' MANZOOR AHMAD MALIK, J.---This judgment shall decide Criminal Appeal No,2377 of 2010 titled as "Mubasher and another v. The State" and Murder Reference No,516 of 2010 titled as "The State v.
Mubasher" as both these matters have arisen out of the same case i,e, FIR No,112 dated 10-4-2009, offence under sections 302, 324 and 34, P.P.C. Registered at Police Station Saddar Kamalia, District Toba Tek Singh.
2. Mubasher and Sarfraz (appellants) have filed Criminal Appeal No,2377 of 2010 against the judgment dated 22-9-2010, whereby, after having been tried by the learned Additional Sessions Judge, Kamalia in the above mentioned case, they were convicted and sentenced as under:- "51. ...Therefore, I hold the accused Mubasher son of Shah Nawaz guilty of murder of Muzammal Hussain deceased and convict the accused Mubasher under section 302(b), P.P.C. And sentenced him to Death as Tazir. He shall be hanged by neck till he be dead subject to confirmation by the Hon'ble Lahore High Court, Lahore and I also convict the accused under sections 324 and 337-F.3 P.P.C. For making murderous assault on the person of Aurang-zaib (injured P.W.) and sentence him for 5 years' R.I. And a fine of Rs,20,000 and also pay DAMAN to Aurangzaib injured. In case of default in payment of fine he shall undergo 6 months S.I. While accused Sarfraz son of Bahadar is also held guilty of murder of Muzammal Hussain along with co-accused Mubasher as with his common intention he accompanied the main culprit, so in the peculiar circumstances, I convict Sarfraz accused under section 302(b) read with section 34, P.P.C. And sentenced him to Imprisonment for Life as `TAZIR'.
52. Each accused shall also pay Rs,One Lac separately to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C., in default, each accused shall further undergo 6 months S.I. The benefit of section 382-B, Cr.P.C., is however, given to both the accused persons."
' The learned trial court has sent Murder Reference No,516 of 2010 for confirmation or otherwise of the sentence of death awarded to Mubasher (appellant) as required under section 374, Code of Criminal Procedure.
3. Precisely, facts of the case, as contained in F.I.R. (Exh.PA/1) registered on the basis of statement (Exh.PA) of Muhammad Yasin complainant (P.W.10) are that he was resident of Mauza Burhan Kamalia and a labourer. On 10-4-2009, at about 05:30 p.m. Muzammal Hussain the brother of complainant along with Aurangzaib son of Sajwar caste Wattoo resident of same village were going to Government Middle School Sheikh Burhan for playing volleyball and when they reached the main gate of the school, they were ambushed by Mubashar (appellant son of Master Shah Nawaz caste Chishti and Sarfraz (appellant son of Bahadur Ali caste Tarkhan residents of same village, as they were already hidden inside the gate of the school. Mubasher (appellant) who was armed with 30 bore pistol, made two successive fire shots out of which, one fire shot hit Muzammal Hussain in front of his throat whereas second fire hit Aurangzeb at his left arm. Complainant along with Umar Daraz son of Nazir Ahmed, Ghulam Abbas son of Ghulam caste Bhatti residents of the same village while witnessing the occurrence nearby, reached at the place of occurrence. On seeing the complainant's side, the assailants decamped towards Syed Musa Road on a motorcycle. The complainant's side attended Muzammal Hussain, who had fallen on the ground but due to firearm injury, he had succumbed to the injuries.
4. The motive behind the occurrence as alleged in the FIR was that two days prior to the occurrence, an altercation had taken place between complainant's brother Muzammal Hussain (deceased) and Mubasher (appellant) and due to that grudge, Mubasher and Sarfraz (appellants) in furtherance of their common intention, murdered complainant's brother namely Muzammal Hussain (deceased) and caused injuries to Aurangzaib.
5. On 10-4-2009, Muhammad Suleman S.I/Investigating Officer (P.W.12) was posted at Police Station Saddar Kamalia and on the same day when he was on patrol duty at Bypass Chowk Mull Fatiana Road when Muhammad Yasin complainant (P.W.10) appeared before him and made his statement (Exh.PA) and he sent the same through Muhammad Ajmal 196/C to the Police Station Saddar Kamalia for registration of formal FIR. Thereafter, he proceeded to the place of occurrence where ead body of Muzammal Hussain (deceased) was lying. He inspected the dead body, prepared injury statement (Exh.PD), inquest report (Exh.PE) and sent the dead body to Tehsil Headquarters Hospital, Kamalia through Iftikhar Ahmad 590/C for postmortem examination. He inspected the place of occurrence, prepared rough site plan (Exh.PL) and collected blood stained earth and made it into a sealed parcel which was taken into possession vide recovery memo (Exh.PM). He drafted injury statement (Exh.PG) of Aurangzaib injured (P.W.11) and sent him for medical examination through Rehman Zaheer 963/C. After postmortem examination, Iftikhar Ahmad 590/C handed over the I.O. The last worn clothes of Muzammal Hussain (deceased) viz shalwar (P.1), shirt (P.2) and bunyan (P.3) which were taken into possession vide recovery memo (Exh.PH). On 18-4- 2009, Muhammad Yasin Patwari (P.W.3) prepared scaled site plans (Exh.PB and Exh.PB/1) and handed over to him on 20-4-2009. On 27-4-2009, he arrested Mubasher and Sarfraz (appellants).
