Syed Shahbaz Ali Rizvi, J:- This judgment shall dispose of Criminal Appeal No.124-J of 2011 titled as Farman Ali alias Gulla v. The State filed by the appellant against his conviction and sentence as well as Murder Reference No.164 of 2011 titled as The State v. Farman Ali alias Gulla transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Farman Ali, appellant being arisen out of the same judgment dated 26.03.2011 passed by the learned Sessions Judge, Kasur, in case FIR No.253 dated 21.06.2010, registered under Sections 302, 34 PPC at Police Station Mustafa Abad, District Kausr, whereby the appellant was convicted under section 302(b) PPC and sentenced to death with the direction to pay Rs.100,000/- as compensation to the legal heirs of Muhammad Afzal (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 learned trial court acquitted the co-accused Muhammad Abbas alias Ghori and Mushtaq alias Maikoo while extending them benefit of doubt.
2. The facts as disclosed by Noor Muhammad, complainant (PW-9) in his statement (Ex.PF/1) which culminated into registration of FIR (Ex.PF), are that complainant (PW-9) is resident of near Main Bazar Gali Mian Saeed Akthar Wali Mustaf Abad. On 21.06.2010 at 10:00 a.m. complainant's sons Akbar Ali (PW-7) and Muhammad Afzal (deceased) went to graveyard Baba Maulay Shah to offer "Dua" at the grave of their paternal uncle (Taya) who had just finished "Dua" when the assailants namely Farman alias Gulla (appellant), Muhammad Abbas alias Ghori and Dilawar, whose name was subsequently rectified as Muhammad Mushtaq alias Maikoo (since acquitted) came there with whom brother of Akbar Ali had previous rift as one month prior to the occurrence a quarrel had taken place upon transaction of Rs.1000/- and the same was got patched up, but the assailants had nourished grudge of the same. On the fateful day, in the morning time prior to proceeding for graveyard, conversation was held upon the issue and the assailants flatly refused and chased the complainant's sons to the graveyard. At that time Farman alias Gulla was armed with 'chhuri' whereas Muhammad Abbas alias Ghori and Dialawar were armed with pistols. They started abusing Akbar Ali (PW-7) and his brother Muhammad Afzal (deceased) who forbade them whereupon Farman alias Gulla stated that today Afzal (deceased) should not go alive and pulled out a 'chhuri'. Akbar Ali (PW-7) stated that they did not want quarrel but even then Farman alias Gulla did not desist and stated to his co-accused to catch hold of Akbar Ali. They caught hold of Akbar Ali and put pistol on his temple and threatened him. Meanwhile, Muhammad Ashraf and Rana Toqeer Ahmad also came there.
Accused Muhammad Abbas alias Ghori and Dilawar (since acquitted) also harassed and put them aside and within their view Farman alias Gulla inflicted one after another 'Churri' blows to Muhammad Aflzal who died at the spot, whereas the assailants kept on raising 'lalkaras' that whoever tried to give evidence or initiate legal proceedings against them would also be done to death and fled away.
3. The appellant was arrested in this case on 29.08.2010 by Qurban Ali, SI/Investigation Officer (PW- 11). During physical remand on 02.09.2010, the appellant got recovered 'churri' (P-1) which was taken into possession vide recovery memo (Ex.PA) by the Investigating Officer (PW-11).
4. Learned trial court after observing all the pre-trial codal formalities, charge sheeted the appellant and his co-accused (since acquitted) to which they pleaded not guilty and claimed to be tried.
5. The prosecution, in order to prove its case, produced as many as eleven witnesses. The ocular account, in this case, was furnished by Akbar Ali (PW-7), Muhammad Ashraf (PW-8) and Noor Muhammad, complainant (PW-9).
6. Dr. Hafeez Ullah (PW-5) on 21.06.2010 at 06:00 p.m conducted post mortem examination on the dead body of Muhammad Afzal (deceased) and found following injuries:- "1. An incised wound 41/2 x 11/2 c.m at outer side of left upper arm, middle part (muscle deep).
