SYED SHAHBAZ ALI RIZVI, J.---The appellant namely Sajjad Ahmad alias Jadu was recommended for prosecution in a case FIR No,634 dated 14-8-2009 under section 302/34, P.P.C. P.S Sambrial, District Sialkot and was convicted by learned Additional Sessions Judge, Sambrial under section 302(b), P.P.C. Vide impugned judgment dated 29-9-2010 and sentenced as under:-- Death under section 302(b), P.P.C. For the murder of Abdul Rauf (deceased) with compensation to the tune of Rs,300,000 under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased and in default thereof, to further undergo six months' S.I.
The appellant was ordered to the hanged by his neck till his death.
2. This single judgment will dispose of the above mentioned Murder Reference No,583 of 2010 along with Criminal Appeal No,4704 of 2010 filed by the appellant.
3. The facts in brief, as disclosed by Mst. Surayya Bibi (P.W.2) complainant in her application (Exh.PB) and FIR (Exh.PB/1) are that on the fateful day i,e, 14-8-2009 Abdul Rauf (deceased) son of the complainant along with Muhammad Usman had gone to the Dera of Inayat Ullah for taking a bath in the water-pond and at about 3-30 p.m. The complainant along with Muhammad Mushtaq (given up P.W.) and Nasir Mehmood (P.W.4), on a motorcycle, reached the Dera of Inayat Ullah for taking her son Abdul Rauf (deceased); in the meanwhile Sajjad Ahmad alias Jadu (appellant), along with an unknown person, emerged there being armed with pistol .30 bore while riding on a Yamaha motorcycle and the appellant fired a shot with his pistol at Abdul Rauf, which landed on the back side of his head and he fell down in injured condition and succumbed to the injury.
The motive for the occurrence was that the appellant, prior to the occurrence, had purloined the goats of the complainant, for which the deceased had spoken harsh words.
3. Muhammad Khalid SI (P.W.12) conducted the investigation of this case, who on 14-8-2009 after having information regarding the occurrence, reached the place of occurrence where the complainant Mst. Surayya Bibi presented application Exh.PB before him, which he sent to the Police Station through Riasat Ali constable for registration of formal FIR; then he drafted application for post mortem examination Exh.PH, prepared injury statement Exh.PJ, inquest report Exh.PK, unsealed site plan Exh.PL; took into possession blood stained earth vide memo Exh.PC, empty of .30 bore pistol vide memo. Exh.PD; recorded statements of the witnesses under section 161, Cr.P.C.; took into possession the last worn clothes of the deceased vide memo Exh.PA; handed over the whole case property to the Moharrar of Police Station; on 20-8-2009 received scaled site plan prepared by the draftsman Exh.PE and PE/1; on 26-8-2009 arrested Sajjad Ahmad (appellant), got his physical remand; on 7-9-2009 recovered pistol .30 bore P.3 from the petitioner, taken into possession vide memo. Exh.PF and thereafter prepared report under section 173, Cr.P.C. And the appellant was sent to Court for facing trial.
4. Learned trial Court after observing all the pre-trial codal formalities, indicted the appellant to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case, produced as many as twelve witnesses. Dr. Asghar Ali, S.M.O, Civil Hospital, Daska (P.W.11) conducted post mortem examination on the dead body of Abdul Rauf (deceased) on 14-8-2009 and observed following injuries on his body:- INJURIES:
(i) A firearm lacerated wound 3/4 x 3/4 cm X DNP. Margins were inverted, circular in shape on back of right side of head, closed to midline, in the occipital region. Wound of entry.
(ii) A firearm lacerated wound 2 x 1-1/2 x DNP. Margins were everted. In front of forehead, left side closed to midline.
REMARKS The medical officer was of the opinion that death occurred due to massive trauma and injury to vital organ i,e, brain which leads to external and internal haemorrhage, pneurogenic shock, cardiopulmonary arrest and ultimately death. The above said injuries Nos.1 and 2 were caused by firearm and were sufficient to cause death in an ordinary course of nature. The injuries were ante- mortem and homicidal in nature. Death occurred immediately and the time elapsed between death and post mortem was about 9 to 12 hours. He also produced the exact carbon copy of post mortem report as Exh.PG along with pictorial diagrams Exh.PG/1 and PG/2 and also endorsed application for post mortem report Exh.PH, injury statement Exh.PJ and inquest report Exh.PK.
5. The prosecution gave up P.Ws. Namely Muhammad Safdar, Rizwan Khan 121/C and Muhammad Mushtaq and by tendering into evidence reports of Forensic Science Laboratory Exh.PO, report of Chemical Examiner Exh.PP and that of Serologist Exh.PQ, closed the prosecution evidence.