On 29-4-2009, during investigation, Sarfraz (appellant) made disclosure and allegedly led to the recovery of motorcycle which was taken into possession vide recovery memo (Exh.PK). On 27-4- 2009, Mubasher (appellant) made disclosure and allegedly led to the recovery of .30 bore pistol (P.4) along with three live bullets (Exh.P.5/1-3) and the same were taken into possession vide recovery memo (Exh.PJ). Thereafter, Mubasher and Sarfraz (appellants) were sent to judicial lockup. After completion of investigation, a report under Section 173 Code of Criminal Procedure was prepared and sent to the Court of competent jurisdiction.
6. The appellants were summoned by the learned Additional Sessions Judge, Kamalia, to face the trial. Copies of the documents, as required under section 265-C, Code of Criminal Procedure, were provided to them and formal charge under sections 302, 324 and 34, P.P.C. Was framed against them on 1-7-2009 to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as twelve witnesses, in all. Ocular account was furnished by Muhammad Yasin complainant (P.W.10) and Aurangzaib (P.W.11). Medical evidence was furnished by Dr. Shaukat Ali (P.W.6) who conducted postmortem examination on the dead body of Muzammal Hussain (deceased) and by Dr. Jawad Ahmad Khan (P.W.7) who medically examined Aurangzaib injured (P.W.11). Manzoor Hussain (P.W.9) witnessed the recovery of .30 bore pistol (P.4) allegedly at the instance of Mubasher (appellant). He also witnessed the recovery of motorcycle allegedly at the instance of Sarfraz (appellant). Muhammad Suleman S.I. (P.W.12) investigated this case and while appearing in the witness box, narrated the various steps taken by him during the course of investigation. Rest of the witnesses are formal in nature. Learned Deputy District Public Prosecutor gave up P.W. Nasir Ahmad son of Muhammad Fazil being unnecessary vide statement dated 7-1-2010. Learned Assistant District Public Prosecutor gave up P.W. Karam Sher being unnecessary vide statement dated 15-4-2010. Learned Deputy District Public Prosecutor gave up P.Ws. Umar Daraz and Ghulam Abbas being unnecessary vide statement 'dated 24-6-2010. After tendering in evidence report of Chemical Examiner (Exh.PQ) and report of Serologist (Exh.PR) learned Deputy District Public Prosecutor closed the case of prosecution vide statement dated 5- 8-2010. Statements of the appellants were recorded under section 342, Code of Criminal Procedure on 7-8-2010 wherein they refuted all the prosecution allegations levelled against them. To a question as to why this case against him and why the prosecution witnesses had deposed against him, Mubasher (appellant) replied as under:-- "The case is false. The P.Ws. Are related inerse who have deposed falsely on the instance of complainant the real brother of deceased."
' To another question had he anything else to say, Mubasher (appellant) replied as under:- "I am innocent. The case is based on a false and concocted story made by the complainant party in connivance with the local police. The I.O. Was fully in league with the complainant party and had avoided to record the statements of the defence witnesses appeared many a times before him during the investigation of this case. In fact prior to the alleged occurrence real uncle of deceased Nazir Ahmed got a case registered against me and others for assaulting his wife Mst. Mubeen Bibi.
Muzammal Hussain deceased got a case registered under section 18 Z.HO against me, Tariq Farooq Chishti etc, assaulting his two sisters, but above mentioned cases were cancelled during the investigation. So Muzammal Hussain deceased nursed grudge against me and had been threatening us to avenge the insult of the woman folk of his family, by attempting to commit rape with my wife and other girls of my family. The ladies of my family avoided to get outside their houses alone being scared of deceased. On the fateful day my wife Mst. Mubeen Bibi accompanied by my mother Mst. Mumtaz Begum went to Adda Said Mousa to fetch medicine. I also went after them. On our way back to our village I stopped at a shop on the road side to purchase grocery articles, my mother and wife were leading to village and when they reached near the gate of the school, Muzammal Hussain deceased came out from the gate where he had laid in ambush and was waiting for the arrival of our ladies. The deceased caught hold of my wife from her arms and tried to drag her inside the school premises. On hue and cry of my wife and my mother I rushed to the spot and tried to intervene but the deceased shouted that he would avenge the insult of his family by raping Mst. Mubeen Bibi and continued to drag her. Under grave and sudden provocation, loosing self control and in order to defend the charicity of my wife I fired at the deceased. Aurangzaib P.W. Also reached there and intervened who also received a fire shot by chance. None of the P.Ws. Except Aurangzaib was present at the spot. Sarfraz accused was also not present there. He was falsely involved in this case due to some ulterior motive."
