investigation, the defence never challenged the post mortem report before any forum, therefore, we are of the considered opinion that this plea of the defence is an afterthought which does not contain any legal force. The Medical Officer, Dr. Ejaz Hussain (P.W.4) has very clearly observed that injury No,1 contains four wounds. He has also maintained as under:-- "It is correct that I had taken out only two pellets from the body of the deceased...It is correct that injury No,1 contains four wounds. It is correct that only two foreign bodies were recovered from the said wounds..."
' This reflects that injury No,1 that is attributed to appellant was caused by the .12 bore gun and the promptly reported crime report carries the allegation against him of causing injury on the abdominal area of the deceased with .12 bore gun which leads us to hold that the ocular account produced by the prosecution against the appellant is fully corroborated by the medical evidence furnished by the Medical Officer Dr. Ejaz Hussain (P.W.4) who has opined that unnatural death of the deceased Muhammad Mumtaz was caused due to haemorrhage and shock and injury to fatal organs like heart, liver, stomach, intestine etc. Resulting into cardio pulmonary arrest under injuries Nos.l to 3 which were sufficient to cause death in ordinary course of nature.
18. So far as the alleged recovery of .12 bore gun (P-1) at the instance of present Bhai Khan (appellant) is concerned, we have observed that neither any crime empty was collected by the Investigation Officer from the place of occurrence nor the crime weapon, i,e, 12 bore gun (P-1), recovered at the instance of appellant was sent to the Forensic Science Laboratory, so in the absence of report of said Laboratory, the evidence of alleged recovery of crime weapon .12 bore gun (P-1) cannot provide corroboration to the rest of the prosecution case.
19. Coming to the motive set up by the prosecution that a week prior to the occurrence, Muhammad Mumtaz (deceased) on account of playing "Kabaddi" in the ground of school situated near the house of deceased, had a scuffle and exchange of abuses with Bhai Khan (appellant), we have observed that regarding motive part of the evidence Jugday, complainant (P.W.2) is himself discrepant as in his statement under section 154 Cr.P.C. He stated that the motive occurrence took place one week earlier to the instant occurrence, whereas in his examination in chief he stated as under:-- "....And they said today they came to teach us the lesson of a quarrel which was held a day before the occurrence..."
' Moreover, neither the complainant (P.W.2) nor Muhammad Ilyas (P.W.3) are the witnesses of this motive occurrence nor any other person who had witnessed the alleged motive occurrence has been produced by the prosecution to prove the same even during investigation or before learned trial court. So, this leads us to the conclusion that prosecution remained fail to prove the motive as alleged.
20. In the light of above discussion, we have observed that even if we keep the evidence of recovery of crime weapon i,e, .12 bore gun (P-1) and the evidence of motive out of consideration, prosecution has successfully proved its case through consistent and coherent ocular account furnished by Jugday, complainant (P.W.2) and Muhammad Ilyas (P.W.3) which is strongly corroborated by the medical evidence and supported by the investigation. Therefore, we have come to an irresistible conclusion that the learned trial court has rightly convicted the appellant Bhai Khan through the impugned judgment, however, to the extent of quantum of sentence awarded to him, we have noticed mitigating circumstances in his favour. Firstly, the alleged recovery of crime weapon at the instance of the appellant has been declared inconsequential to the prosecution case. Secondly, the prosecution alleged a specific motive in the FIR but remained fail to prove the same and it seems that the real facts regarding the perpetration of murder of Muhammad Mumtaz (deceased) could not be surfaced during the trial, thirdly co-accused persons including Muhammad Mumtaz, who has also been assigned specific injury on the right flank of Muhammad Mumtaz (deceased) has been acquitted by the learned trial court which also caused a dent, though minor, in the prosecution case yet sufficient to incline us to reconsider the quantum of sentence inflicted by the learned trial court and for supra extenuating reasons, we are of the opinion that alternative sentence of imprisonment for life, that is also a legal sentence provided under section 302(b), P.P.C. To the appellant Bhai Khan shall meet the ends of justice. In this regard, we are fortified by an esteemed judgment of the Hon'ble Supreme Court of Pakistan passed in the case titled Israr All v. The State (2007 SCM R 525) wherein the Hon'ble Supreme Court of Pakistan has held as under:-- "...This brings us to the question of sentence more particularly that appellant/convict to whom death has been awarded, since in criminal cases, the question of sentence demands the utmost hear on the part of the Colifts dealing with the life and the liberties of the people and that the accused persons are also entitled to extenuating benefit of doubt on the question of sentence".
' Likewise, in a recent case titled Ghulam Mohy-ud-Din alias Haji Babu and others v. The State (2014 SCM R 1034), the Hon'ble Supreme Court of Pakistan has held that 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 circumstance to adopt alternative course by awarding life imprisonment instead of death sentence.
21. In the light of above discussion, the conviction of Bhai Khan (appellant) under section 302(b), P.P.C. Awarded to him by the learned trial court is maintained, however, his sentence is altered from death to imprisonment for life. The amount of compensation imposed upon him and imprisonment in default thereof is also maintained. He is, however, awarded the benefit of section 382-B of the Code of Criminal Procedure.
22. Consequently with the above modification in the quantum of sentence of Bhai Khan (appellant), Criminal Appeal No,2469 of 2010 is hereby dismissed.
23. Murder Reference No,586 of 2010 is answered in the NEGATIVE and the sentence of death of Bhai Khan (convict) is NOT CONFIRMED.