Sadaqat Ali Khan, J.: This single judgment shall dispose of Criminal Appeal No.319-J of 2010 filed by Sajjad Haider alias Baga appellant through jail (against his conviction) and M.R. No.37 of 2010 sent by learned trial court for confirmation of the death sentence of the appellant Sajjad Haider alias Baga or otherwise as both the above stated matters have arisen out of the same judgment dated 20.07.2010 passed by learned Additional Sessions Judge, Tehsil Sadiqabad District Rahimyar Khan according to which the present appellant was convicted and sentenced as under:- Sajjad Haider alias Baga was convicted under section 302(b) PPC and sentenced to death for committing Qatl-e-Amd of Zumarad Raza along with compensation Rs.2,00,000/-under section 544-A Cr.P.C payable to legal heirs of the deceased in default thereof further under six months S.I. in case FIR No.396 dated 09.06.2009 under section 302 PPC police station City Sadiqabad, District Rahimyarkhan.
2. The facts of the case have been stated by Safdar Raza PW-2 complainant real father of Zumarad Raza deceased in his statement before the learned trial court and same statement is hereby reproduced for narration of the facts:- "I have five sons and one daughter. Sajjad Haidar my son had a dispute with another son Ijaz Ahmed. Zamard Raza deceased had been living at satellite town Sadiqabad. Zamarad Raza deceased was helping me and Ijaz Haidar in the said dispute. Sajjad Haidar had been saying to Zumarad Raza for not to be held me and Ijaz Haidar. Previously Sajjad Haidar had been launching threats and once he went to satellite town to kill Zamarad Raza case FIR No.192/09 U.S. 452 PPC stands registered against Sajjad Haidar. On 09.06.2009 at about 018:45 p.m. I was present at Sultan Chappar hotel Satellite town alongwith Muhammad Yaqoob, Muhammad Riaz, Zamarad Raza and others. After a short while Sajjad Haidar present in the Court reached there on a motorbike. At this arrival at first Sajjad Haidar started abusing Zamarad Raza.And said that he has come to teach lesson to Zamarad Raza for helping me and Ijaz Haidar. Zamarad Raza was sitting on a bench who stood up. All of a sudden Sajjad Haidar picked pistol from his pocket and started in discriminate firing upon Zamarad Raza, the fires of Sajjad Haidar landed on both thighs of Zamarad Raza which went through and through. Zamarad Raza fell down being unconscious. I alongwith PWs tried to catch hold of Sajjad Haidar who made aerial firing and went away after intimidating us. We put Zamarad Raza in a car and took him to hospital. Thereafter police reached in the hospital I made application Exh.PA to the police. Police sent the same to police station for registration of the case.
Zamarad Raza was alive at that time but was unconscious. Some body made a telephonic calls to the police that Sajjad Haidar was present at Railway station and was going to escape. Police went there and in their absence Zamarad Raza succumbed to the injuries."
3. After registration of the case, investigation started and on completion of the same report under section 173 Cr.P.C was submitted in the trial court.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 09.10.2009 against the present appellant/convict Sajjad Haidar alias Baga under section302 PPC to which he pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Ijaz Haider PW-1, Safdar Raza PW-2, Muhammad Yaqoob PW-3, Dr. Mushtaq Ahmed Azmi PW-4, Shams-ul-Haq SI PW-5, Asghar Ali PW-6, Muhammad Ramzan PW-7, Muhammad Asif PW8, Tasadiq Hussain SI PW-9 and Muzafar Hussain ASI PW-10 whereas PWs namely Qamar Raza and Riaz Ahmed were given up by the prosecution being un-necessary and after tendering documentary evidence i.e. application to SHO Exh.PA, FIR Exh.PA/1, memo of possession of blood stained earth Exh.PB, memo of possession of empty cartridge Exh.PC, memo of recovery of pistol 30-bore Exh.PD, memo of recovery of motorcycle Exh.PE, postmortem report Exh.PF, injury plan Exh.PG, inquest report Exh.PH, memo of possession of clothes of deceased Exh.PK, receipt of dead body Exh.PM, site plan Exh.PN and Exh.PJ, report of chemical examiner Exh.PO, Forensic Science Lab. Punjab Lahore Exh.PP, and closed the prosecution evidence.
6. Medical evidence was furnished by Dr. Mushtaq Ahmad Azmi PW-4, who stated that on 10.06.2009 he conducted the postmortem examination on the dead body of Zamurd Raza deceased and observed as under:- INJURIES
1. A rounded wound of entry on the outer aspect of left thigh 15 cm below the left iliac crest, measuring 0.5x0.5 cm. the edges of wound were inverted, lacerated and were burnt. The track of wound was going deep into the muscles, rupturing the major blood vessels and going out of the thigh on its inner side.