' To a question as to why this case against him and why the prosecution witnesses had deposed against him, Sarfraz (appellant) replied as under:-- "The case is false. The P.Ws. Have deposed falsely on the instance of complainant being closely related inerse."
' The appellants did not appear as their own witnesses in disproof of the prosecution allegations as provided under section 340(2) Code of Criminal Procedure. Sarfraz (appellant) did not produce any evidence in his defence. However, Mubashar (appellant) got 'examined his wife Robina Mubasher as DW.1 in his defence who stated as under:-- "7 years ago I was married to Mubasher accused present in court. We have three issues from the wedlock. Two years before, Muzammal deceased got a case registered against my husband Mubasher accused for assaulting his sisters which was cancelled. Muzammal threatened avenge his insult. On 10-4-2009 I was ill being pregnant in advance stage and has gone to fetch medicines from the doctor along with my husband Mubasher accused and mother in law Mst. Mumtaz Bibi from Adda Pull Said Moosa. When we reached back at about 5.00 pm. In the evening on foot in front of main Gate of Village School, my husband Mubasher straight back to purchase Cigarettes etc, from the shop. The moment I and my mother in law Mumtaz Bibi reached in front of the Gate of Village school the deceased Muzammal suddenly emerged out of the school and tried to pull me inside the school by holding my arm. I and Mumtaz Bibi raised hue and cry attracting my husband Mubasher to the spot. Mubasher accused asked Muzammal deceased to leave me and get aside.
The deceased did not abandon me and said that he would avenge the insult. In order to save my honour Mubasher accused started fire at the deceased. One of the fire shot had hit a person standing nearby. Mubasher accused took me and my mother in law to the house whereas, Muzammal had fallen injured. We became aware that Muzammal had expired, then we took a Dala and went to Ahmed Pur Sial. After 2/3 days Arshad elder brother of Mubasher accused brought us to the P.S. And produced Mubasher accused. We narrated the true version to the police but they did not listen to us by saying that the case had already been registered. We approached DPO, T.T.
Singh who send us to the P.S. And said that he had contacted the Police Station on telephone. We again contacted the P.S. But no body was ready to listen us. Concocted version was fabricated by the complainant party and my husband was falsely involved in this case."
7.After conclusion of the trial, the learned trial court convicted and sentenced both the appellants as detailed above. Hence, this appeal and murder reference.
8.Learned counsel for the appellants, in support of this appeal, contends that both the appellants have falsely been implicated in this case; that as per prosecution the occurrence took place at 05:30 p.m. And it is the case of the complainant in his cross examination that after the occurrence he reached the spot with police after about 10 minutes in service vehicle whereas the FIR was chalked out at 07:30 p.m. i,e, two hours after the occurrence with due deliberations and consultations; that the complainant was not present at the time of occurrence as he attributed only two fire shots to Mubasher (appellant) whereas there were two entry wounds on the person of Muzammal Hussain (deceased) and one entry wound on the person of Aurangzaib injured (P.W.11); that perhaps realizing this discrepancy the complainant while appearing before the learned trial court improved his version and stated that one fire shot had hit on the neck in front of Muzammal Hussain (deceased), the second fire shot had hit him on the chest and the third fire shot which he had made hit on the left arm of Aurangzaib P.W.; that the complainant was duly confronted with the contents of his earlier statement (Exh.PA) which became basis for registration of the FIR and the improvement was brought on the record; that conduct of the complainant is also highly improbable as instead of shifting his brother Muzammal Hussain and Aurangzaib (P.W.11) to the hospital for medical treatment he rushed to the Police td report the crime; that the complainant was resident of mauza Sheikh Burhan, which village as per cross examination of Muhammad Suleman (P.W.12) was at a distance of about one kilometer from the place of occurrence; that it is the case of the prosecution that Muzammal Hussain (deceased) and Aurangzaib injured (P.W.11) were going to Government Middle School, mauza Sheikh Burhan to play volleyball but the complainant has not assigned any reason in the FIR or before the learned trial court as why he along with two others was following the deceased as well as the injured; that though Aurangzaib (P.W.11) was injured during the incident but while appearing before the learned trial court he has not furnished the true. Account of the incident and as such mere firearm injury on the person of Aurangzaib would not make him a truthful witness; that a vague motive was set out in the FIR as well as before the learned trial court which is to the effect that two days prior to the occurrence an altercation had taken place between Muzammal Hussain (deceased) and Mubasher (appellant) but no details of the motive such as to where, when and why the altercation took place have been disclosed by the prosecution; that Muhammad Suleman, S.I (P.W.12) stated during the course of cross examination that he did not examine any witness in support of the motive behind the occurrence; that the alleged