Abdul Sami Khan, J:- Through this appeal filed under section 410 Cr.P.C. Raheel Qamar appellant has called in question the judgment dated 24.11.2009 handed down by the learned Additional Sessions Judge, Wazirabad through which the appellant was convicted under section 302(b), PPC and was sentenced to death for committing the Qatl-e-Amd of Mansoor Malik deceased. He was further directed to pay compensation amounting to Rs. 50,000/- to the legal heirs of Mansoor Malik deceased under section 544-A, Cr.P.C. or in default of payment of compensation to further undergo simple imprisonment for six months. The appellant has challenged his conviction and sentence through the instant appeal whereas the complainant has filed Criminal Appeal No. 2164/09 against acquittal of Muhammad Qasim alias Saqib and Khalid Pervaiz in respect of offences under sections 302/324/148/149, PPC. The learned trial court has sent a Reference under section 374 Cr.P.C. which has been numbered as Murder Reference No. 543 of 2009 for confirmation or otherwise of the death sentence passed against Raheel Qamar appellant. We are inclined to decide all these matters together through this single judgment.
2. The prosecution story set forth in FIR (Ex.PA/1) is that on 06.06.2007 at about 6.00 pm the complainant was proceeding towards his Dera on Vehicle bearing registration No. GAW-191 alongwith his son Mansoor Maalik, his driver Iftikhar Ahmad alias Naveed and Shahbaz Ahmad and when they reached near Dera at Pulli (canal bridge) when Muhammad Sohail, Raheel Ahmad, armed with pistols, Saqib, armed with rifle, Faisal, armed with pistol, Khalid and Mohsin alias Bau, armed with pistol came in front of them. The assailants forcibly stopped the vehicle upon which the complianat party alighted from the vehicle. Khalid raised lalkara to the effect that Mansoor should not be spared and killed him upon which Muhammad Sohail fired from his pistol at Mansoor which landed on his right eye. Raheel Ahmad fired from his pistol which landed on the chest of Mansoor who fell on the ground in injured condition. Iftikhar Ahmad proceeded ahead to rescue Mansoor from the assailant whom Khalid accused applied Japha and Mohsin alias Bau caused him injury with Butt of pistol. When Shahbaz tried to intervene Faisal accused made fire from his pistol which hit Shahbaz on his arm who too fell down on the ground in an injured condition. Saqib also caused him injuries with help of Butt of his pistol in laying condition. In the meantime Muhammad Amjad and Shahid Afzal reached the spot by motorcycle who made hue and cry upon which the assailants fled away from the scene of crime. Mansoor has been shifted to Civil Hospital, Gujranwala in serious injured condition wherein he succumbed to his injuries and died. The motive set up by the prosecution in the FIR is that few days earlier to the occurrence Muhammad Ashraf and Muhammad Afzal sons of Rehmat Ali tried to cut trees from graveyard who were forbidden to do so by the son of complainant namely Mansoor and there took an altercation between them but the matter was patched up at that time. The accused person feeling their insult developed grudge in their mind and they after sharing common intention committed the murder of Mansoor and also caused injuries to Muhammad Shahbaz and Iftikhar alias Naveed. It is stated by the complainant that the occurrence was committed by the assailants at the abetment of Muhammad Ashraf and Muhammad Afzal who were seen by Muhammad Ishaq and Sagheer Ahmad on a floor grinding shop whereat Ashraf and Afzal were asking the assailants to commit murder of Mansoor they would face the consequences. Upon written application of the complainant (Ex. PA) formal FIR No. 241/07, dated 06.06.2007 was registered at Police Station Gakhar Mandi, District Gujranwala in respect of offences under sections 302/324/337-A(i)/337-L(2)/109/148/149, PPC.
