Abdul Sami Khan, J:- Through this appeal under Section 410 Cr.P.C. Khalid (son of Abdul Ghafoor) appellant has called in question vires of the judgment dated 29.06.2007 handed down by learned Additional Sessions Judge, Lahore whereby the appellant was convicted in a private complaint filed by Muhammad Akram complainant (PW-1) for the offences under Sections 302, 324, 34 PPC and was sentenced as under:- Under Section 302(b) PPC to death as Ta'zir with a direction to pay compensation of Rs.500,000/- (Rupees five hundred thousand only) under Section 544-A Cr.P.C. to the legal heirs of the deceased, in default thereof to further undergo 06-months S.I. Under Section 324 PPC to undergo 10-years R.I. alongwith fine of Rs.50,000/-, in default thereof to further undergo 06-months S.I.
The benefit of section 382-B Cr .P.C. was extended to the appellant.
The appellant has filed instant appeal against his conviction and sentences, whereas the learned trial Court has sent Reference under Section 374 Cr.P.C. for confirmation or otherwise of his death sentence, which has been numbered as Murder Reference No.123 of 2008. As both these matters have arisen out of one and the same judgment dated 29.06.2007; therefore, we propose to decide the same together through this single judgment.
2. The facts of prosecution' s case set forth in FIR (Ex.P A/1) chalked out on "fard biyan" of Muhammad Akram complainant are that he and his brothers used to deal with the business of glass wool insolation. One Javed Ahmad (son of Habib Ullah) used to work with Javed Iqbal (son of Abdul Ghafoor). He left the shop and joined the complainant as his employee and also started residing with him at his workplace. On 03.12.2002 at 03:30 p.m. the complainant sent Javed Ahmad to buy some eatable for "Aftari". When he was passing through the street near the house of Javed Iqbal accused, his previous employer , who had nourished grudge in his mind for leaving his employment, said Javed Iqbal accused alongwith his brothers Khalid and Maqsood and one Sarwar waylaid Javed Ahmad and by saying that they would teach him lesson for leaving their job, they started beating him. On hearing his hue and cry, the complainant, his brothers Muhammad Khalid, Muhammad Aslam and Muhammad Basharat also attracted to the spot and forbade the accused from beating Javed Ahmad. In the meanwhile, PW Allah Ditta also came at the spot and he too forbade the accused from beating Javed Ahmad.
On seeing the complainant and his brothers, the accused started raising "lalkara" by stating that they would not leave them alive. Accused Javed Iqbal fired at Muhammad Khalid, brother of the complainant, hitting him on front of chest and he fell on the ground. Accused Khalid made fire shot, which hit Muhammad Aslam on his left thigh and he fell on the ground. Accused Maqsood made fire shots at Basharat, hitting him on both thighs and he too fell on the ground and then Sarwar accused made fire shots, out of which one fire shot hit Basharat Ali. On hearing hue and cry of the complainant party , many people gathered at the spot and on seeing them , the accused fled away by making aeria l firing and raising "lalkara". The complainant alongwith Allah Ditta were shifting injured persons to the hospital, but Muhammad Khalid and Muhammad Aslam succumbed to the injuries in the way , whereas Muhammad Basharat was admitted in the hospital for his treatment.
3. After registration of the FIR, investigation of the case was conducted by Abdul Latif Inspector/I.O., Muhammad Saeed S.I. and Muhammad Akbar , D.S.P . and after completion of investigation, report under section 173 Cr.P.C was prepared and submitted in the Court. However , the complainant of the FIR was dissatisfied with the investigation and resultantly he filed private complaint under Sections 302, 324, 34 PPC and after the usual formalities, the accused were summoned to face the trial. At the commencement of trial, learned trial court after supplying copies of the documents required under Section 265-C Cr.P.C. to the appellant and his co-accused, framed charge against them on 08.03.2004 under Sections 302, 324, 34 PPC to which they pleaded not guilty and claimed trial. To substantiate its version at the trial, the prosecution produced as many as eleven witnesses before the learned trial court and the learned trial court also recorded statements of eight court witnesses . Ocular account was furnished by Muhammad Akram complainant (PW-1) and Muhammad Basharat injured (PW-2). Constables Muhammad Khalid (PW-3) and Muhammad Akbar (PW-7) are the witnesses of recovery of weapon of offence from the appellant, while Dr.Muhammad Zafar (PW-8) and Dr. Fakhar Uzman (PW-9) furnished medical evidence. Abdul Latif Inspector (CW-1) and Muhammad Akbar , DSP (CW-6) testified about the investigation conducted by them, while rest of the prosecution as well as court witnesses are almost formal in nature. After placing on record the reports of Chemical Examiner (Ex.CA & Ex.CB), reports of Serologist (Ex.CA/1 & Ex.CB/1) and the report of Forensic Science Laboratory (Ex.CC), the prosecution evidence was closed.
