' SAYYED MAZAHAR ALI AKBAR NAQVI, J.--Nasir son of Muhammad Khan, caste Sial, resident of Chah Kobhari Wala, Tehsil & District Chiniot (appellant) alongwith Haider son of Mutal (since acquitted) being involved in case FIR No, 384, dated 03.07.2008, offence under Sections 302, 324, 109, 34, PPC, registered with Police Station Bhowana, Chiniot, was tried by the learned Additional Sessions Judge, Chiniot. The learned Trial Court seized with the matter in terms of judgment dated 26.05.2010, convicted the appellant under Section 302(b), PPC, and sentenced him to death. He was also burdened to pay Rs, 5,00,000/- as compensation to the legal heirs of deceased in terms of Section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months. He was further convicted under Section 324, PPC, and sentenced to imprisonment for ten years' R.I.
With fine of Rs, 50,000/-. In case of default in payment thereof, to further undergo six months' S.I.
Benefit of Section 382-B, Cr.P.C. Was extended in favour of the appellant while undergoing the sentence under Section 324, PPC, however, the appellant was acquitted of the charge under Section 34, PPC.
2. Feeling aggrieved by the judgment of the learned Trial Court, the appellant impugned the same by way of filing Crl. Appeal No, 447-J/2014 while the learned Trial Court forwarded Murder Reference No, 324/2014 for confirmation of death sentence inflicted upon Nasir/convict in terms of Section 374, Cr.P.C. Whereas being dissatisfied with the quantum of compensation amount, the complainant preferred Crl. Rev. No, 763/2010 seeking enhancement of the compensation amount against the appellant. The complainant also filed appeal against acquittal bearing Crl. Appeal No, 2791/2010 against Haider (respondent). As all these matters are arising out of one and the same judgment of the learned Trial Court, therefore, these are being disposed of through single judgment.
3. Prosecution story as contained in the FIR (Exh.PC) lodged on the statement (Exh.PA) of Shahadat complainant (PW-1) is that he is resident of Chah Khabari Wala Dakhli Chak No, 229/GB. On 03.07.2008, at 11:30 a.m. The complainant alongwith his brother Mutal Khan son of Raja, sister Mst.
Maryam Bibi were present in their house, whereas Ahmad Khan son of Bahadar, caste Sial, resident of Thatha Muhammad Shah was with them as a guest. They all were talking while sitting in the house, when suddenly Nasir son of Muhammad Khan alias Mamman armed with gun .12 bore double barrel, Haider, son of Mutal armed with phora, caste Sial, residents of the deh, came over there. Haider raised a lalkara that they would teach them a lesson for raising allegation against his sister Mst. Munawar Bibi. Nasir made a fire shot with his gun landing at left side of chest of Mutal Khan, due to which he fell down. The second fire was made by Nasir, which hit the complainant at his left hand. Haider made a phora blow at the head of Mst. Maryam Bibi. He made second blow landing at the back of left hand of Mst. Maryam. Haider made third blow which hit at the back of Mst. Maryam Bibi. On hearing the noise of firing, a number of people gathered there. On seeing them, the accused persons fled away from the spot while extending threats. The brother of the complainant Mutal Khan succumbed to the injuries at the spot.
4. Motive behind the occurrence, as contained in the crime report is that Ghulam Shabbir son of Muhammad Bakhsh, caste Sipra, was having illicit relations with Mst. Munawar Bibi, sister of Haider accused, due to which Mutal Khan had forbidden Ghulam Shabbir Sipra from coming to his house.
Due to this grudge, Nasir Ali and Haider Ali accused had committed murder of Mutal Khan, injured the complainant and his sister Maryam Bibi, at the abetment of Ghulam. Shabbir Sipra.
5. After leaving the dead-body of Mutal Khan at the spot, the complainant was going to the police station for registration of formal FIR, but he met Israr Hussain, S.I. (PW-9) at Adda Nalka. The Investigating Officer recorded statement of the complainant (Exh.PA) without any addition or omission and the complainant put his thumb impression on the same in token of its correctness.
The Investigating Officer sent the same to the police station through Noor Sultan 653/C for registration of. FIR. On the basis of which formal FIR (Exh.PC) was lodged by Shamshair Ali 1321/HC (PW-5). The Investigating Officer proceeded to the place of occurrence, inspected the dead-body, prepared injury statement (Exh.PH), prepared inquest report (Exh.PJ) and handed over the dead- body of the deceased alongwith police papers to Abdul Latif 778/HC for escorting the same to the mortuary for postmortem examination. The Investigating Officer prepared separate injury/statement of Shahadat complainant (Exh.PP), rough site-plan (Exh.PK) and also collected the blood-stained earth from the spot through recovery memo. (Exh.PB). The Investigating Officer recorded statements of the PWs under Section 161, Cr.P.C. After post-mortem examination on the dead-body of the deceased, Abdul Latif 778/C produced last worn cloths of the deceased i. e .