2. A round wound of exit on the inner side of left side measuring 0.75 x 0.75 cm. The edges of the wound were everted and wound was communicating with injury No.1.
3. A rounded wound of entry on the medial side of right thigh 15 cm below the right inguinal ligament measuring 0.75 cm x 0.75 cm. The track of wound was going deep into the muscles.
Rupturing the major blood vessels and going out the rupturing the lateral aspect of right aspect of right thing. (4) a rounded wound of exit on the lateral side of right thigh measuring 2.5x 2.5 cm, 15 cm below the right iliac crest. The edges of wounds were everted. The wound was communicating with injury No.(5) A rounded wound of entry on the posteriolateral aspect of right gluteal region just below the lower border of rigluteal region measuring 0.5x0.5 cm. The edges of wound were inverted and lacerated. The wound was going deep into the muscles rupturing the major blood vessel and going out from the inner aspect of right thigh. (6) A rounded wound of exit, with everted margins on the inner aspect of right thigh measuring 0.75 x 0.75 cm. The wound was continuous with injury No.5. (7) A round wound of entry on the inner side of left thigh measuring 0.75 x 0.75 cm, 10 cm below the left inguinal ligament. The edges of wound were inverted the wound was going deep rupturing the muscles and major blood vessels. The wound was going out on the lateral aspect of left side (8) A rounded wound of exit on the outer aspect of left thigh, 12 cm below the left iliac crest measuring 2.5 cm x 2.5 cm. The wound was communicating with injury No.7. The edges of the wound were everted.
2. Cranium and spinal cord.
All the visceras related to it were found heal
3. Thorax.
All the visceras related to it were found heal
4. Abdomen.
All the visceras related to abdomen were found healthy.
5. Muscles, bones and joints: As already declared. No disease or deformity fracture or dislocation were found.
6. Remarks by Medical Officer.
Keeping in view of all the facts, the most probable cause of death was declared hemorrhage shock which was resulted by all injuries collectively. All the injuries were ante-mortem in nature. The kind of weapon used was firearm. The haemorrhage shock resulted in cardiopulmonary arrest.
The probable time elapsed between the injuries and death was about 30 minutes while time between death and postmortem was within 11 hours.
7. On the other hand, statement of present appellant Sajjad Haidar alias Baga was recorded under section 342 Cr.P.C who refuted the allegations so leveled against him and has not opted to appear under section 340(2) Cr. PC and he also did not produce oral defence evidence. However, he produced statement of Muzaffar Hussain as Exh.DA and in reply to question "why this case against you and why the PWs deposed against you?" the appellant Sajjad Haidar alias Baga replied as under: - "I own property like shops on the main Jamaldinwali road. My father so many times asked me the shops be given to him as it is a common property belongings to him and my other brothers but I do not give any consent to do so, that is why my father became inimical to me. Earlier to this case my father (complainant) a false under section 452/506 PPC also registered against me. The PWs of that case Muhammad Yaqoob and Muhammad Riaz are also in this case. They are interested and inimical with me."
8. After conclusion of the trial, learned trial court convicted the present appellant Sajjad Haidar alias Baga with above stated sentences through judgment dated 20.07.2010. Hence this appeal.
9. Learned counsel for the appellant contended that:-
(i) the judgment of the trial court dated 20.07.2010 is against law and facts on the file and is liable to be set-aside.
(ii) that the prosecution has failed to prove its case against the present appellant as there are many major discrepancies in the statements of the PWs and the learned trial court has convicted the appellant on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law;
(iv) lastly submitted that appeal may be accepted and the judgment of the trial court dated 20.07.2010 may kindly be set aside and appellant may be acquitted.
10. On the other hand, learned DPG assisted by learned counsel for the complainant has vehemently opposed the appeal and submitted that: -
(i) prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal.
11. We have heard the learned counsel for the parties and perused the record.
12. The detail of prosecution case as given by Safdar Raza PW-2 complainant real father of Zumarad Raza has already been given in para 2 of this judgment, therefore, there is no need to repeat the same to avoid the duplication and repetition.
13. According to the FIR occurrence took place on 9.6.2009 at 08:45 p.m whereas FIR was registered on the same day at 09:30 p.m which is prompt one.
14. Deceased of this case is Zumarad Raza real brother of present appellant Sajjad Haider alias Baga. Safdar Raza complainant PW-2 is their real father. Safdar Raza PW-2 and Muhammad Yaqoob PW-3 claim themselves to be the eye witnesses of the occurrence.