4. In his statement recorded by the learned trial Court under Section 342 Cr.P.C. the appellant denied and controverted all the allegations leveled against him by the prosecution and professed innocence. In response to a question that "why this case against you and why the PWs have deposed against you?, he replied as under:- "The case was got registered by complainant and thereafter he filed a direct complaint distorting/twisting the actual facts. In fact, the complainant party attacked us in our house and Khalid deceased tried to snatch pump action and during the scuffle that went off and hit Aslam deceased. The PWs being real brothers of deceased persons have deposed falsely in order to strengthen the prosecution case."
He neither opted to make statement on oath as provided under Section 340(2) Cr.P.C. nor produced any evidence in his defence.
5. Upon conclusion of the trial, learne d trial Court, after finding the prosecution' s case against the appellant to have been proved beyond reasonable doubt, conv icted and sentenced him as mentioned and detailed in paragraph No.1 of this judgment. Hence, the present appeal and connected murder reference before us.
6. Learned counsel for the appellant, in support of this appeal, contends that the FIR was lodged after due deliberation and consultation and also after fabricating a totally false and fictitious story; two co-accused of the appellant namely Maqsood and Sarwar , who have been assigned specific role by the complainant in the FIR as well as in private complaint were acquitted by the learned trial court and in the said impugned judgment, the learned trial Court has not relied upon the statements of eye witnesses, so once the witnesses were held perjures to the extent of co-accused, then their testimonies could have not been relied upon against the appellant; the PWs are closely related to each other as well as to the deceased, therefore, their testimonies should not have been accepted without corroboration from some independent and unimpeachable source, which is not forthcoming in this case; the eye witnesses have improved their statements, so their testimonies cannot be relied upon to maintain the conviction of the appellant; there is conflict between the ocular account and medical evidence and the evidence produced by the prosecution suffers from material irregularities; the recovery of weapons of offence was planted upon the appellant in order to strengthen the prosecution case and the same has no supportive value to the case of the prosecuti on; the motive also remained far from being proved; the prosecution case is full of glaring defects, legal infirmities and material irregularities and the impugned judgment, to the extent of the appellant, has been recorded without careful and proper appreciation of relevant facts and circums tances of the case and also the evidence so produced, therefore, the same is liable to be set aside.
7. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions raised by learned counsel for the appellant and submits that the matter was reported to the police without any element of deliberation and consultation; the appellant is well nominated in the promptly lodged FIR as well as in the private complaint with specific role; the occurrence took place in broad daylight, parties were known to each other and there was no chance of mistaken identity of the appellant; the presence of the deceased, injured PWs and the appellant is admitted by the defence; motive has also been proved by the prosecution; prosecution has successfully proved its version through the statements of Muhammad Akram complainant (PW-1) and Muhammad Basharat injured (PW-2) and apart from confidence inspiring evidence of the eye witnesses, there is strong corroborative evidence on the file in the shape of weapon of offence recovered on the point ing out of appellant, reports of Chemical Examiner (Ex.CA & Ex.CB), reports of Serologist (Ex.CA/1 & Ex.CB/1) and most importantly positive report of the Forensic Science Laboratory (Ex.CC). It is submitted that the appellant has acted in gruesome and brutal manner at the time of occurrence, therefore, he does not deserve any leniency regarding the quantum of his sentences. Learned counsel lastly submits that the learned trial Court has rightly convicted and sentenced the appellant, hence, prays for maintaining the conviction and sentences awarded to him.
8. We have considered the arguments advanced by learned counsel for the appellant, learned Deputy Prosecutor General as well as learned counsel for the complainant and have also gone through the entire record with their valuable assistance.