Chaddar (P-I) which was taken into possession by the Investigating Officer vide recovery memo.
(Exh.PD). On 08.07.2009, the Investigating Officer arrested Nasir and Haider accused persons and obtained their physical remand from the learned Illaqa Magistrate. On 09.07.2008, during the course of investigation, Nasir accused got recovered gun .12-bore which was taken into possession by the Investigating. Officer through recovery memo. (Exh.PF). The Investigating Officer prepared site-plan of the place of recovery of gun .12-bore (Exh.PL). On the same day, Haider accused led to recovery of Phora (P-3) which was taken into possession by the Investigating Officer through recovery memo. (Exh.PG). The Investigating Officer prepared site-plan of the place of recovery of phora (Exh.PM). The recovery memos. Were attested by Zafar Iqbal 1162/C and Noor Sultan 653/C, PWs. The Investigating Officer recorded their statements under Section 161, Cr.P.C. The Investigating Officer summoned Sarfraz Khan, Patwari (PW-7), who took rough notes of the place of occurrence on the pointing out of the PWs and directions of the Investigating Officer and prepared scaled site- plan (Exh.PE and Exh.PE/I). The Investigating Officer recorded statements of the PWs under Section 161, Cr.P.C.
6. Having found the appellant guilty, the Investigating Officer prepared report under Section 173, Cr.P.C. And sent the same to the Court of Sessions en-routed through the Illaqa Magistrate as provided under Section 190(2), Cr.P.C. On 09.10.2008, the learned Additional Sessions Judge, Chiniot, formally charge-sheeted the appellant to which he pleaded not guilty and claimed trial.
Prosecution in support of its version produced as many as nine (9) prosecution witnesses.
' Ocular account in this case has come out from the statements of Shahadat complainant (PW-1) and Ahmad Khan (PW-2). Sarfraz Khan, Patwari (PW-7) had prepared scaled site-plan of the place of occurrence. Investigation of this case was carried out by Israr Hussain, S.I. (PW-9).
' Dr. Ijaz Hussain had conducted post-mortem examination on the dead-body of the deceased, but due to his death, statement of Fida Hussain, Record Keeper, DHQ Hospital, Chiniot (PW-10), was recorded as secondary evidence. As per post-mortem report, Dr. Ijaz Hussain, observed following injuries on the dead-body of the deceased:---
(I) A lacerated wound 3/4 x 3/4 cm on front of left side of upper chest. Margins are inverted. Wound of entry.
' After conducting the post-mortem examination, the doctor rendered the following opinion:- "Death in my opinion is due to cardiopulmonary arrest caused by injuries to vital organs (lungs, heart, blood vessels etc.) causing hemorrhage and shock resulting from injury No, 1 which is sufficient to cause death in ordinary course of nature and hence is fatal. This injury is ante-mortem and caused by firearm.
' The probable time between the injuries and death was- half an hour whereas between death and post-mortem 6 to 8 hours".
' Statements of rest of the prosecution witnesses are formal in nature.
7. On 03.05.2010 the complainant gave up Mst. Maryam Bibi and Haq Nawaz, PWs, being unnecessary. On 29.04.2010, learned counsel for the complainant gave up Hayat, PW, being unnecessary. Vide separate statement recorded on 17.05.2009, learned counsel for the complainant further gave up Zafar Iqbal, 1162/C being unnecessary and Dr. Ijaz Hussain, PW (being dead). On 21.05.2010, after tendering in evidence, report of Chemical Examiner (Exh.PO) and report of Serologist (Exh.PQ), learned counsel for the complainant closed, the prosecution evidence.
8. The appellant was examined under Section 342, Cr.P.C., wherein he opted neither to produce defence evidence nor to appear as his own witnesses in terms of Section 340(2), Cr.P.C. In disproof of the allegations levelled against him in the prosecution evidence. While replying to the question why this case against him and why the PWs deposed against him, the appellant made the following deposition:--- "PWs are related inter se and inimical towards me. I am innocent. Actually the complainant party came to my house and assaulted upon me on account of altercation between ladies of our family and the family of complainant. They made also firing and as a result of which a stray pallet hit the deceased, I was locked in a room by the women-folk of my family. The prosecution case was totally false, for this reason they manoeuvred the medical evidence to the extent of Maryam Bibi who did not support the prosecution case, even before the Court as she was in possession to make two statements before this Court. Inspite of repeated efforts by the complainant she did not appear and depose in support of prosecution".