2. An incised wound 1 1/2 X 1 c.m at inner side of left upper arm, lower part, 9 c.m from left elbow.
3. An incised wound 2 X 1 c.m back of left forearm, middle part, 12 c.m from left wrist joint, bone deep.
4. An incised wound 3 1/2 X 1 c.m at left hypochondriun 10 c.m from umbilicus.
5. An incised wound 3 X 2 c.m at outer side of left thigh, middle part, 11 c.m from left knee joint, muscle deep.
6. An abrasion 1 1/2 X 1/2 c.m at front of neck.
7. An incised wound 1 X 1/2 c.m at left hand ring finger, lower part.
8. An incised wound 3 X 1 c.m at left lumber region, 3c.m from mid line.
9. An abrasion 1 X 1/2 c.m at left side of chest middle party."
The Medical Officer (PW-5) was of the following opinion:- "In my opinion the deceased died due to excessive haemorrhage and shock caused by injuries to mesentery, stomach, small intestine and large intestine under injury No.4 and 8, collectively which were sufficient to cause death in ordinary course of nature. All injuries were ante mortem and caused by sharp edged weapon. Time that elapsed between injuries and death was declared immediately and that between death and post mortem examination was declared within eight hours."
7. Muhammad Mansha, SI (PW-10) and Qurban Ali, SI (PW.11) are the Investigation Officers of this case. Muhammad Nasar Ullah, Draftsman (PW-2) prepared scaled site plan (Ex.PE) of the place of occurrence. Nazir Ahmad C/645 (PW-1) is the witness of recovery of 'chhuri' (P-1) at the instance of Farman Ali alias Gulla (appellant), whereas rest of the witnesses are formal in nature.
8. The prosecution gave up Allah Wasaya PW, being unnecessary as well as Rana Toqeer PW, being won over and after tendering reports of Chemical Examiner (Ex.PQ & Ex.PR) and Serologist (Ex.PS & Ex.PT), closed its evidence.
9. Statement of the appellant was recorded u/s 342 Cr.P.C. wherein he negated the allegations levelled against him and claimed his innocence. In reply to a question as to "why this case against you and why the PWs have deposed against you", Farman Ali alias Gulla (appellant) replied as under:- "It is a false case. The PWs have deposed against me falsely. Muhammad Afzal deceased was an addict, who used to remain in graveyard Maulay Shah where 'Malangs' and other addicts remained present. The deceased might have engaged in some altercation with any of these and was done to death. The alleged occurrence was not witnessed by any PW. I have no nexus with the commission of present occurrence. I am innocent."
10. The appellant neither opted to make statement on oath as his own witnesses in disproof of the allegations levelled against him as provided under Section 340(2) Cr.P.C nor did he adduce any evidence in his defence.
11. After conclusion of trial, the appellant was convicted and sentenced as mentioned above by the learned trial Court; hence the instant appeal.
12. The learned counsel for the appellant inter-alia argues that there is unexplained delay of more than two hours in reporting the matter to the police which is suggestive of deliberation and consultation on the part of complainant; that it was an unseen occurrence and the appellant has falsely been implicated in this case; that the three eye witnesses being closely related to the deceased are interested witnesses; that the independent eyewitness namely Rana Toqeer has been withheld by the prosecution so in this view of the matter, under Article 129(g) of Qanun-e- Shahadat Order, 1984, inference is to be drawn against the prosecution that had the said witness been produced, he would have deposed against the prosecution stance; that the occurrence took place in the month of June on Monday and it does not appeal to a prudent mind that in the days of such scorching heat, the deceased and eyewitnesses would visit the graveyard and that too on a working day; that the grave of Muhammad Siddique (Taya of the deceased) has not been pointed out in the site plans prepared by Muhammad Mansha, SI/Investigation Officer (PW-10) as well as Muhammad Nasar Ullah, Draftsman (PW-2); that the ocular account is not supported by the medical evidence; that there are discrepancies in the statements of eyewitnesses; that the recovery of 'churri' (P-1) on the part of appellant is planted one; that the reports of Chemical Examiner and Serologist are also doubtful because according to these reports, the earth secured from the spot and blood stained 'churri' recovered at the instance of the appellant were sent to the above offices but the reports do not depict that the blood secured from the spot matched with the blood available on the 'churri'; that two co-accused of the appellant have been acquitted by the learned trial court, therefore, on the basis of same evidence conviction cannot be passed against the appellant; that this appeal may be accepted; murder reference submitted by learned trial court may be answered in negative and the appellant be acquitted of the charge levelled against him.