recovery of pistol 30 bore (P.4) at the instance of Mubasher (appellant) does not advance the case of prosecution as no crime empty was collected from the spot and there is no report of Forensic Science Laboratory. So far as the case against Sarfraz (appellant No,2) is concerned, learned counsel for the appellants submits that no overt act was attributed to the said appellant in the FIR as well as before the learned trial court except his mere presence at the spot; that recovery of motorcycle at the instance of Sarfraz (appellant) is also not helpful for the prosecution because no registration number or any other description of the motorcycle is mentioned in the FIR or disclosed before the learned trial court; that the motive was also alleged exclusively against Mubasher (appellant), therefore, the element of common intention is missing in this case. Learned counsel further contends that there are material contradictions in the prosecution evidence as in the FIR time of reporting the crime to the Police is mentioned as 7:30 p.m. Whereas Iftikhar Ahmad Constable No,590 (P.W.8) stated during his cross examination that they (Police party) received the information about the occurrence at about 8:30 p.m.; that it is the case of the complainant in his cross examination that the Investigating Officer (P.W.12) recorded 'the statement of Aurangzaib injured (P.W.11) at the spot; that the Investigating Officer (P.W.12) stated during his cross examination that Aurganzaib injured was conscious when he visited the place of occurrence whereas Aurangzaib (P.W.11) stated during his cross examination that after receiving firearm injury he became unconscious and came into senses two three hours thereafter in the hospital; that viewing from all angles the prosecution case is doubtful in nature and the appellants are entitled to the benefit of doubt not as a matter of grace but as of right; that version of Mubasher (appellant No,1) disclosed by him in his statement recorded under section 342, Code of Criminal Procedure and put to the witnesses of ocular account as well as the Investigating Officer during their cross examination and supported by the statement of Robina Mubasher (DW.1) is more probable and gets support from the prosecution's own case.
9. On the other hand, learned Deputy Prosecutor General, assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that this broad daylight occurrence took place at 05:30 p.m. On 10-4-2009 whereas Aurangzaib injured (P.W.11) was medically examined on the same evening at 07:00 p.m. And even post mortem examination on the dead body of Muzammal Hussain (deceased) was also conducted on the same night at 09:00 p.m. i,e, within four hours of the incident which establishes presence of the complainant and other witness of ocular account at the spot; that no adverse inference can be drawn against the prosecution due to conduct of the complainant as human conduct varies from person to person and in the peculiar circumstances of the case the complainant preferred to report the crime to the Police prior to having resort to the medical treatment; that the complainant being a commoner was not expected to give the exact details of injuries and that too in a situation of perplexity and panic when his real brother was shot dead at the hands of the appellants; that the other witness of ocular account namely Aurangzaib (P.W.11) was injured in the incident and he was medically examined on the same evening at 07:00 p.m. i,e, just one hour and thirty minutes after the occurrence and even otherwise his presence at the spot has not been disputed by the defence; that the motive has fully been proved by the prosecution and the same was not even disputed by the defence; that the ocular account is fully supported by the medical evidence; that the prosecution case is corroborated by the recovery of pistol 30 bore (P.4) at the instance of Mubasher (appellant) which was taken into possession vide recovery memo (Exh.PJ) and similarly motorcycle through which both the appellants fled away after the occurrence was recovered at the instance of Sarfraz (appellant) which was taken into possession vide recovery memo (Exh.PK); that Mubasher (appellant) committed brutal murder of Muzammal Hussain brother of the complainant by making two successive fire shots and under the circumstances he does not deserve any leniency even in the quantum of his sentence; that Sarfraz (appellant No,2) ambushed at the place of occurrence along with the principal accused and after the occurrence fled away with him on a motorcycle which was recovered at his instance, therefore, he shared common intention with Mubasher (appellant) and was vicariously liable for the act of his co-accused. So far as version of Mubashar (appellant No,1) is concerned, learned Deputy Prosecutor General and learned counsel for the complainant contend that the same is just an afterthought; that it was never alleged by the defence that Muzammal Hussain (deceased) was armed with any firearm and in that eventuality it does not appeal to common sense that he caught hold of Robina Mubasher wife of Mubasher (appellant No,1) and wanted to commit rape with her specially when according to the statement of Robina Mubasher (DW.1) at the time of occurrence her pregnancy was at advance stage; that Mst Mumtaz Begum mother of Mubasher (appellant No,1) who was also accompanying Robina Mubasher at the time of her alleged dragging was not produced by the appellant in his defence; that there is no merit in this appeal and the same is liable to be dismissed.