9. Learned Trial Court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellant in the afore-stated terms.
10. Learned counsel for the appellant while opening his arguments contended that the impugned judgment has been passed by the learned Trial Court in a slipshod manner without adverting to the facts of the case, which even otherwise is in sheer violation to the evidence available on the record. It was argued that the parties are closely related inter-se. It was next argued that the appellant had been implicated in this case by the complainant against the actual facts and circumstances with ulterior motives. It was contended that the complainant had implicated as many as three nominated accused persons in the crime report, but Haider (co-accused) was acquitted of the charge by the learned Trial Court on the basis of same set of evidence, whereas Ghulam Shabbir against whom role of abetment was assigned was found absolutely innocent by the Investigating Officer during the course of investigation and his name was placed in column No, 2 of the report under Section 173, Cr.P.C. And as such was not recommended for trial hence bulk of prosecution case was found false. It was contended that though gun .12 bore was recovered from the appellant, but the same is inconsequential as no crime empty was taken into possession by the Investigating Officer from the spot and as such no report of Forensic Science Laboratory is available on the record. In view of tenor of the occurrence coupled with close relationship between the parties, learned counsel argued that it seems that the occurrence had taken place at the spur of the moment. Learned counsel further argued that Maryam Bibi, injured PW, was given up by the prosecution for the reasons best known to it and if she had been produced before the learned Trial Court, she would have made statement adverse to the prosecution case. It was contended that the whole prosecution case is pregnant with so many lacunas. In such backdrop, learned counsel contended that the extreme penalty of death inflicted upon the appellant by the learned Trial Court is uncalled for and as such the appellant has made out a case of reduction of sentence to imprisonment for life.
11. On the other hand, learned Law Officer assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant. It was argued that the appellant is named in the crime report with specific allegation of causing fire-arm injuries at the chest of the deceased and left hand of the complainant. It was next argued that the ocular account is supported by medical evidence. Added that recovery of the weapon of offence had been affected from the appellant. Learned Law Officer contended that the appellant was found guilty during the course of investigation and his name was placed in column No, 3 of the report prepared under Section 173, Cr.P.C. As such the learned Trial Court while attending each and every aspect of the case on the touchstone of evidence available on the record rightly inflicted normal penalty of death sentence provided under the statute.
12. With regard to Crl. Revision No, 1119/2006, learned counsel for the complainant stated that keeping in view the role of the appellant coupled with financial constraints of the present era, amount of compensation is liable to be enhanced.
13. While arguing appeal against acquittal bearing Cr1. Appeal No, 2791/2010 filed against Haider (respondent), learned counsel for the complainant submitted that he had been ascribed specific role of causing injuries to Mst. Maryam Bibi on different parts of her body and the prosecution had proved its case against the accused/respondent to the hilt, therefore, he is also liable to conviction.
14. Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellant as well as learned Law Officer assisted by learned counsel for the complainant.
15. There is no second cavil to this preposition that the appellant is named in the crime report lodged promptly at the instance of Shahadat complainant (PW-1). It is a broad day occurrence.
The parties are closely related inter-se. There is specific allegation against the appellant that he caused fire-arm injury at the chest, i,e, most vital part of the body of Mutal Khan (deceased). He had also been ascribed the role of causing fire-arm injury at the left hand of the complainant.
Shahadat complainant and Ahmad Khan while appearing in the witness-box as PW-1 and PW-2 respectively had fully implicated the appellant in this case. The ocular account in this case finds full corroboration from medical evidence. The weapon of offence had been recovered from the appellant by the Investigating Officer during the course of investigation. There is no second cavil to this preposition that the prosecution has succeeded in establishing its case against the appellant to the hilt. The appellant was found guilty by the Investigating Officer and his name was placed in column No, 3 of the report under Section 173, Cr.P.C. All these facts and circumstances prompt this Court to arrive at the conclusion, that the prosecution had proved its case against the appellant beyond reasonable doubt and the learned Trial Court was well justified in convicting the appellant under Section 302(b)/324, PPC.