3. To substantiate its version before the learned trial court, the prosecution produced as many as sixteen prosecution witnesses before the learned trial court. The ocular account was furnished by Muhammad Ilyas complainant (PW1), Shehbaz Ahmad injured (PW2) and Iftikhar alias Naveed, injured victim (PW3). Muhammad Ishaq (PW6), Ghulam Abbas (PW8) and Naveed Ahmad (PW11) have deposed about recovery proceedings. The medical evidence was furnished by Dr. Zahoor Ahmad Siddiqui, Medical Officer, District Headquarter Hospital, Gujranwala (PW5) who had medically examined the deceased in an injured condition at first instance and also medically examined both the injured victim whereas Dr. Muhammad Imran Bhatti, who was posted at Civil Hospital Daska at the time of adducing evidence conducted postmortem examination on the dead body of Mansoor Maalik on 07.06.2003. Khaliq Jehangir, Inspector (PW13) and Muhammad Qayyum, (PW14) are the investigating officers who appeared before the learned trial court and stated about various steps taken by them during investigation of this case. Remaining evidence adduced by the prosecution witnesses is less or more formal in nature.
4. The appellant in this statement recorded under section 342 Cr.P.C. professed his innocence and pleaded false implication in this case. The appellant did not opt to record his statement under Section 340(2) Cr.P.C. in disproof of allegations leveled against him by the prosecution and he did not produce any evidence in his defence.
5. At the end of the trial, after thrashing the entire evidence and considering the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellant as mentioned in paragraph No.1 of this judgment whereas it acquitted Muhammad Qasim alias Saqib, Khalid Pevaiz co-accused of the charge while extending benefit of doubt to them. Hence, these appeals and the Murder Reference before this Court.
6. Learned counsel for the appellants contends that the judgment is against law and facts of the case as well as the same is result of misreading and non-reading of evidence rather non- appreciation of evidence. The prosecution has miserably failed to prove its case against the appellant and his co-accused beyond any shadow of doubt. There is a considerable delay in registration of the FIR and in conducting the post-mortem examination of the deceased. The appellant and his co-accused have been falsely involved in this case by the complainant with ulterior motive and the defence has brought on record through statement of the appellant under section 342, Cr.P.C. the real facts and circumstances of this case. The appellant and his co- accused were not present at the place of occurrence at the relevant time, likewise, the eyewitnesses were also not present at the scene of crime because had the complainant present at the spot he might have sustained firearm injuries on his person as well. All the eyewitnesses have been manoeuvred at a later stage by managing self-inflicted injuries which fact has been established through cross-examination on the complainant who has admitted that his real brother is also serving as Doctor where the injured victim were medically examined and postmortem examination of the deceased was conducted. On the same set of evidence appellant Liaqat Ali has been sentenced to death whereas other co-accused have been acquitted of the charge inasmuch as co-accused Qasim alias Saqib was ordered to undergo rigorous imprisonment for two years.
The prosecution witnesses are interested and related inter se and are also related to the deceased.
The prosecution did not produce any independent witness to corroborate the testimony of these eye-witnesses. There are glaring contradictions in the statements of the prosecution witnesses. The prosecution witnesses have made dishonest improvements in order to prove its case. The recoveries effected in this case have been planted upon the appellant in order to strengthen the case of the prosecution. The medical evidence is not in line with the ocular account to prove the guilt of appellant to the hilt. The prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. The learned counsel prays that the appeal filed by the appellant be allowed and he be acquitted from the charge.
