SYED SHAHBAZ ALI RIZVI, J.---This judgment shall dispose of Criminal Appeal No,445 of 2010 titled as Mohsin Ali v. The State filed by Mohsin Ali, appellant against his conviction and sentence and Murder Reference No,364 of 2011 titled as The State v. Mohsin Ali transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Mohsin Ali, appellant being originted from the same judgment dated 13-2-2010 passed by the learned Additional Sessions Judge, Shorkot, District Jhang in case FIR No,137 dated 18-7-2007, offence under sections 302, 34, P.P.C. Registered at Police Station Shorkot Cantt., District Jhang whereby the appellant was convicted under section 302(b), P.P.C. And was sentenced to death. The appellant was also directed to pay Rs,100,000 as compensation to the legal heirs of the deceased under section 544-A of the Code of Criminal Procedure, 1898 and in default thereof, to undergo simple imprisonment for six months.
2. The facts in brief, as disclosed by the complainant (PW-4) through his application (Exh.PE), on the basis of which, formal FIR Exh.PE/1 was registered, are that he (complainant) is resident of Kot Muhammad Yar Mauza Allah Yar Juta, Teshil Shorkot District Jhang. He and his brother cultivated the agricultural land situated at Mauza Bhango Gharbi belonging to one Mehr Khurshid Bhango where their womenfolk also used to work. Khizer Hayat often molested their womenfolk. On 18-7- 2007 at about 7/8-00, a.m. His brother Muhammad Hanif along with womenfolk went to his fields for cutting the fodder. Khizer Hayat came there and started voicing at their womenfolk on which, hot words and abuses were exchanged between his brother Muhammad Hanif and Khizer Hayat.
Khizer Hayat went away while extending threats of dire consequences. Muhammad Hanif and the womenfolk returned home with the fodder. On the same day, at about 1.00 p.m, he (complainant), his brother Muhammad Hanif and Muhammad Arif were present in their house where Akhtar came and conveyed that Mehr Mohsin had called Muhammad Hanif to converse something. On this, he (complainant) along with his brother Muhammad Hanif, Muhammad Arif and Akhtar proceeded to the dera of Mehr Mohsin. On the way, Muhammad Zafar also joined them and when they reached the dera of Mehr Mohsin, Khizer Hayat and Mehr Mohsin, were sitting on cots there. They also sat on the cots. At about 3-00 p.m, Mehr Mohsin asked Muhammad Hanif to stand up and explain the exchange of abuses with Khizer Hayat. Then Muhammad Hanif stood up and when he began to speak, Mehr Mohsin, in harsh manner, spoke "you being Kammi bark on Sardar" and made two fires of pistol which hit on right side of chest and left bicep of his brother Muhammad Hanif who fell on the ground and succumbed to the injuries. The motive of this occurrence was the abuses exchanged between the parties in the morning of the fateful day.
3. Mohsin Ali, appellant was arrested in this case on 9-8-2007 by Tariq Mehmood SI (PW-10). On 14- 8-2007, Mohsin Ali appellant, while in police custody, after making disclosure, got recovered pistol (P-5) which was taken into possession vide recovery memo. Exh.PK. After completion of the investigation, report under section 173 of Cr.P.C. Was submitted before the learned trial court against the appellant and his co-accused Khizer Hayat (since acquitted).
4. Learned trial court, after observing all the pre-trial codal formalities, indicted the appellant and the co-accused Khizer Hayat (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 ten witnesses. Muhammad Sharif complainant (PW-4) furnished the ocular account of the occurrence.
6. The medical evidence was furnished by Dr. Zafar Iqbal, APMO THQ Hospital Shorkot, (PW-3) who conducted the postmortem examination 'on the dead body of Muhammad Hanif deceased, on 18- 7-2007 at 11.00 p.m. And noted the following injuries:- "1. A fire arm entrance wound 0.8 cm x 0.8 cm on front of right chest, 6.0 cm above right nipple and 7.0 cm from midline. Wound margins were inverted. There was no blackening.