16. Now the question of utmost care before this Court is that whether the learned Trial Court was justified in sentencing the appellant to death or alternative sentence of life imprisonment would be in exact proportionate to the act committed by Nasir/appellant. Admittedly there are certain lacunas, which had spelled out during the course of arguments by learned counsel for the appellant and learned Law Officer assisted by learned counsel for the complainant to which this Court cannot lose sight off. Haider co-accused who was assigned specific role of causing injuries to Mst. Maryam Bibi was acquitted of the charge by the learned Trial Court, mainly due to the reason that neither Mst. Maryam Bibi was produced before the learned Trial Court nor Dr. Fozia Yaqoob, who medically examined her was produced by the prosecution, rather Mst. Maryam Bibi was given up by the prosecution being unnecessary. No crime empty was taken into possession by the Investigating Officer from the spot and as such no report of Forensic Science Laboratory is available on the record. Though motive had been alleged in the crime report, but the same seems to be remote enough. Moreover, in view of relationship between the parties and peculiar facts and circumstances of this Court, it seems that the occurrence had taken place at the spur of the moment.
17. Apart from this principle, this Court is also apprised of the fact that punishment awarded under Section 302(b), PPC, relates to death or imprisonment for life. Both the sentences are available under this head but the circumstances are not spelled out in Section 302(b), PPC, in which either of the two punishments can be awarded. In the un-amended Section 302, PPC, the Court was not required to advance any reason for death sentence in a murder case but if Court of law awards lesser punishment while considering it appropriate sentence for murder it was required to give reasons for it prior to amendment in Section 302, PPC, but after that amendment in Section 302, PPC, it has become difficult and the horizon of the infliction of punishment has been broadened in view of Criminal Law (Second Amendment) Ordinance, 1990 promulgated from time-to-time since 1990, in view of Section 338-F, PPC, as in Islam except for just cause and reason, a life cannot be taken away or put to an end. Therefore, seeking guidance from this solitary judgment of the Supreme Court, this Court is persuaded to extend the benefit of doubt qua infliction of sentence to the appellant. If all these facts and circumstances are taken in entirety, this Court is of the view that it has created a crack in the superstructure established by the prosecution and in such circumstances the appellant is found entitled to be extended benefit of doubt on the question of sentence. Respectful reliance in this regard is placed on the ratio decidendi laid down by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Riaz and another v. The State and another (2007 SCM R 1413); wherein their Lordships in the august Supreme Court of Pakistan have held as under:- "No doubt normal penalty for an act of commission of Qatl-i-Amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case."
' In its ratio decidendi of august Supreme Court of Pakistan in the case of Israr Ali v. The State (2007 SCM R 525), it was held that:- "Sentence, quantum of. Principle. Question of sentence demanded utmost care on the part of Court dealing with life and liberties of people. Accused persons are also entitled to extenuating benefit of doubt on the question of sentence."
18. For the foregoing reasons, Crl. Appeal No, 447J/2014 is dismissed with modification in sentence from death to imprisonment for life under Section 302(b), PPC. However, the burden of compensation in terms of Section 544-A, Cr.P.C. Imposed by the learned Trial Court shall remain intact. The conviction and sentence inflicted upon the appellant under Section 324, PPC, alongwith fine would remain intact. The appellant is also extended the benefit of Section 382-B, Cr.P.C. The sentences would run concurrently.
' Murder Reference No, 324/2010 forwarded by the learned Trial Court in terms of Section 374, Cr.P.C.
For confirmation of death sentence inflicted upon Nasir/appellant is answered in NEGATIVE. Death sentence is NOT CONFIRMED.
19. As far as Crl. Revision No, 763/2010 filed by Shahadat complainant seeking enhancement in compensation amount is concerned, for the afore-stated reasons, the same fails, which is accordingly dismissed.
20. As far as appeal against 'acquittal bearing Crl. Appeal No, 2791/2010 preferred against Haider (respondent) is concerned. Bare reading of the crime report reflects that Haider (respondent) was assigned specific role of causing injuries to Mst. Maryam Bibi, but neither Mst. Maryam Bibi (injured) was produced before the learned Trial Court nor Dr. Fozia Yaqoob, who medically examined her was produced by the prosecution, rather Mst. Maryam Bibi was given up by the prosecution being unnecessary. The learned Trial Court while extending the benefit of doubt while rendering cogent reasoning has acquitted the respondent from this case. Needless to mention that the accused is favourite child of law and after acquittal presumption of innocence becomes double in favour of the accused. Moreover, in a case of acquittal, the superior Courts only interfere to avoid grave miscarriage of justice and when judgment of acquittal is perverse, capricious or arbitrary but position in the case in hand is otherwise. Reliance in this regard is placed upon the dictum of law laid down in the case of Shahid Abbas v. Shahbaz and others (2009 SCM R 237). Moreover learned counsel for the complainant, has failed to point out any illegality/legal in-conformity or misreading/non-reading of evidence in the impugned judgment to their extent. The appeal against acquittal preferred by the complainant is patently devoid of any force, which is dismissed accordingly.