7. On the other hand learned Deputy Prosecutor General assisted by the learned counsel for the complainant contends that the prosecution has successfully proved its case against the appellant and his co-accused beyond any shadow of doubt. The FIR has been lodged in this case with sufficient promptitude wherein the appellant and his co-accused are named in the FIR and specific roles of firing at the deceased as well as injured victims inasmuch as causing Butt blows have been assigned to them. The roles attributed to them are borne out from the postmortem examination report of Mansoor Maalik deceased and the medico-legal certificates of the injured PWs Shahbaz Ahmad (PW2) and Iftikhar alias Naveed (PW3). During the course of investigation recovery of pistols have been effected from the appellant and his co-accused and report of Forensic Science Laboratory in this regard to the extent of weapon recovered from Raheel Qamar appelalnt is in positive. The appellant and his co-accused/co-convict acted in a brutal manner at the spot and murdered the deceased Mansoor Maalik and also injured Shahbaz Ahmad (PW2) and Iftikhar alias Naveed (PW3) injured victims. The prosecution has successfully proved its case against the appellant and his co-accused by proving ocular account which is supported by medical evidence in this case and also corroborated by recovery of weapon of offence. The ocular account is in line with the medical evidence. There are some minor discrepancies which cropped up with the passage of time but those are not fatal to the prosecution case. The complainant Muhammad Ilyas (PW1) is real father whereas the other eyewitness are closely related to the deceased Mansoor Maalik so it is not expected from close kith and kin to leave the real culprit and falsely involve the appellant and his co-accused in this case. The stance taken by the defence has rightly been disbelieved by the learned trial court as the same was taken at belated stage. The prosecution witnesses appeared before the learned trial court and fully supported the prosecution version, they were subjected to lengthy cross-examination but they remained consistent on each and every material point. Relation inter se is no ground to disbelieve the confidence inspiring evidence adduced by the prosecution witnesses. There seem no discrepancies in their statements which could be made basis for acquittal of the appellants. The prosecution has successfully proved its case against the appellant beyond any shadow of doubt, thus, the appeal filed by the appellant be dismissed and appeal against acquittal filed by the complainant be allowed and in result of which the acquitted co-accused may also be punished under sections 302/324/148/149, PPC.
8. We have heard the learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the record of this case with their able assistance.
9. It has been observed by us that the occurrence in this case had taken place on 06.06.2007 at 6.
00 pm and the same has been reported to the police on same night at 11.00 pm vide Rapat No. 26 through written application made by Muhammad Ilyas complainant which shows that the FIR in this case has been lodged with sufficient promptitude and the same fact ousted any possibility of deliberation or consultation of the matter by the complainant with any legal expert. Learned counsel for the appellant has unfastened his arguments by highlighting the delay of 5 hours in lodging the FIR as well as delay of delay of one day in conducting the post-mortem examination of the deceased to establish false implication of the appellant and his acquitted co-accused but we remained unable to appreciate such argument because at first instance Mansoor Maalik (deceased) son of the complainant was shifted form the place of occurrence to the hospital in an injured condition, therefore, the prime consideration of the complainant at that time to save the life of his son and not to report the matter to the police and falsely implicate the appellant and his co- accused in this case. Similarly, after receiving medical treatment the deceased could not survive and died later on in the hospital so the delay in conducting the post-mortem examination is also quite justified. In the circumstances mentioned above we have come to a definite conclusion that by any stretch of imagination we have not found any element of dishonesty of the complainant in reporting the matter to the police with mala fide intention or to falsely implicating the appellant and his co-accused in this case.
10. Before we start our discussion into the matter in detail we would like to mention here that initially the complainant has involved eight accused in the FIR and thereafter he had also got recorded his supplementary statement wherein he had also implicated three accused namely Tahir Farooq, Asghar Ali and Sajid Farooq. However, trial could not be conducted against Sohail Qamar and Mohsin Raza co-accused of the appellant who have been declared Proclaimed Offenders and they are still at large.
11. An overwhelming analysis of the prosecution evidence shows that to prove the ocular account of this case the Muhammad Ilyas, complainant (PW1), Shahbaz Ahmad, injured victim (PW2) and Iftikhar alias Naveed, injured victim (PW3). All the eyewitnesses had duly nominated Raheel Qamar appellant in the FIR as well as in their statements before the police and they had also assigned him specific roles of making fatal fire-shot at Mansoor Maalik deceased which landed on his chest which resulted into his death. While appearing before the learned trial court all the eyewitnesses including both the injured PWs have categorically explained the seat of firearm injuries sustained by the deceased at the hands of Raheel Qamar appellant and his co-accused namely Muhammad Sohail (since Proclaimed Offender), specifying the weapon of offence used by the appellant and above said PO during incident. All of them had explained each and every segment of occurrence in so many words during their statements adduced before the learned trial court inasmuch as they had also explained the mode and manner in which the occurrence had taken place. All of them had categorically given the detail of de-boarding the complainant party from the vehicle in the way to their Dera by the accused. Although they had to endure a lengthy cross- examination by the defence yet they had remained consistent with each other on each and every material point. During their evidence they had sufficiently proved their presence at the place of occurrence at relevant time and witnessing the occurrence vis--vis the culpabilities of the appellant in this case.