6. Statement of the appellant was recorded under section 342, Cr.P.C. Wherein he negated the allegations and professed his innocence.. In reply to the question as to why the case against him and why the P.Ws. Deposed against him, the appellant maintained as under:-- "Neither I went along with any unknown person at the place of occurrence at the time of occurrence nor 1 was armed with pistol .30 bore and never committed murder of said Abdul Rauf deceased. I did not cause any injury to the deceased Abdul Rauf. The deceased along with other persons took liquor and some incident happened there which I do not know about it. 1 did not commit theft of goats belonging to the complainant party. I had been living in city Sialkot. I hardly visit my village. Prior to this occurrence when deceased was living abroad some allegations of theft were levelled against me by the complainant party which were settled between me and complainant party at that time. Due to some grudge, I was falsely involved in this case and P. Ws.
Deposed against me."
The appellant neither opted to lead evidence in his defence nor did he appear as his own witness to make statement on oath in disproof of allegations levelled against him, under section 340(2), Cr.P.C.
7. After conclusion of trial the appellant was convicted and sentenced as mentioned above by the learned trial Court; hence the instant appeal.
8. Learned counsel for the appellant contends that the ocular account of the occurrence, produced by the prosecution is interested one besides being chance witnesses and is discrepant regarding certain facts; that the learned trial court has not appreciated the complete facts available in the evidence while passing the impugned judgment; that the motive part of the occurrence has not been proved by the prosecution through an independent evidence; that the investigation of this case creates doubt about the veracity of the prosecution case, as some other persons were also nominated by the complainant in this case, who were declared innocent during investigation: moreover, the learned counsel for the appellant seriously challenges the recovery of the pistol P.3 on pointing out by the petitioner and also alleges that the crime empties were manipulated by the I.O. And that the Forensic Science Laboratory positive report regarding the weapon of offence is not worthy of credence. Finally, the learned counsel for the appellant contends that as the prosecution case is not free from doubts, hence conviction and sentence awarded to the appellant is not justified. The learned counsel also made assertion that in any case, keeping in view the surrounding circumstances of the case, the death sentence awarded to the appellant is harsh.
9. Conversely, learned D.P.-G. For the State vehemently opposed the contentions raised by learned counsel for the appellant and maintained that it is a daylight occurrence, which is promptly reported by the complainant, who is the real mother of the deceased and the appellant is specifically nominated in the FIR with specific role; that there is no chance of substitution and mistaken identity in this case; that there was no substance available on the file, sufficient to establish the factum of false implication of the appellant; that medical evidence is in consonance with the ocular account and the motive part of the occurrence is also proved; that the prosecution has also proved the fact of recovery of pistol coupled by the positive report of Forensic Science Laboratory; that the seat of injury reflects the desperate intention and act of the appellant; hence he deserves no leniency and that there is no extenuating circumstances, available on the record to extend any benefit to the appellant and the impugned judgment is well-reasoned and does not require any interference by this Court.
10. Having heard the learned counsel for the parties and gone through the record, we have found that it is a case of murder of a young man of the age of 28/29 years, committed in the broad daylight in presence of the witnesses, reported well in time by the complainant with specific role of making fire on the head of the deceased by the appellant. The time, day and place of occurrence is not denied by the defence.
The prosecution has produced three witnesses i,e, Surayya Bibi P.W.2, the complainant along with Muhammad Mushtaq P.W.3 and Nasir Mehmood P.W.4 to prove the ocular account of the occurrence. All these three witnesses deposed in accordance with their statements, recorded before the police without any noticeable deviation or improvement. During cross-examination, all these witnesses remained consistent with each other regarding the actual occurrence and the defence could not point out any material discrepancy in their statements, sufficient to discard their testimony especially regarding the actual occurrence. All the three witnesses faced the rigor of lengthy cross-examination but nothing favourable to the defence could be drawn. In the facts and circumstances, question of substitution does not arise keeping in view the relationship of the complainant with the deceased, who is the real mother and it is not possible that a real mother would let the real murderer of her son go unpunished and nominate an innocent person. As it is a daylight occurrence and the fact that the appellant was known to the P.Ws., has not been denied by the defence, hence possibility of mistaken identity cannot be accommodated. Though the reason for being at the place of occurrence has been sufficiently explained by the witnesses yet the promptitude in reporting the matter to police also confirms their presence at the relevant time.
So far as the nomination of other persons by the complainant during investigation is concerned; it is not a fact, sufficient to doubt the veracity of the prosecution case as according to the narration of FIR, an unknown person was also accompanying the appellant at the time of occurrence. So, it was natural on the part of the complainant to nominate the persons to dig out the unknown person, though the same nomination remained fruitless yet it cannot affect the prosecution case adversely to the extent of the appellant in any manner.
Learned counsel for the appellant raised objection regarding the status of the witnesses but it is, by now, an established proposition of law that mere relationship of the witnesses with the deceased is not sufficient to declare them interested witnesses, especially when there is no reason available to the witnesses for false implication of the appellant, in this regard reference is made to case titled "Muhammad Mansha v. The State, reported as 2001 SCMR 199; Muhammad Ahmad and another v.