13. Conversely, learned Deputy Prosecutor General vehemently opposes the contentions raised by learned counsel for the appellant and maintains that the appellant is nominated in the FIR with a specific role of causing eight consecutive 'churri' blows to the deceased; that the ocular account furnished by Akbar Ali (PW-7) and Muhammad Ashraf (PW-8) is consistent and free from any dishonest and material improvement; that the eyewitnesses having no motive to falsely implicate the appellant in such a case of heinous nature, cannot be termed as interested witness; that it is the prerogative of the prosecution to produce as many witnesses as it thinks appropriate and it is the quality of evidence and not the quantity that weighs with the Courts; that the case of appellant is on different footing from that of the acquitted co-accused and the rule of falsus in uno falsus in omnibus is not recognized in our judicial system; that the prosecution case is fully corroborated by the medical evidence; that the prosecution case is further corroborated by the recovery of 'churri'
(P-1) at the instance of the appellant; that the prosecution has proved its case against the appellant through confidence inspiring evidence beyond the shadow of reasonable doubt. He further craves that conviction and sentence passed by the learned trial court be maintained and upheld.
14. We have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General and scanned the record with their able assistance.
15. Though, keeping in view the short distance between the place of occurrence and the police station the matter was reported to the police after about two hours of the occurrence yet it becomes of no consequence especially to the extent of the case of appellant because of the fact that the appellant is the only accused who has been assigned the role of causing injuries to the deceased. Even otherwise, the complainant (PW-9) father of the deceased is not the eyewitness of the incident who was summoned after the incident at the place of occurrence and in these peculiar circumstances the lapse of two hours is not to be considered a deliberate or conscious delay.
16. The ocular account in this case was furnished by Akbar Ali (PW-7) and Muhammad Ahsraf (PW- 8) whereas another eyewitness of the occurrence namely Rana Toqeer was given up by the prosecution being won over. Both the eyewitnesses remained consistent in describing the role of the appellant during the occurrence. Despite having undergone the test of cross examination, they remained stuck to their stance and the defence could not shake their confidence as nothing beneficial to the appellant could be surfaced. Though, Akbar Ali (PW-7) and Muhammad Ashraf (PW-8) are real brother and cousin (Tayazad) of the deceased, respectively, yet defence has not even alleged them any motive to falsely implicate the appellant in such a case of heinous nature and keeping in view the above relationship between Muhammad Afzal (deceased) and Akbar Ali (PW-7), the latter's presence at the scene of occurrence is not unusual or something unbelievable, whereas regarding his presence at the place of occurrence, Muhammad Ashraf during his examination in chief as well as in cross examination has justifiably explained the same. Moreover, it is a broad daylight occurrence and both the parties are residents of same vicinity, therefore, question of misidentification of the appellant does not arise. Both the eyewitnesses have not deviated from the stance qua the appellant taken by them on the day of occurrence in their statements recorded by the police under sections 154 and 161 Cr.P.C till their deposition before the learned trial court. The defence could not point out any material contradiction or improvement in their statements with regard to the actual role played by the appellant during the fateful occurrence. Another important aspect observed by this Court is that the defence has not bothered to put questions to both the eyewitnesses regarding the manner and mode of actual occurrence which amounts to admission of prosecution evidence to the extent of the same fact. The defence has not denied the time and place of occurrence.
As far as the contentions raised by the learned counsel for the appellant that both the eyewitnesses are closely related to the deceased and the only independent eyewitness namely Rana Tauqeer was given up by the prosecution, are concerned, keeping in view the relationship of both the eyewitnesses with the deceased it, in the circumstances of the case, cannot be expected from them that they would substitute an innocent person, against whom they have no motive, for the murder of their close one, rather in our opinion they are more reliable witnesses as they would never prefer to let the actual culprit go scot-free by implicating the appellant as a sole person causing seven incised wounds available on the person of the deceased. In this regard, reference is made to the case of 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."
Moreover, the intrinsic worth of the evidence is to be weighed not the source from which it emanates. A reference in this respect may be made to the case of "Muhammad Ahmad (Mahmood Ahmed) and another versus The State" (2010 SCM R 660) wherein, at page 676, the Hon'ble Supreme Court of Pakistan was pleaded to observe as under: - "23. What thus emerges from a survey of the above-quoted and other earlier decisions of this Court is that:---
(a) it is a mistaken notion that reliance could never ever be placed on the uncorroborated testimony of interested witnesses:
(b) looking for corroboration before placing reliance on interested testimony, was only a rule of caution prescribed by the Courts and not a rule of law commanded by the legislature;
(c) that even the said was not an inflexible rule;
(d) the crucial test for accepting or rejecting a piece of evidence was its intrinsic worth and not really the source from which the same emanated; and finally that
(e) corroboration, even if required for the satisfaction of the conscience of the Court, did not always have to come from independent sources of un-impeachable character but could be gathered even from the circumstances available on record.