12. A perusal of FIR shows that the occurrence in this case has taken place in the way to Dera of complainant party which is situated within the vicinity where both the parties used to reside and the appellant had specifically been nominated by the eyewitnesses and they have unanimously attributed firearm injury to him on the person of Mansoor Maalik deceased. The learned counsel for the appellants has laid great emphasis on the point that the prosecution has examined interested witnesses to prove the ocular account who are not truthful witnesses, the evidentiary value of whom is not above-board to be believed upon them in a blatant manner. We, however, remained unable to appreciate this submission of the learned counsel for the appellant because the law has now well settled on the point that the fact of relationship of the witnesses with the complainant or with the deceased would not be sufficient to smash their evidentiary value of such witnesses or to disbelieve their credibility as well as legal sanctity. Such PWs can be believed if intrinsic worth of their testimony inspires confidence of the court and the same leads to an inference that the witnesses were duly present at the scene of the crime at relevant time and they have seen the occurrence. Reliance is placed on the case of Muhammad Ahmad and another v. The State and others (1997 SCM R 89). Even otherwise the rule requiring independent corroboration of testimony of interested witnesses is a rule of prudence which is not to be applied rigidly in each case especially when the courts of law do not feel necessity. There can be cases like the present one where implicit reliance can be placed on the testimony of related witness if it otherwise inspiring confidence of the Court. As stated above all the eyewitnesses were resident of the same vicinity where the occurrence has taken place so in absence of any solid or concrete reason their evidentiary value cannot be disbelieved at all. All the eyewitnesses are natural witnesses and there was no reason for the prosecution witnesses to falsely depose against the appellant in this case.
Naveed injured victims tried to save Mansoor Maalik deceased from the appellant and other assailants, in result of which both the above said injured victim had also received injuries at the hands of the appellant and other assailants so the token of seat of injuries on their persons sufficiently explain their presence at the place of occurrence at relevant time. We have minutely undergone the cross-examination conducted by the defence upon the above said injured witnesses and we have observed that the defence remained unable to prove that the injured victims namely Shahbaz Ahmad (PW2) and Iftikhar alias Naveed (PW3) have caused self-inflicted injuries on their persons. Even otherwise Shahbaz Ahmad (PW2) received firearm injury on his arm.
We may observe here that nobody dare to cause firearm injury even on non-vital part of his body just to falsely implicate Raheel Qamar appellant in this case. In the background of such a situation their evidence qua implication of the appellant with the commission of offence cannot be disbelieved by this Court especially when they have categorically pointed accusing fingers towards the appellant as the culprit who has perpetrated the offence. So the place of occurrence, presence of eyewitnesses at the spot and the roles assigned by the prosecution to the appellant had been proved through confidence inspiring and reliable evidence of eyewitnesses. In this regard, reliance can easily be placed upon the case of Taj vs. The State (2012 SCM R 43), wherein Hon'ble Supreme Court of Pakistan was pleased to observe as under:- "We have considered the evidence of Khadim Hussain (P.W.1), complainant, two injured witnesses namely Sarfraz (P.W.2) and Gulzar (P.W.3). They have supported the prosecution case and specifically stated that the petitioner Taj had participated in the occurrence and the fire made by the petitioner had hit the deceased on the chest near neck. The injured witnesses had also received numerous injuries during the occurrence and the doctor Muhammad Ashraf (P.W.16) supported the factum of injuries. Thus, their presence at the spot was established. The eye- witnesses were subject to cross-examination but nothing had come to doubt their credibility. Thus, their presence was natural as they sustained injuries along with deceased at the time of the incident. The trial Court has already extended life imprisonment to the petitioner and he is not entitled for any other relief. We are of the view that the impugned judgment of the learned High Court is based on proper appreciation of evidence. This court, normally, does not interfere with the findings of the courts below unless those are arbitrary, fanciful or perverse. No case for leave to appeal is made out."