10.We have heard learned counsel for the appellants as well as learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant at a considerable length and have also gone through the record with their able assistance.
11. Admittedly, it is a case of two versions. One set out by the prosecution in the FIR (Exh.PA/1) and brought on the record through the statements of the eye-witnesses namely Muhammad Yasin complainant (P.W.10) and Aurangzaib injured (P.W.11) and the second disclosed by Mubasher (appellant No,1) in his statement recorded under Section 342, Code of Criminal Procedure put to Aurangzaib injured (P.W.11) as well as the Investigating Officer (P.W.12) during their cross examination and supported by the defence witness namely Rubina Mubasher (DW.1). In such like situation, the Court is required to first analyze the prosecution case in order to ascertain its truthfulness or otherwise. In this respect, we are guided by the judgment of the Hon'ble Supreme Court of Pakistan passed in the case reported as "Ashia Hussain v. State" (PLD 1994 SC 879) wherein, at page 883, the Hon'ble Supreme Court has been pleased to observe as under:-- "9. ...The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.P.C., statement under section 340(2), Cr.P.C. And the defence evidence. If the Court disbelieves/rejects excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. Is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C. Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the questions, viz., is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly."
' The above view of the hon'ble apex court of the country has been reiterated in another judgment reported as "Amin All v. The State" (2011 SCM R 323), therefore, following the principles settled by the hon'ble Supreme, Court of Pakistan in such like situation, we will first, examine the case of the prosecution.
12.Case of the prosecution has been discussed in para 3 above. Gist of the same is that on 10-4- 2009, at about 05:30 p.m. Muzammal Hussain (deceased) along with Aurangzaib injured (P.W.11) were going to Government Middle School Sheikh Burhan for playing volleyball and when they reached the main gate of school, Mubasher (appellant No,1) and Sarfraz (appellant No,2) ambushed them as they were already inside the gate of the school. Mubasher (appellant) who was armed with 30 bore pistol, made two successive fire shots out of which, one fire shot hit Muzammal Hussain in front of his throat whereas second fire hit Aurangzeb at his left arm.
Complainant along with Umar Daraz and Ghulam Abbas while witnessing the occurrence nearby, reached at the place of occurrence. On seeing the complainant's side, the assailants decamped towards Syed Musa Road on a motorcycle. The complainant's side attended Muzammal Hussain, who had fallen on the ground and succumbed to the injuries.
13.This unfortunate incident, wherein Muzammal Hussain brother of the complainant lost his life whereas Aurangzaib (P.W.11) received firearm injury as per FIR (Exh.PA/1) took place on 10-4-2009 at 05:30 p.m. At the main gate of Government Middle School Sheikh Burhan District Tob Tek Singh.
Aurangzaib injured was medically examined on the same evening at 07:00 p.m. And even post mortem examination on the dead body of Muzammal Hussain (deceased) was also conducted on the same night at 9-00 p.m. And the probable time between the death and post mortem examination noted by Dr.Shaukat Ali (P.W.6) was two to four hours which is in line with the time of occurrence stated by the prosecution.
14. First of all we take up the case of Sarfraz (appellant No,2). In the FIR except mere presence no overt act has been attributed to the said appellant. There were only firearm injuries on the person of the deceased as well as Aurangzaib injured. There is neither any allegation that he was carrying any firearm at the time of occurrence nor any firearm was recovered from him during the course of investigation. The only incriminating evidence against Sarfraz (appellant) is the recovery of motorcycle which was taken into possession vide recovery memo (Exh.PK). Registration number or any other description of the motorcycle is not mentioned in the FIR or disclosed before the learned trial court. The prosecution has also not specified as to who was driving the motorcycle when the assailants decamped from the place of occurrence and above all the recovery of motorcycle was not put to Sarfraz (appellant No, 2) while recording his statement under section 342, Code of Criminal Procedure. It is settled principle of law that the piece of evidence not put to the accused during his examination under Section 342, Code of Criminal Procedure cannot be used against him for recording his conviction. While holding so, we are fortified by the dictum of law laid down by the hon'ble Supreme Court of Pakistan in the case reported as "Muhammad Shah v. The State" (2010 SCM R 1009). We have not been able to find out any other piece of evidence against Sarfraz (appellant No,2) except the recovery of motorcycle, which cannot be used against him in view of the dictum of law laid down in Muhammad Shah's case (supra). Therefore, while holding that the prosecution failed to connect Sarfraz (appellant No,2) with the commission of crime, this appeal to his extent is allowed and he is acquitted of the charges. He is in jail. He be released forthwith if not required to be detained in any other case.