Moreover, the prosecution witnesses were having no motive to falsely implicate him in this case of heinous nature and being so they cannot be taken as interested witnesses as mere relationship of witnesses inter-se and with the deceased is not sufficient to discredit their testimony and to declare them interested witnesses.
As regards, the other contention of learned counsel for appellant regarding withholding of evidence of Rana Toqeer (given up PW), we are of the considered opinion that the prosecution has produced two eyewitnesses Akbar Ali (PW-7) and Muhammad Asharf (PW-8) who have adequately furnished the ocular account of the incident qua the appellant. Even otherwise, it is a recognized fact in our society that normally people from public feeling insecure do not prefer to become witness against the culprits in such cases of heinous nature to avoid their wrath which commonly results in troubles. It is also relevant to observe that defence never preferred to attempt for the appearance of Rana Tauqeer as a court witness or a defence witness. Hence, if Rana Tauqeer, the eye witness has been given up by the prosecution being won over, no adverse inference, in the circumstances of this case, is to be drawn against the prosecution.
So far as the acquittal of co-accused by the learned trial court while disbelieving the same evidence, is concerned, the rule of falsus in uno falsus in omnibus is not recognized in our judicial system and the Courts are expected to sift grain from the chaff judiciously that has been rightly done in this case by the learned trial court. Moreover, case of co-accused Muhammad Abbas and Muhammad Mushtaq was on different footing from that of the present appellant Farman alias Gulla as no injury on the person of the deceased or the eyewitnesses was attributed to said acquitted co-accused persons, who are even not attributed any motive by the prosecution.
We have further observed that both the eyewitnesses produced by the prosecution, during the cross examination, remained consistent with each other qua the role assigned to the appellant. No material or noticeable discrepancy sufficient to create any doubt regarding the probity of the ocular account to his extent could be surfaced. So, we are of the view that the ocular account furnished by the eyewitnesses against the appellant is coherent and confidence inspiring which is also fully corroborated by the medical evidence furnished by Dr. Hafeez Ullah (PW-5) as during post mortem examination of the deceased seven incised ante mortem injuries caused with sharp edged weapon on the person of the deceased were observed by him and as per opinion of Medical Officer (PW-5), the unnatural death of the deceased occurred due to these injuries.
17. The complainant (PW-7) is also the witness of the motive occurrence that took place between the parties at Adda Mustafa Abad for the dispute of Rs.1000/-existing between the deceased and the appellant. The defence through the tool of cross examination could not shatter this piece of evidence available against the appellant and the prosecution evidence with regard to the motive part of occurrence remained unswerving which persuade us to hold that the prosecution has successfully proved the motive part of occurrence against the appellant.
18. So far as the alleged recovery of blood stained 'churri' (P-1) at the instance of appellant is concerned, we have noticed that the occurrence took place on 21.06.2010 and recovery of 'chhuri'
(P-1) at the instance of appellant stood effected on 02.09.2010, i.e. about more than two months after the occurrence, from an iron box lying in his house which was sent to the Serologist and as per report of Serologist (Ex.PT), it was stained with human blood. It is not believable that the appellant would have saved the crime weapon as it is while having an ample opportunity of washing the same. It is further improbable and unnatural that the appellant kept the 'chhuri' (P-1) safe, so that it could be produced to the Investigation Officer to make the same incriminating evidence against him. Moreover, the detection of human blood on the blade of 'chhuri' (P-1) after such a long period is again not believable. Reliance is respectfully placed on the case of Basharat and another Vs. The State (1995 SCM R 1735) wherein the Hon'ble Supreme Court of Pakistan disbelieved the evidence of blood stained 'chhuri' which was allegedly recovered from the accused after ten days from the occurrence. Relevant part of the said judgment at page No.1739 is reproduced hereunder for ready reference:- "11. The occurrence took place on 20.4.1988. Basharat appellant was arrested on 28.4.1988. The blood-stained Chhuri was allegedly recovered from his house on 30.4.1988. It is not believable that he would have kept blood stained Chhuri intact in his house for ten days when he had sufficient time and opportunity to wash away and clean the blood on it..."