It was a daylight occurrence and the appellant is resident of the same locality, therefore, there was no chance of mistaken identity of the appellant by the complainant party/eyewitnesses at the spot. The appellant has spent sufficient time at the spot because firstly he had stopped the vehicle and thereafter he alighted the complainant party from the vehicle for committing murder of the deceased as well as causing injuries to the injured victims and the complainant party/eyewitnesses have got ample time to recognize them at the spot and that is why they have nominated them in the FIR so the question of false implication of the appellant due to misconception does not arise in this case. During arguments learned counsel for the appellant raised contention to the effect that if the complainant was actually present at the scene of crime at relevant time then why he has not sustained injuries and remained save from firing. In this context we would like to express here that in the same occurrence one person has lost his life and two persons got injuries on their persons and if the complainant has not received any injury by the hands of assailants then it is a matter of good luck for him and at the same time it is a matter of hard luck for the assailant against whom he had adduced evidence. The complainant at that time was at the mercy of assailants who have opted to cause injuries to the injured victim only and it cannot be inferred from the facts and circumstances of this case that the complainant was not present at the spot at relevant time especially when the defence remained unable to prove this fact by producing reliable and cogent evidence in this regard.
14. Admittedly Muhammad Ilyas, complainant (PW1) was father of the deceased namely Mansoor Maalik whereas other injured victims namely Shehbaz Ahmad (PW2) was his paternal uncle and Iftikhar alias Naveed (PW3) was his driver so it is not expected from such close kith and kin that they would spare the actual culprit to go scot-free by falsely involving the appellant in this case especially in the circumstances when they were well known to the appellant being resident of the same locality. Likewise, the intensity of close relationship of the complainant and the injured victims with the deceased itself demands and expects eradication of substitution of the real culprit in lieu of the appellant which otherwise is a rare phenomena in murder cases. Thus, by considering the matter from all angles it can be said with all degree of certainty that the defence could not shatter or smash the credibility of the evidence adduced by the eyewitnesses before the learned trial court. So the trustworthy evidence adduced by all the three eyewitnesses had motivated our evaluation to put a credible reliance upon the same and believed it as unequivocal. Law is quite settled on the point that substitution of real culprits especially in a case where the eye witnesses had lost their close kith and kin is rare phenomenon. In this regard, reliance can easily be placed upon the case of Sheraz Khan vs. The State (2010 SCM R 1772), wherein Hon'ble Supreme Court of Pakistan has held as under:- No serious enmity whatsoever was alleged against Zaman Shah (P.W.7/complainant) and besides that being real father, the question of substitution of the real culprit with that of Sheraz Khan (appellant) does not arise which otherwise is a rare phenomenon. The statement of Zaman Shah (P.W.7/complainant) has been corroborated by Muslim Shah (P.W.8) who is real brother of deceased.
15. To controvert the mode and manner of occurrence the appellant in his statements under section 342, Cr.P.C. before the learned trial court has taken divergent stands and he has also tried to establish that the murder of Mansoor Maalik was committed by his brother Sohail. We have visited defence evidence with great care and caution and we have made an analysis of the same in the light of ocular account furnished by the three eyewitnesses and we have found that after his arrest and during investigation of this case neither the appellant has taken such stand nor he approached any higher police hierarchy to bring such stance on record of investigation nor any petition has been filed by the appellant in this regard. The different stances taken by the appellant came on record for the first time when he adduced evidence before the learned trial court, thus, we have no hesitation to hold that the stances advanced by the appellant at belated stage is result of an afterthought just to wriggle out from criminal liabilities. Even receiving of injuries on the persons of Mansoor Maalik deceased is not denied by the defence. So we are not inclined to consider or put a worthy reliance upon the defence plea taken by the appellant in his statements under section 342, Cr.P.C. while adducing evidence before the learned trial court.