15. Now we are left with the case of Mubasher (appellant No,1). Ocular account in this case was furnished by Muhammad Yasin complainant (P.W.10) and Aurangzaib injured (P.W.11). It is the case of the complainant in the FIR that Mubasher (appellant) who was armed with 30 bore pistol, made two successive fire shots out of which, one fire shot hit Muzammal Hussain in front of his throat whereas second fire hit Aurangzaib at his left arm. During the post mortem examination of Muzammal Hussain (deceased) Dr.Shaukat Ali (P.W.6) noted two firearm entry wounds on the dead body of Muzammal Hussain (deceased). Perhaps realizing this contradiction the complainant improved his statement while appearing before the learned trial court and stated that one fire shot had hit on the neck in front of Muzammal Hussain (deceased), the second fire shot had hit him on the chest and the third fire shot which he had made hit on the left arm of Aurangzaib P.W. The complainant was duly confronted with his earlier statement (Exh.PA) which became basis for the registration of FIR and the improvement was brought on the' record. Following portion of his cross examination is relevant, which is reproduced as under:-- "I had mentioned in my statement Exh. PA that the second fire shot of Mubasher had hit the deceased on his chest. Confronted with Exh.PA where it is not so recorded."
' It is obvious that this improvement was made by the complainant to strengthen the prosecution case is well settled by now that when a witness improves his statement to strengthen the prosecution case and the moment it is concluded that the improvement was made deliberately and with mala fide the testimony of such witness does not remain reliable. While holding so we are fortified by the dictum of law laid down by Hon'ble Supreme Court of Pakistan in the cases reported as "Muhammad Rafique and others v. The State and others" (2010 SCM R 385) and "Syed Saeed Muhammad Shah and another v. The State" (1993 SCM R 550). Seeking guidance from the above judgments of the apex court we hold that the evidence of Muhammad Yasin complainant (P.W.10) is not reliable. The episode does not end here. According to the contents of the FIR, one fire shot hit Muzammal Hussain in front of his throat. Similarly while appearing before the learned trial court, the complainant stated that one fire shot had hit on the neck in front of Muzammal Hussain (deceased) and the second fire shot had hit him on the chest whereas as per post mortem report (Exh.PC) and statement of Dr. Shaukat Ali (P.W.6) injury on the back of neck of Muzammal Hussain (deceased) was an entry wound having its exit wound on the front of throat. Conduct of the complainant also creates doubts qua his presence at the place of occurrence because it is the case of the complainant in the FIR as well as before the learned trial court that leaving Muzammal Hussain (deceased) and Aurangzaib injured (P.W.11) at the spot he proceeded to report the matter to the Police. Had the complainant been present at the spot he would have rushed for medical treatment to the hospital instead of having resort to the Police. Therefore, we hold that it is not safe to rely on the statement of Muhammad Yasin complainant (P.W.10) to maintain the conviction of Mubasher (appellant) on a capital charge and the same is excluded from consideration. But in criminal cases it is the quality and not the quantity of the evidence which settles the guilt or innocence of the accused and conviction can be based on testimony of a single witness even in a murder case. While holding so we are fortified by the dictum of law laid down by the Hon'ble Supreme Court of Pakistan in the case reported as "Farooq Khan v. The State" (2008 SCM R 917) wherein at page 921, it was observed as under:-- "9. As to the argument of learned counsel for the appellant that the solitary statement of injured P.W.8 was the basis of conviction, suffice it to observe that the injured prosecution witness had given the number of injuries caused to the deceased in the incident by attributing the responsibility to the appellant. Evidence of this witness has been supported by medical evidence furnished by Dr. Muhammad Maqsood P.W.6 who conducted post-mortem examination on the dead body of the deceased Zahir Khan. The evidence of injured witness is worthy of credence, independent and natural and there was no lawful justifiable cause to discard his evidence. The credence of statement of solitary witness has already been examined by this Court in a number of cases. In this context reference can be made to Mali v. The State 1969 SCM R 76; Muhammad Ashraf v. The State 1971 SCM R 530, Muhammad Siddique alias Ashraf alias Achhi and 3 others v. The State 1971 SCM R 659 and Muhammad Mansha v. The State 2001 SCM R 199. Moreover, conviction in any murder case can be based on the testimony of a single witness, if the Court is satisfied that the Witness is reliable. In other words, the "emphasis" is on quality of evidence, and not on its quantity. In this behalf reliance can be placed on the case of Allah Bakhsh v. Shammi PLD 1980 SC 225."