Moreover, the recovery of 'churri' (P-1) is of no consequence if the blood secured from the place of incident is not matched with the human blood detected from the blade of 'churri' (P-1) as without the blood grouping, DNA test or Histo-compatibility positive report, it cannot be said with certainty that 'churri' (P-1) is the weapon used by the appellant during the occurrence but no such report is available in this case. Thus we are of the view that the alleged recovery of 'churri' (P-1) at the instance of appellant is inconsequential and renders no help to the prosecution.
As regards the defence version set by the defence during cross examination of eyewitnesses as well as in statement of appellant recorded by the learned trial court under section 342 Cr.P.C that being addicted to narcotics, Muhammad Afzal (deceased) used to remain in graveyard Maulay Shah where he had been killed by some one else, we have noticed that no independent evidence to prove this stance has been brought forward by the appellant. Even he himself has not preferred to appear for making statement on oath as his own witness as provided under section 340(2)
Cr.P.C to fortify his stance and to rebut the on oath statements of prosecution witnesses. Therefore, we are of the view that the appellant could not prove the defence plea taken by him and the same is brushed aside.
19. In the light of above discussion, having guidance from the esteemed judgment passed by Hon'ble Supreme Court of Pakistan in cases titled Musa v. The State (2008 SCM R 997), Muhammad Nisar v. The State (2006 SCM R 161) and Muhammad Nadeem alias Deemi v. The State (2011 SCM R 872) even if the evidence of recovery of 'churri' (P-1) is kept out of consideration, we are of the unanimous opinion that prosecution has successfully proved its case through confidence inspiring ocular account furnished by the eyewitnesses against the appellant which is corroborated by the medical evidence and the evidence of motive coupled with the result of investigation. Thus, we have come to an irresistible conclusion that the learned trial court has rightly convicted the appellant Farman alias Gulla through the impugned judgment, however, to the extent of quantum of sentence awarded to the appellant, we have noticed mitigating circumstances in his favour.
Firstly, we have declared the recovery of 'churri' (P-1) as inconsequential for the reasons given in paragraph No.18 and secondly, two co-accused of the appellant have been acquitted by the learned trial Court and no appeal against their acquittal has been preferred by the complainant.
Therefore, supra extenuating reasons have persuaded us to hold that alternative sentence of imprisonment for life, a legal sentence under Section 302(b) PPC, to Farman alias Gulla (appellant) 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 Muhammad Riaz and another v. The State and another (2007 SCM R 1413) wherein their Lordships in the august Supreme Court of Pakistan have held as under:- "7. ...No doubt normal penalty for an act of commission of Qatl-i-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."
Similarly, in another case titled Israr Ali v. The State (2007 SCM R 525) the Hon'ble Supreme Court of Pakistan has held as under:- "5. ...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 care on the part of the Court 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...
6. .
7. .
8. It is pertinent to mention here that this provision does not spell out the circumstances in which either of the two punishments is to be awarded and as such it has been left for the superior Courts to lay down guidelines for awarding either of the punishment. Unamended section 302, P.P.C. shows that a Judge is not required to give reasons for imposing death sentence for murder as that was considered to be the proper sentence for murder but if he imposed a lesser punishment he was required to give reasons for it as law laid down by this Court in Piran Ditta' case PLD 1976 SC 300.
Now after the said amendment in section 302, P.P.C. will be little different as a Judge while awarding either of the two sentences will have to give reasons meaning thereby the learned Judge has to award the death penalty or life imprisonment after judicial application of mind with reasons.
The purpose and object of the amendment is based on the principles of Islamic Criminal Law introduced an enforced through Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance VII of 1990) promulgated from time to time since 1990 in view of section 338-F of P.P.C. as in Islam except for just cause and reason, a life cannot be taken away or in other words put to an end."
It is, by now, an established proposition of law that benefit of every extenuating circumstance is to be extended to the accused/appellant as is held by Hon'ble Supreme Court of Pakistan in the case titled Sharaft Ali khan v. The State (2010 SCM R 1205). 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.
20. In the light of above discussion, the conviction of Farman alias Gulla (appellant) under Section 302(b) PPC 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.
21. Consequently with the above modification in the quantum of sentence of Farman alias Gulla (appellant), Criminal Appeal No.124-J of 2011 is hereby dismissed.
22. Murder Reference No.164 of 2011 is answered in the NEGATIVE and the sentence of death of Farman alias Gulla (convict) is NOT CONFIRMED.
23. However, before parting with the judgment we appreciate the industry and zeal reflected from the assistance provided to this Court by the learned counsel for the appellant.