16. Initially the medical evidence in this case furnished by Zahoor Ahmad Siddiqui, Medical Officer, District Headquarter Hospital, Gujranwala (PW5) who has medically examined both the injuries victims and the deceased when he was shifted in injured condition. Later on when Mansoor Maalik was died, his post-mortem was conducted by Dr. Muhammad Imran Bhatti on 07.06.2007 and both the doctors have found two entry wound of firearm on the same location where the eyewitnesses have mentioned. Both the doctors have further found many punctate abrasions around the wounds. They have also found blackening around the wounds. The seats of injuries and the circumstances in which the eyewitnesses have narrated the occurrence is absolutely in accordance with the medical evidence because all the eyewitnesses have categorically stated that during occurrence the deceased has received two firearm injuries and out of which one firearm injury is attributed to Raheel Qamar appellant. During their evidence the doctors have further explained that death in this case has occurred due to injury No. 1 which resulted irreversible hemorrhagic shock and liver, portahipatis and other parts of abdomen. Dr. Zahoor Ahmad Siddiqui has also medically examined Shahbaz Ahmad, injured (PW2) and Iftikhar alias Naveed (PW3) and found injuries on his person at the same location wherein they have explained during their evidence. The defence has cross-examined both the doctors at length but nothing adverse to the prosecution has been extracted from their mouths. Thus, the medical evidence in all respect provides support to the ocular account in this case.
17. Similarly as mentioned above Raheel Qamar appellant was apprehended on 27.06.2007 and on 06.07.2007 he has got recovered pistols 30 bore (P4) which has been taken into possession vide recovery memo Ex. PF which was sent to the Office of Forensic Science Laboratory on 14.07.2007 whereas the crime-empties of pistol 30 bore collected by the investigating officer from the spot were deposited on 20.06.2007 in the Office of Forensic Science Laboratory much before the arrest of the appellant. The report of Forensic Science Laboratory Ex. PY is positive. Thus, the recovery to this extent provide corroboration to the ocular account in this case.
18. The motive set up by the prosecution in the FIR is that Muhammad Ashraf and Muhammad Afzal were cutting trees from the graveyard and the deceased strictly forbade them from doing so but astonishingly during trial the prosecution has taken 'U' turn and introduced another motive to the effect that the complainant provides help to the accused who committed the murder of appellant's father but during cross-examination Muhammad Ilyas, complainant (PW1) in response to a question replied that neither he has any concern with the accused of murder case of father of present appellant nor he knows their names. In the backdrop of such a situation both the motives established by the prosecution during trial have remained far from being proved.
18. For what has been discussed above we are of the considered view that the prosecution has successfully prove the case against Raheel Qamar appellant beyond any reasonable shadow of doubts. However, at the same time we have considered the sentence of death passed by the learned trial court against Raheel Qamar appellant and we have found that capital punishment of death to him is harsh for the reasons mentioned below: i) The motive set up by the prosecution is not proved and it is settled law that when the prosecution has set up a specific motive then it is the duty of the prosecution and none else to prove the same. ii) As the prosecution failed to prove motive, therefore, the actual cause of death is not known in this case and the same shrouded in mystery. iii) The appellant has been attributed single fire-shot to the deceased and despite of having ample opportunity Raheel Qamar appellant has not repeated fire upon the deceased.
Law is quite settled by now on the point that motive part of the prosecution story can be considered to determine the quantum of sentence of an accused in a murder case, if motive is not proved then this fact can be taken as mitigating circumstance. Reliance is placed on the cases of Muhammad Yaseen v. The State (2011 SCM R 905) and Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCM R 1165) wherein it has been held as under:- "We agree with the proposition that motive is not sine qua non for the proof of commission of the crime and at time motive is not known to any other person other than the deceased or the accused person which never surfaced on the record. However, it cannot be denied that motive is always very relevant to determine the quantum of sentence that might be awarded to a person against whom charge of murder is proved."
These facts are considered by us as circumstances which favouring Raheel Qamar appellant and forbade us to sustain capital punishment of death against him under sections 302(b), PPC. Law is quite settled by now on the point that an accused is entitled for the benefit of an extenuating circumstance while deciding his question of sentence. Reliance is placed upon Mir Muhammad alias Miro vs. The State (2009 SCM R 1188). In another judgment reported as Ansar Ahmad Khan Barki vs. The State and another (1993 SCM R 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 by the case reported as Sharafat Ali Khan vs. The State (2010 SCM R 1205), wherein the Hon'ble Supreme Court has observed as under:- "In Muhammad Riaz and another v. The State (2007 SCM R 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 SCM R 502)."