1-A, A fire-arm exit wound 1.0 cm x 0.7 cm on outer side of left arm, upper part. Wound margins were everted"
The medical officer was of the opinion that cause of death in this case was due to haemorrhage and shock and injury to vital organs like heart and both lungs, due to injury No,1 and 1-A which was sufficient to cause death in ordinary course of nature. The injury was ante-mortem in nature caused by firearm. The probable duration between injury and death was immediate while between death and postmortem examination was 6 to 12 hours.
7. Khalid Mehmood, SI (PW-10) is the Investigating Officer of this case. Mukhtar Hussain, Halqa Patwari (PW-1) prepared the scaled site plan of the occurrence whereas, rest of the prosecution witnesses are formal in nature.
8. The prosecution gave up PWs namely Muhammad Arif s/o Mehmood and Zafar son of Waryam, being won over by the appellant and PW Allah Ditta as being unnecessary and after tendering into evidence reports of Chemical Examiner (Exh.PM), Serologist (Exh.PN) and that of Forensic Science Laboratory (Exh.PO), closed the prosecution evidence.
9. Statement of the appellant was recorded under section 342, Cr.P.C. Wherein he negated the allegations and professed his innocence. In reply to a question as to "Why the case against you and why the PWs have deposed against you", the appellant replied as under: - "Except the official witnesses, only complainant appeared and none-else supported his version before the court. He has deposed against me due to suspicion"
10. The appellant neither opted 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. Nor did he produce 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. Learned counsel for the appellant contends that the ocular account was furnished by complainant Muhammad Sharif (PW-4) whereas, two alleged eye witnesses namely Muhammad Arif and Zafar were given up 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 witnesses been produced, they would have deposed against the prosecution stance; that there is conflict between the ocular account and the medical evidence; that the alleged recovery of .9 mm pistol (P-5) at the instance of the appellant and positive report of Forensic Science Laboratory (Exh.PO) are not reliable as the appellant was arrested on 9-8-2007 whereas, the crime empty was sent to the office of Forensic Science Laboratory on 10-8-2007, received in the office on 11-8-2007 i,e, two days after the arrest of the appellant; that motive has also not been proved; that the prosecution has failed to prove its case against the appellant beyond any shadow of reasonable doubt; that this appeal may be accepted and the appellant be acquitted of the charges leveled against him.
13. Conversely, learned Deputy Prosecutor General assisted by the learned counsel for the complainant 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 making firing to the injured/deceased; that the motive stands proved against the appellant which caused the tragic occurrence resulting into the death of Muhammad Hand; that the recovery of pistol stands proved at the instance of the appellant; that the ocular account is fully corroborated by the medical evidence; that the prosecution has proved its case against the appellant through confidence inspiring evidence beyond the shadow of reasonable doubt; that conviction and sentence passed by the learned trial court be maintained and upheld.
14. Having heard the learned counsel for the parties and gone through the record, especially the prosecution evidence, we have noticed that the occurrence of this case took place on 18-7-2007 at 3.00 p.m. The matter was reported through a written application (Exh.PE) by the complainant on the same day at 5-Q0 p.m, at Adda Khumanawala which was converted into FIR (Exh.PE/1) at 5-30 p.m. The distance between the police station and place of occurrence as is mentioned in the relevant column of FIR (Exh.PE/1) was twenty kilometers. This reflects that the matter was reported to the police without any deliberate or conscious delay.
15. The prosecution has produced only Muhammad Sharif, the complainant (PW-4) to prove its case through the ocular account as PWs Muhammad Arif and Zafar were given up being won over.
The time and place of occurrence is not denied. The complainant has remained consistent and firm regarding his stance qua the role of the appellant Mohsin Ali in perpetrating the alleged offence. During cross examination, Muhammad Sharif (PW-4) remained stuck to his stance and despite the lengthy cross-examination, defence could not shake his confidence and nothing beneficial to the appellant could be surfaced. The statement given by the eye-witness Muhammad Sharif (PW-4) is straightforward, coherent and trustworthy. The place of occurrence is the dera of Mohsin Ali appellant as point No,1 shown in the site plan (ExhPA) is the place where the deceased sustained firearm injury in the southern corner of the dera of Mohsin Ali appellant for which, no cogent explanation has been given by the defence during the trial. Muhammad Sharif (PW-4) has sufficiently explained the reason for being present at the scene of occurrence which is probable and acceptable in the prevailing cultural background of our society as the near and dear ones usually accompany the person in a situation that was being faced by the deceased.