9. A bare perusal of FIR (Ex.P A/1) reveals that the incident in the present case took place on 03.12.2002 at 03:30 p.m. and the matter was reported to the police by Muhammad Akram complainant (PW-1) through "fard biyan" (Ex.P A), recorded by Arshad Ali S.I. at 05:50 p.m. Consequently , FIR (Ex.P A/1) was chalked out on the same day at 06:50 p.m. which is situated at a distance of 3 kilometers from the place of occurrence. Although there is a delay of two hours and twenty minutes in reporting the matter to the police, yet the fact remains that after the occurrence, the deceased Muhammad Khalid and Muhammad Aslam as well as injured Muhammad Basharat (PW-2) were shifted by Muhammad Akram complainant (PW-1) to Mayo Hospital, Lahore, because, saving life of the injured is always prime consideration. It has also established on record that both the deceased succumbed to the injuries in the way and Muhammad Basharat injured (PW-2) was admitted by the doctor in the hospital for his medical treatment. So, taking into consideration the above facts of the case, we are of the view that delay of two hours, twenty minutes in reporting the matter to the police is natural and is not fatal to the case of prosecution especially under the circumstances when the witnesses were not cross-examined by the defence on the point of deliberation and consultation and as such we are of the view that no considerable time was consumed by the complainant to consult or deliberate over the matter rather the matter had been reported in this case with sufficient promptitude which fact has convinced us that no extraneous delay occurred in lodging the FIR.
10. Before elaborating the prosecution case in the light of material available on the surface of record, we would like to observe here that the date, time and place of occurrence as well as the presence of deceased persons Muhammad Khalid and Muhammad Aslam, Muhammad Basharat injured (PW-2) and Khalid (son of Abdul Ghafoor) appellant all are admitted facts in this case. Now we would thrash out other facts and circumstances of the case. According to the case of complainant as incorporated in FIR (Ex.P A/1), private complaint (Ex.P A) and in the statements of eye witnesses recorded under Section 161 Cr.P.C. Khalid appellant has been burdened with the role of causing firearm injury on left thigh of Muhammad Aslam deceased, brother of the complainant. To discharge the burden of proving the allegation leveled against the appellant, prosecution has examined Muhammad Akram complainant (PW-1) and Muhammad Basharat injured (PW-2). Perusal of their statements reveals that they have reproduced the same facts and allegations as contained in FIR (Ex.P A/1) as well as in private complaint (Ex.P A). It has been observed by us that the above mentioned prosecution witnesses have fully supported the prosecution version to the extent of Khalid appellant and the prosecution witnesses are consistent on material aspects. Notwithstanding the fact that these eye-witnesses were subjected to lengthy cross-examination, the ocular account remained un-shattered and the defence could not extract anything favourable from the mouths of eye witnesses to create doubt about their credence. So far as the case to the extent of Khalid appellant is concerned, the trustworthy and reliable evidence of eye witnesses not only inspired the confidence of learned trial court, but the same has also satisfied our conscious to believe upon them and we have not been able to locate any infirmity , inconsistency , material contradiction or omission in the statements of Muhammad Akram complainant (PW-1) and Muhammad Basharat injured (PW-2) rather both had unanimously explained all material points i.e. time, date and place of occurrence and manner in which the appellant murdered Muhammad Aslam deceased. Even otherwise, the appellant also impliedly admits his role in the commission of alleged occurrence, because, he did not controvert the allegation of firing at Muhammad Aslam deceased during the occurrence. After careful perusal of the ocular account, we are of the definite view that it inspires confidence and the same to the extent of Khalid appellant is palpably proved beyond any reasonable shadow of doubt.
11. Coming to medical evidence, the same is absolutely in line with the ocular account as far as the appellant is concerned. We have observed that Muhamm ad Akram complainant (PW-1) and Muhamm ad Basharat injured (PW-2) have unanimously stated that the appellant caused firearm injury on left thigh of Muhammad Aslam deceased and according to Dr.Fakhar Uzman (PW -9), Muhammad Aslam deceased had sustained the following injury:- "A lacerated gaping wound of 8.5 X 6 cm incised on left upper part of thigh 22.5 cm above left knee joint and 18 cm below left anterior superior iliac spine."
According to the opinion of doctor (PW-9), the above injury was caused by firearm weapon and it became the reason for the death of Muhammad Aslam. It has also come on record through the statement of Dr. Fakhar Uzman (PW-9) that postmortem examination on the dead body of Muhammad Aslam deceased was conducted on 04.12.2002 at 02:00 p.m., probable duration between the injuries and death was 10 to 15 minutes and the same between death and postmortem examination was 12 to 24 hours. On the other hand, Khalid appellant categorically admitted during trial and even in his statement under Section 342 Cr.P.C. that he was armed with pump action at the time of occurrence. So, the medical evidence has fully tallied with the date and time of occurrence, locale of injury sustaine d by Muhammad Aslam deceased and the kind of weapon used by the appellant during the incident. Thus, we have come to the stalwart conclusion that medical evidence has provided full support to the ocular account.