We have also gathered strength on this point from a very recent judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Ghulam Mohy-ud-Din alias Haji Babu and others v. The State (2014 SCM R 1034) wherein it has been held as under:- "It is a fundamental principle of Islamic Jurisprudence on criminal law to do justice with mercy, being the attribute of Allah Almighty but on the earth the same has been delegated and bestowed upon the Judges, administering justice in criminal cases, therefore, extra degree of care and caution is required to be observed by the Judge while determining the quantum of sentence, depending upon the facts and circumstances of particular case/cases.
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 guidance, in this regard can be laid down because facts and circumstances of one case differ from the other, however, it becomes the essential obligation 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 assessing the evidence, facts and circumstances of a particular murder case, under which it was committed."
So taking the same into consideration we feel that the capital punishment of death to Raheel Qamar appellant will not serve the interests of justice in this case. The above narrated peculiar features of this case convince us that life imprisonment under sections 302(b), PPC would be absolutely in apt with the facts and circumstances of this case. Thus, we reduce the capital sentence of death to Raheel Qamar appellant into the life imprisonment passed against him by the learned trial court. However, the remaining sentences passed against Raheel Qamar appellant with regard to payment of compensation amounting to Rs. 50,000/- to the legal heirs of deceased Mansoor Maalik or in default of payment of compensation to further undergo simple imprisonment for six months is hereby maintained. The benefit under section 382-B, Cr.P.C. is extended in favour of the appellant.
20. An irresistible conclusion is that Criminal Appeal No. 403-J of 2009 filed by Raheel Qamar appellant is dismissed with the modification made in the sentences of the appellant. Consequently Murder Reference No. 543 of 2009 is answered in negative and the sentence of death passed against Raheel Qamar appellant is not confirmed.
21. Now adverting to the case of cases of Muhammd Qsim alias Saqib and Khalid Pervaiz respondents No. 1 and 2 because the complainant has filed appeal against acquittal of the said respondents in respect of offences under sections 302/324/148/149, PPC. In this regard we have observed that Khalid Pervaiz respondent No. 2 has only attributed lalkara at the spot and applied Japha to Iftikhar alias Naveed injured victim who sustained injury on different parts of his body. He has not been attributed any overt act either to the deceased or to any of the injured victim. It does not appeal to a prudent mind that a person would apply Japha and facilitate his co-accused who were armed with firearms to cause injuries to him. Admittedly Khalid Pervaiz is real uncle of Raheel Qamar appellant and he was an advanced age person at the time of occurrence coupled with the fact that he was also blind from one eye. In the background of such a peculiar circumstances a possibility cannot be ruled out of consideration that the prosecution has falsely involved him in this case by widening the net wise which is a common practice in our society so that nobody should remain left behind to pursue case on behalf of the accused persons. Therefore, the learned trial court has rightly come to a conclusion that he is not involved in the occurrence and while appreciating and assessing evidence in its true spirit the learned trial court had acquitted him of the charge and we too have come to a definite conclusion that Khalid Pervaiz respondent No. 2 is not involved in the murder of Mansoor Maalik deceased. As far as case of Muhammad Qasim alias Saqib respondent No. 1 is concerned admittedly he has not caused any injury to the deceased and he has been attributed injury to injured Shahbaz, injured victim (PW2) for which he has already undergone two years rigorous imprisonment for an offence under section 337-A(i), PPC alongwith Daman of Rs. 25,000/- during trial. He has not filed any appeal against his conviction and sentence before this Court. Therefore, convicting him under sections 302(b)/324/148/149, PPC when every accused is responsible for his own act and deed would not serve the interests of justice well especially in the circumstances when he has already undergone his sentence. In the circumstances mentioned above Criminal Appeal No. 2164 of 2009 filed by the complainant is hereby dismissed.