16. In this case, we have observed with concern that though Muhammad Sharif (PW-4), the complainant is the real brother of the deceased yet he was having no motive to falsely implicate the appellant Mohsin Ali which has not even been alleged by the defence during the trial. In the circumstances of this case, Muhammad Sharif (PW-4) is a more important and reliable witness than any other could be. It normally cannot be expected from a real brother that he would let the real culprit go scot-free by implicating and giving the role of causing fatal firearm injury to an innocent person. 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."
Even otherwise, substitution, in such like cases, is a rare phenomenon.
As regards the two fires assigned to the appellant by the eyewitness and the availability of the single firearm entry wound on the person of the deceased, we are of the view that firstly, the photographic narration of the seat of each firearm injury is not to be expected normally as travelling with the bullet is beyond the ability of a human eye. Secondly, the appellant is the only person who has been assigned the role of firing during the incident. Hence, this discrepancy is not of the nature that could change the complexion of the case. There is no denial to the fact that firearm injury i,e, injury No,1 available on the right chest of the deceased has been declared ante mortem which led to the unnatural death of the deceased while the other injury available on the left arm of the deceased is an exit wound and in this regard, the fact remains that Mohsin Ali, appellant is the only accused who has been attributed the firearm injury on the person of the deceased.
It is, by now, an established principle of law that the conviction can be based upon the evidence furnished by a solitary witness if it is of unimpeachable character and confidence inspiring.
Moreover, it is not the quantity that matters rather quality of evidence weighs with the courts while evaluating the evidence. Here we are guided by the dictum of law laid down by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Mansha v. The State (2001 SCM R 199) wherein at page 204, it was enunciated as under;-- "6. ...The question as formulated hereinabove as to whether conviction could have been awarded on the basis of solitary statement of a witness has been examined at first instance in the light of Article 17 of the Qanun-e-Shahadat Order, 1984, (section 134 of the Evidence Act, 1872). The said Article is reproduced hereinbelow for ready reference:-- "17. Competence and number of witnesses.---(1) The competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
(2) Unless otherwise provided in any law relating to the Enforcement of Hudood or any other special law--
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant."
7. A bare perusal would reveal that the language as employed in the said Article 17(1)(b) is free from any ambiguity and no scholarly interpretation is required. The provisions as reproduced hereinabove of the said Article would make it abundant clear that particular number of witnesses shall not be required for the proof of any fact meaning thereby that a fact can be proved only by a single witness "it is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality witnesses, case where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of Presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though considerable number of witnesses may be forthcoming to testify to 'the truth of the case for the prosecution. The court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact". (Principles and Digest of the Law of Evidence by M. Monir, page 1458)."
As far as the contention of the learned counsel for the appellant regarding giving up of two eye- witnesses namely Muhammad Arif and Zafar is concerned, the same is repelled, firstly as per prosecution, they were won over and secondly the prosecution has the prerogative to examine their witnesses who are available and considered necessary to prove a fact and in such circumstances, no adverse inference can be drawn against the prosecution in this case. Reliance is respectfully placed on the cases titled "Mazhar All v. The State" (2005 SCM R 523) and "Saeed Khan and 5 others v. The State and another" (2008 SCM R 849). In Mazhar Ali's case supra, the Hon'ble Supreme Court was pleased to hold as under:- "The next plea of the learned counsel for the petitioner that other Advocates whose offices/chambers were adjacent to the office of Mr. Zamurad Khan, Advocate, were not examined as prosecution witness and if they would have been examined they would have not supported the prosecution case. We do not find merit in the said plea as well considering it is the prerogative of the prosecution to examine their witnesses who are considered necessary for its case considering also that onlookers are not prepared to depose in Court about what they saw so as not to risk the animosity of assassins or his partisans and in case the petitioner wanted to examine the Advocates whose offices are said to be adjacent to the place of occurrence, he could have examined them in defence but having failed to avail that option/right he cannot be permitted to raise the said plea."