The State and others" reported as 1997 SCMR 89. In the case titled "ljaz Ahmad v. The State" reported as 2009 SCM R 99, the Apex Court has held as under:-- "...In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may he found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him..."
Keeping in view the facts, discussed in the preceding lines, we are of the view that the prosecution remained successful to prove the occurrence of murder against the appellant through the ocular account given by P.W.2, P.W.3 and P.W.4 beyond any shadow of reasonable doubt by discharging its responsibility to prove the same.
11. Now we take up the medical evidence of this case; the ocular account produced by the prosecution is completely in line with the medical evidence. P.W.11 Dr. Asghar Ali, SMO, appeared to prove the unnatural death of the deceased through post mortem report Exh.PG, which reflects that the injury available on the head of the deceased was caused by firearm and the death of the deceased occurred due to the same injury, so it can safely be held that the medical evidence is completely in consonance with the ocular account.
12. So far as the motive part of the occurrence is concerned; we are of the view that the prosecution could not establish it beyond reasonable doubt as the statement of P.W.2 Surayya Bibi who is the complainant of this case, remained uncorroborated regarding the motive. No other P.W. Uttered even a single word to corroborate her. Even no time and day of motive occurrence of theft of goats and of admonishing the appellant is given by the complainant. During cross-examination, Surayya Bibi has maintained that "I informed the police about the theft of goats but they did not give me any copy of FIR". But nothing could be brought on record by the complainant to prove her stance regarding the motive; no independent evidence has been produced in this regard. It has also been noticed by us that at the time of occurrence of motive, the deceased was not available in the country while it is also noticed that the complainant, according to her own statement, was the person who reported the occurrence of motive to the police but she was not hurt by the accused at the time of occurrence. These circumstances indicate that the real facts which were the actual cause of murder could not be surfaced during the evidence and as such remained shrouded in mystery. In this view of the matter, we are of the considered opinion that the motive part of the occurrence is not proved beyond doubt against the appellant.
13. Similarly, the prosecution evidence reflects that the appellant was arrested on 26-8-2009 as is stated by the I.O. Of this case while according to the defence, the appellant was arrested on 17-8- 2009 but it is an admitted fact that the arrest of the appellant was effected prior to the dispatch of crime empties to the office of Forensic Science Laboratory on 3-9-2009 through Nawaz constable No,369, so keeping in view the prevailing unfortunate practice and trend of police officials in our society, the possibility of manipulation of crime empties by the I.O. To ensure the positive report of Forensic Science Laboratory against the appellant, cannot be ruled out. Moreover, it has also been observed by this Court that the prosecution witnesses i,e, P.W.8 and P.W.12 the I.O. Who are the witnesses of recovery of weapon of offence pistol P.3 are discrepant inter se regarding certain aspects of their testimony; hence we are of the considered view that positive report of Forensic Science Laboratory is inconsequential in the peculiar circumstances of this case.
14. For what has been discussed above, though the evidence of motive and recovery of crime weapon, as alleged against the appellant, have been disbelieved by us, yet keeping in view the cogent, unimpeachable and confidence inspiring direct evidence, corroborated by the medical evidence, such like flaws can be treated as immaterial, however, the same can be used as an extenuating circumstance while awarding the sentence to an accused person.
15. By now it is settled principle of law that while deciding question of sentence, the accused is entitled to the benefit of any available mitigating circumstance. The Hon'ble Supreme Court in the case titled Mir Muhammad alias Miro v. The State (2009 SCMR 1188) has been pleased to observe as under:-- "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 are also entitled to extenuating benefit of doubt to the extent of quantum of sentence.
The August Court, in another case titled "Muhammad Riaz and another v. The Slate and another" reported as 2007 SCMR 1413 while considering the penalty for an act of commission of Qatl-i-amd, has observed that:- "No doubt normal penalty for an act of commission of Qatl-iamd provided under law is death but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the fact and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case."
While in another judgment titled "Iftikhar Ahmad Khan v. Asghar Khan and another" reported as 2009 SCMR 502, it has been noted that:-- "In other words, the law has conferred discretion upon the Court to withhold the penalty of death and to award the punishment for imprisonment of life if an outlook of case requires that course........"
In view of what has been discussed above, while maintaining the conviction of Sajjad Ahmad alias Jadu appellant under section 302(b), P.P.C. For the murder of Abdul Rauf deceased, his sentence of death is converted into imprisonment for life as Ta'zir under section 302(b), P.P.C. The amount of compensation of Rs,300,000 under section 544-A, Cr.P.C. And in default to further undergo six months' SI, as ordered by the learned trial Court shall remain intact. Benefit of section 382-B, Cr.P.C.
Shall be extended to the appellant. The instant appeal No.470-J of 2010 stands dismissed with the above modification in the quantum of sentence of the appellant.
The Murder Reference No,583 of 2010 is answered in the NEGATIVE and the death sentence awarded to him is not confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.