12. As to the recovery of pump action gun 12-bore effected at the instance of the appellant, we have observed that an empty (CW1/5) of 12 bore was collected by the investigating officer during spot inspection on 03.12.2002, the same was taken into possession vide memo Ex.CW -1/F and was received in the Forensic Science Laboratory on 14.12.2002. The appellant was arrested in connection with this case on 20.01.2003 and on 24.01.2003, he led to the recovery of weapon of offence i.e. pump action gun 12 bore from his house. So, positive report of Forensic Science Laboratory regarding the matching of empty (CW1/5) with the weapon recovered on the pointing out of the appellant has provided sufficient independent corroboration to the case of the prosecution and it is a strong piece of evidence against him especially when the empty was sent to the Forensic Science Laboratory much prior to his arrest.
13. According to FIR (Ex.P A/1) as well as private complaint (Ex.P A), Javed Ahmad (son of Habib Ullah), who used to work with Javed Iqbal (proclaimed offender), left his shop and joined the complainant as his employee and also started residing with him at his workplace. Javed Iqbal accused, his previous employer , had nourished grudge in his mind for leaving his employment and according to the prosecution version, the above facts become the motive behind the occurrence. Although Muhammad Akram complainant (PW-1) and Muhammad Basharat injured (PW-2) have reiterated before the learned trial Court about the motive, yet we have reasons to disbelieve the same. We have observed that motive was exclusively between Javed Ahmad (son of Habib Ullah) and Javed Iqbal (proclaimed offender), but the prosecution did not produce him before the learned trial Court and by not producing him, it has withheld the best evidence available in support of motive part of its case. Moreover , the prosecution could not establish that said Javed Ahmad was tortured by the appellant and his co-accused during the occurrence and on the contrary , it is proved that three real brothers of Muhammad Akram complainant (PW-1) sustained serious firearm injuries during the incident, out of whom, two brothers i.e. Muhammad Khalid and Muhammad Aslam lost their lives as a result of injuries sustained by them. It seems that something else had happened, which prompted the complainant, injured and deceased persons to proceed towards the place of occurrence, which is situated in front of house of the appellant, so the motive in this case is not proved and it remained shrouded in mystery .
14. During arguments, learned counsel for the appellant has vehemently stress ed that Maqsood and Sarwar co- accused were acquitted on the basis of same evidence which has been relied upon by learned trial Court while convicting and sentencing the appellant, the appeal against their acquittal has also been dismissed by this Court and the judgment of the learned trial Court to the extent of their acquittal has attained finality . We have observed that the learned trial Court while pronouncing acquittal of Maqsood and Sarwa r co-accused has given separate reasons on the basis of which it came to the conclusion that their involvement in the instant case is doubtful in nature. We may observ e here that Hon'ble Supreme Court of Pakistan in its various judgments has already held that the doctrine of "falsus in uno falsus in omnibus" (false in one thing, false in all), is not applicable in prevalent system of criminal administration of justice.
Similarly , there is no rule having universally applicable that where some accused were not found guilty , other accused would ipso facto stand acquitted, rather it is the primary duty of the Court to sift the grain from chaff. In this regard, reliance can be placed on the case titled "Samano v. State" (1973 SCMR 162). Similarly , there is no cavil to the proposition that the grain has to be sifted from the chaff in each case, in the light of its own peculiar circumstances . In this regard, guidance is sought from the case titled "Riaz Hussain v. The State" (2001 SCMR 177). We would also like to refer to the case of "Ghulam Husain Soomro v. The State" (PLD 2007 SC 71), wherein Hon'ble Supreme Court of Pakistan was pleased to hold as under:- "We may not be misunderstood to mean that an innocent person wrongly roped by prosecution or falsely involved by an unscrupulous investigating officer should be unreasonably dealt with or made escape goat but the Courts must maintain balance while arriving at the truth or falsehood of the matter by sifting the grain from the chaff. This may be treated as a rule of caution and circumspection."