17. For what has been discussed qua the ocular account furnished by the solitary witness, we are of the considered view that the same is coherent and confidence inspiring which is also fully corroborated by the medical evidence furnished by the Medical Officer Dr. Zafar Iqbal (PW-3) who has opined that unnatural death of the deceased Muhammad Hanif was caused due to haemorrhage and shock and injury to fatal organs like chest and both the lungs which was ante mortem and caused by the firearm weapon.
18. So far as the alleged recovery of pistol P-5 at the instance of present appellant is concerned, we have observed that crime empties and blood stained earth were taken into possession by the Investigating Officer on 18-7-2007 and parcel of blood stained earth was sent to the office of Chemical Examiner for chemical analysis on 27-7-2007 while crime empty P-1 was sent to the Forensic Science Laboratory on 10-8-2007 i,e, one day after the formal arrest of the appellant i,e, on 9-8-2007. No explanation for keeping the parcel of crime empty in Mal Khana for such a long period of about twenty two days and not sending the same along with the parcel of blood stained earth on 27-7-2007 has been given. This fact has rendered the evidence of recovery of pistol doubtful and the positive report of Forensic Science Laboratory (Exh.PO) has lost its evidentiary value. In this regard, reference is made to the esteemed judgment in case of Ali Sher v. The State (2008 SCM R 707) wherein at page 711, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:- "11. The crime-empties having been allegedly found at the place of occurrence and having been retained for so long the police station and having been sent to the F.S.L along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot provide any corroboration to the ocular testimony."
In this view of the matter, the evidence of alleged recovery of crime weapon pistol P-5 cannot provide corroboration to the rest of the prosecution case.
19. The prosecution has set up a specific motive by alleging that co-accused Khizer Hayat (since acquitted) went to the land of the complainant party where he molested the womenfolk of the family of the complainant in presence of deceased upon which, hot words were exchanged between Khizer Hayat and deceased but prosecution has not led any evidence to substantiate this motive. None from the womenfolk of the family of the complainant has been produced during the investigation as well as the trial as is evident from the statement of Tariq Mehmood (PW-10) SI/I.O of this case who has maintained during his cross-examination as under:-- "No woman ever appeared before me to corroborate the version of the motive. I had not visited the place of motive nor I had prepared any site plan of the place of motive... No one from that family came forward in support of the prosecution including in support of motive version..."
While Muhammad Sharif, complainant (PW-4) during his cross examination has stated as under:-- "I had not mentioned the name of women in my application Exh.P.E and I have also not mentioned the number of women. I have also not mentioned my relationship with the said women. I have not mentioned Killa number from where the women were cutting the fodder. The said women were produced during the investigation of this case. It is incorrect to suggest that said women were not produced in the investigation. These women are not PWs in this case..."
So, both the above referred portions of the cross examination of PW-4 and PW-10, have led us to the conclusion that prosecution remained fail to prove the motive part of the occurrence.
20. In the light of above discussion, we have observed that even if we keep the evidence of recovery of crime weapon i,e, pistol P-5 and the evidence' of motive out of consideration, prosecution has successfully proved its case through confidence inspiring ocular account furnished by the solitary witness Muhammad Sharif (PW-4) which is strongly corroborated by the medical evidence and supported by the investigation. Ergo, we have come to an irresistible conclusion that the learned trial court has rightly convicted the appellant Mohsin Ali through the impugned judgment, however, to the extent of quantum of sentence awarded to the appellant Mohsin Ali, 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 Hanif deceased could not be surfaced during the trial. For supra extenuating reasons, we are of the opinion that alternative sentence of imprisonment for life to the appellant Mohsin Ali 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 Ali 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 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".
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 Mohsin Ali (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 Mohsin All (appellant), Criminal Appeal No.445 of 2010 is hereby dismissed.
23. Murder Reference No.364 of 2011 is answered in the NEGATIVE and the sentence of death of Mohsin Ali (convict) is NOT CONFIRMED.
Sentence reduced.