16.Now we are left with the statement of Aurangzaib injured (P.W.11). He is an independent witness having no relation with the complainant's side or enmity with Mubasher (appellant). It was nowhere denied by the defence that Aurangzaib received firearm injury during the same incident.
He was medically examined on the same evening at 7:00 p.m i,e, just after one hour and thirty minutes of the occurrence. Therefore, presence of Aurangzaib injured (P.W.11) at the spot cannot be doubted by any stretch of imagination, which has otherwise been accepted by the defence, so we hold that Aurangzaib (P.W.11) injured was present at the spot and had witnessed the crime.
17.It is case of the prosecution in the FIR that Mubasher (appellant) who was armed with .30 bore pistol, made two successive fire shots out of which, one fire shot hit Muzammal Hussain (deceased) in front of his throat whereas second fire hit Aurangzaib at his left arm. While appearing before the learned trial court Aurangzaib (P.W.11) stated that Mubasher (appellant) made three shots with the pistol. First fire shot had hit on the neck and second fire shot on the chest of Muzammal Hussain (deceased) who fell down. Mubasher (appellant) fired third shot hitting on the left arm of Aurangzaib injured. Dr. Shaukat Ali (P.W.6) conducted post mortem examination on the dead body of Muzammal Hussain (deceased) and noted the following injuries:--
(1) A lacerated wound 1 c.m x 1 c.m. With inverted margin on the back of neck continuous on the front above medial end, of right clavical with a lacerated wound 2 c.m, x 2 c.m. With everted margin.
(2) A lacerated wound 1 c.m. x 1 c.m. With inverted margin on the front of right chest medial to the right nipple.
' Same is the position in the post mortem examination report (Exh.PC). Aurangzaib injured was medically examined by Dr. Jawad Ahmad Khan (P.W.7) who noted the following injury on his person:-- "A lacerated wound of firearm entry 2 x 1.5 c.m. On the inner side of left forearm, just 8 c.m. Below the left elbow joint.. The margins of the wound were irregular and were inverted (Muscle deep). X- Ray was advised of left forearm A.P. Lateral."
'Same is the position in the MLC (Exh.PF), therefore, we hold that the ocular account is substantially supported by the medical evidence.
18.Motive behind the occurrence, as reported in the FIR was that two days prior to the occurrence, an altercation had taken place between complainant's brother Muzammal Hussain (deceased) and Mubasher (appellant) and due to that grudge, Mubasher and Sarfraz (appellants) in furtherance of their common intention, murdered complainant's brother namely Muzammal Hussain (deceased) and caused injuries to Aurangzaib. No details of the earlier altercation, such as to how, where, why and when the same had taken place, were disclosed by the prosecution either in the FIR or before the learned trial court. Muhammad Suleman S.I (P.W.12) stated during his cross examination that he had not examined any eye-witness of earlier altercation which took place two days prior to the occurrence. Argument of the learned Deputy Prosecutor General and the learned counsel for the complainant that the defence did not dispute the motive does not hold much water as it is bounden duty of the prosecution to prove its case on its own and mere lapse on the part of the accused in not controverting the motive K would not advance the case of prosecution, therefore, we hold that the prosecution failed to prove the motive behind the occurrence. Both the I L parties are residents of the same village and circumstances suggest that something else had happened just prior to the occurrence, which has not been brought on the record.
19. The alleged recovery of pistol .30 bore (P.4),at the instance of Mubasher (appellant) which was taken into possession vide recovery memo (Exh.PJ) does not advance the case of prosecution as Muhammad Suleman S.1 (P.W.12) who investigated this case stated during his cross examination that no crime empty was available at the place of occurrence. Moreover the pistol was not sent to the office of Forensic Science Laboratory even to verify its working condition and no report from the Forensic Science Laboratory is available on the record, therefore, we hold that no corroboration can be sought against Mubasher (appellant) from the alleged recovery of pistol at his instance.