15. Although, prosecution has failed to prove the motive part of the incident, yet there is sufficient incriminating material in the shape of statements of PW-1 Muhammad Akram complainant, PW-2 Muhammad Basharat injured and PW-9 Dr.Fakhar Uzman, duly corroborated by the recovery of weapon of offence i.e. pump action gun 12 bore coupled with positive report of Forensic Science Laboratory (Ex.CC) to maintain conviction of the appellant on the murder charge of Muhammad Aslam deceased, which is hereby maintained. However at the same time, we are not inclined to maintain the sentence of death awarded by the learned trial Court to the appellant, because, we have found certain extenuating circumstances, which suggest that it is not a case of capital sentence for the following reasons:-
1. The motive specifically alleged by the prosecution in FIR (Ex.P A/1) as well as in private complaint (Ex.P A) has not been proved. It is settled law that when the prosecution sets up a specific motive in the FIR, then it is the duty of prosecution to prove the same through reliable and confidence inspiring evidence and non-proving of motive can be taken as a mitigating circumstance in favour of the appellant. Reliance in this regard can be placed upon the case of "Hasil Khan vs. The State"
(2012 SCMR 1936 ).
2. The appellant had inflicted single firearm injury on the left thigh of the deceased and in spite of having ample opportunity , he did not repeat the same. In such like circu mstances the Hon'ble Supreme Court of Pakistan has held that non-repetition of injury by the assailant on the person of deceased demonstrate an implied impression that he has not taken unfair advantage of his position as an armed person at the spot rather despite of having ample opportunity , he has refrained himself from doing so and this circumstance can be taken as an extenuating/ mitigati ng circumstance and the same is sufficient to avoid extreme penalty of death to the assailant, therefore, lesser sentence of imprisonment for life would serve the interests of justice well in such circums tance. Reliance is placed on the cases of "Qurban Ali v. Sheroo Machi and another" ( 1991 SCMR 2339 ) and "Muhammad Arshad and 2 others v . State" (PLJ 1996 SC 746).
16. We would also like to observe here that the accused is entitled for the benefit of every extenuating circumstance while deciding question of his sentence. Reliance is placed upon "Mir Muhammad alias Miro v. The State" (2009 SCMR 1188). In another judgment reported as "Ansar Ahmad Khan Barki v. The State and another" (1993 SCMR 1660 ), the Hon'ble Supreme Court of Pakistan has held that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to an accused for awarding normal penalty of death. We have also fortified our view qua the quantum of sentence from the case reported as "Sharafat Ali Khan v. The State" (2010 SCMR 1205 ), wherein the Hon'ble Supreme Court has observed as under:- "In Muhammad Riaz and another v. The State (2007 SCMR 1413 ), while considering the penalty for an act of commission of qatl-e-amd it was observed "No doubt, normal penalty for an act of commission of qatl-e-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.
Reference in the context may also be made to Iftikhar Ahmad Khan vs. Asghar Khan and another ( 2009 SCMR 502 )."
The Hon'ble Supreme Court of Pakistan in a recent judgment reported as "Haji Muhammad Sadiq v. Liaquat Ali and others"
(2014 SCMR 1034 ) has held as under :- "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 obliga tion 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 asses sing the evidence, facts and circumstances of a particular murder case, under which it was committed.
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."
17. For what has been discussed abov e, taking guidance from the afore-quoted pronouncements of Hon'ble Supreme Court of Pakistan, the sentence of death awarded to Khalid (son of Abdul Ghafoor) appellant for the murder of Muhammad Aslam deceased is converted into imprisonment for life under Section 302(b) PPC. The amount of compensation of Rs.5,00,000/- under Section 544-A Cr.P.C. as ordered by the learned trial Court and imprisonment of six months S.I. in default thereof shall remain intact. So far as the conviction and sentence of appellant on the charge of offence under Section 324 PPC is concerned, the facts and circumstances of the case clearly indicate that it was not a preplanned and premeditated incident and the learned trial Court has also observed that the incident was the result of sudden flare.
Moreover , it was the complainant party , who proceeded towards the place of occurrence i.e. in front of house of the appellant. In such situation, we are of the considered view that it was a case of sudden altercation and provisions of Section 34 PPC do not attract to the case in hands, hence, every accused is liable for his own act done during the occurrence.
Since, no injury on the person of Muhammad Basharat injured (PW-2) has been attribu ted to Khalid appellant, so in this scenario, his conviction and sentence under Section 324 PPC appears to be unjustified, the same is accordingly set aside by this Court. The benefit of Section 382-B Cr .P.C. shall, however , be extended to the appellant.
18. With the above modification in the conviction and sentences of the appellant, this appeal stands dismissed. Death sentence is not confirmed and Murder Reference is answered in negative.