20.Now we take up the version of Mubasher (appellant) disclosed by him in his statement recorded under Section 342, Code of Criminal Procedure put to Aurangzaib (P.W.11) as well as the Investigating Officer (P.W.12) during their cross examination and statement of Robina Mobasher (DW.1), which has been reproduced in para 5 above. It is the case of the appellant in his statement under Section 342, Code of Criminal Procedure that prior to the occurrence real uncle of deceased Nazir Ahmed got a case registered against him (appellant) and others for assaulting his wife Mst..Mubeen Bibi. Muzammal Hussain (deceased) got a case registered for assaulting his two sisters. But above mentioned cases were cancelled during the investigation. So Muzammal Hussain (deceased) nursed grudge against the appellant and had been threatening to avenge the insult of the woman folk of his family, by attempting to commit rape with appellant's wife and other girls of his family. On the fateful day appellant's wife and appellant's mother had gone to Adda Said Mousa to fetch medicine. The appellant also went after them. On their way back to village he stopped at a shop on the road side to purchase grocery articles. His mother and wife were going to the village when they were ambushed near the gate of the school by the appellants. Muzammal Hussain caught hold of appellant's wife from her arms and tried to drag her inside the school premises. On hue and cry of his wife and mother the appellant rushed to the spot and tried to intervene but Muzammal Hussain shouted that he would avenge the insult of his family by raping Robina Mobasher and continued to drag her. Under grave and sudden provocation, loosing self control and in order to defend the honour of his wife the appellant fired at the deceased.
Aurangzaib P.W.Also reached there and intervened who also received a fire shot by chance.
21. In view of the provisions of Article 121 of the Qanun-e-Shahadat IN Order, 1984 when an accused takes a specific plea the burden to prove the same lies on the accused. The appellant did not appear as his own witness in disproof of the prosecution allegations levelled against him as provided under section 340(2) Code of Criminal Procedure. It is not the case of the defence that Muzammal Hussain (deceased) was carrying any firearm at the time of occurrence. Robina Mubasher (DW.1) stated in her examination in chief that she was pregnant in advance stage at the time of occurrence, therefore, it does not appeal to a prudent mind that Muzammal Hussain (deceased) who was empty handed would have tried to drag a woman to commit rape with her who was accompanied by her mother in law and whose pregnancy was also at an advanced stage.
'Therefore, we are of the considered view that the appellant failed to substantiate the defence plea.
Even otherwise if both the versions i,e, prosecution story and the defence plea are kept in juxtaposition, the prosecution story appears to be more probable and carries a ring of truth.
22. Coming back to the prosecution case, there is sufficient evidence against Mubasher appellant in the form of straight forward and confidence inspiring ocular account furnished by Aurangzaib injured (P.W.11) substantially supported by medical evidence furnished by Dr.Shaukat Ali (P.W.6) and the post mortem examination report (Exh.PC) of Muzammal Hussain (deceased) as well as MLC (Exh.PF) of Aurangzeb injured and statement of Dr. Jawad Ahmad Khan (P.W.7) to maintain his conviction under sections 302(b), 324 and 337-F(iii) P.P.C. For the murder of Muzammal Hussain (deceased) and launching a murderous assault and causing injuries to Aurangzaib injured (P.W.11) even if the evidence of complainant, motive and recovery of 30 bore pistol are excluded from consideration, which is accordingly maintained.
23. However, we have noted that it is not a case of capital punishment for the following reasons:-- (a)The motive has not been believed by us for the reasons recorded in para 18 above.
(b)Along with Mubashir (appellant) his co-accused namely Sarfraz was also entangled in this case who has been acquitted by us for the reasons recorded in para 14 above.
(c)Alleged recovery of 30 bore pistol (P.4) at the instance of the appellant is not helpful for the prosecution for the reasons recorded in para 1 above.
24. Moreover, by now it is well recognized principle of law that the accused is entitled for the benefit of any doubt as an extenuating circumstance, while deciding question of sentence. We, here, respectfully refer to an observation of the Hon'ble Supreme Court of Pakistan in the case of "Mir Muhammad alias Miro v. The State" (2009 SCM R 1188), wherein at page 1191, the Hon'ble Supreme Court of Pakistan has emphasized as under:-- "9. It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons arc also entitled to extenuating benefit of doubt to the extent of quantum of sentence."quantum of sentence."
25. In this backdrop, while maintaining the conviction under section 302(b), P.P.C. For the murder of Muzammal Hussain (deceased), we alter the sentence of Mubasher (appellant) from punishment of death to imprisonment for life. The amount of compensation and the sentence of imprisonment in default thereof as ordered by the learned trial court are maintained. Convictions and sentences awarded to Mubasher (appellant) by the learned trial court for launching a murderous assault and causing injury to Aurangzaib injured are also maintained in toto. All the sentences shall run concurrently. Benefit of Section 382-B, Code of Criminal Procedure is extended to the appellant. To the extent of Mubasher (appellant No,1), this appeal stands dismissed with the above modification in the quantum of sentence.
26.Murder Reference No,516 of 2010 is answered in the NEGATIVE and the sentence of death awarded to Mubasher (convict) is NOT CONFIRMED.