15. Safdar Raza PW-2/complainant and Muhammad Yaqoob PW-3 stated before trial Court that on 09.6.2009 at 8:45 p.m. they were present at Sultan Chappar hotel Satellite Town alongwith Muhammad Riaz (given up PW), Zamarad Raza (deceased) and others. After a shot while present appellant Sajjad Haider alias Baga reached there on a motorcycle. They stated that the present appellant started abusing Zamarad Raza deceased by saying that he would teach a lesson for helping Ijaz Haider PW-1 and Safdar Raza PW-2. They further stated before the trial court that the present appellant Sajjad Haider alias Baga then picked up a pistol from his "Naipha" and made indiscriminate firing upon Zumarad Raza deceased which landed on his both thighs. After receiving fire shots, Zumarad Raza fell on the ground.
16. These two witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated each other on all material aspects of the case. Their evidence is trustworthy, straightforward and confidence inspiring. Their presence at the time of occurrence at the place of occurrence with stated reason cannot be considered improbable or unnatural.
17. Medical evidence was furnished by Dr. Mushtaq Ahmad Azmi PW-4 whose detail are given in para 6 of this judgment, therefore no need to repeat the same to avoid duplication and repetition.
However, all the injuries on the person of Zumarad Raza were ante-mortem in nature and were the result of firearm weapon. Therefore, medical evidence has fully supported the ocular account furnished by Safdar Raza PW-2 and Muhammad Yaqoob PW-3.
18. Muhammad Yaqoob PW-3 stated that on 5.7.2009 Sajjad Haider alias Baga present appellant during interrogation disclosed and led to the recovery of pistol P-5 from a briefcase lying in his residential room of the house situated in Basti Latifabad Sadiqabad which was taken into possession through recovery memo Ex.PD.
19. Place of recovery/house of the present appellant is situated in Basti Latifabad Sadiqabad whereas Muhammad Yaqoob PW-3 (recovery witness) is resident of Satellite Town, Sadiqabad and is not resident of Basti Latifabad i.e. place of recovery.
20. Shamsul Haq SI PW-5 I.O of this case has not associated any person from locality of place of recovery in the recovery proceedings. Such recovery evidence is not worthy of any credence and could not be used against the accused in the circumstances. Reliance is placed on case titled Ghulam Akbar and another Vs. The State (2008 SCM R 1064) in which Hon'ble Supreme Court of Pakistan has observed at pages 1071 & 1072 as under: - "in the instant case, recovery witness Nazir Ahmed was not the resident of the locality and the Investigating Officer admitted that the place of recovery was surrounded by the 50/60 houses but none was summoned from the locality. According to PW-12 he was standing at a bus stand and was going to Sinjhoro (where he lived) when police reached there and he just accompanied them.
Court did not take the above mentioned circumstances while placing reliance on the evidence and has erred in law. The recovery evidence is not worthy of credence and cannot be used against any of the appellants"
21. Further, Asghar Ali constable PW-6 stated that on 25.6.2009, Manzoor Hussain ASI (Moharrar of police station City Sadiqabad) handed over sealed parcel containing four empties to him which he deposited the same on 26.6.2009 in the concerned office intact.
22. On the other hand, Muzaffar Hussain ASI PW-10 stated that on 24.6.2009, he handed over a sealed parcel containing empties to Asghar Ali constable PW-6 for onward transmission to the office of FSL.
23. The above noted contradiction between the statements of these two witnesses is not ignorable.
24. Considering above, positive report of FSL Ex.PP regarding matching of crime empties with 30- bore pistol P-5 has lost its evidentiary value.
25. Safdar Raza complainant PW-2 stated in the FIR regarding motive of the occurrence as under: - {{URDU TEXT}}
26. Ijaz Haider himself appeared as PW-1 and stated before the trial court as under: - "On 9.6.2009 I identified dead body of my deceased brother Zamarad Raza before the police at THQ hospital Sadiqabad and on 10.6.2009 I identified said dead body before the doctor as well. The I.O also recorded my statement in this regard".
27. Considering above, Ijaz Haider PW-1 did not utter a single word that there was litigation between him and present appellant and Zumarad Raza deceased was helping him against present appellant. Safdar Raza complainant PW-2 while appearing before the trial court has made dishonest improvement regarding motive story and stated before the trial court that Zumarad Raza deceased was helping him and Ijaz Haider PW-1 in the dispute. Whereas he has not stated so in the FIR, rather, has stated that Zumarad Raza was only helping Ijaz Haider PW-1 in the litigation against present appellant. Even otherwise, Ijaz Haider PW-1 himself while appearing before the trial court did not utter a single word regarding the motive story of the prosecution, the statement of Safdar Raza complainant PW-2 to the extent of motive story that Zumarad Raza deceased was helping Ijaz Haider PW-1 against present appellant in the litigation between Ijaz Haider PW-1 and present appellant is not believable.
28. Considering above, we are of the opinion that prosecution has failed to prove motive.
29. Adverting to the defence plea of the present appellant Sajjad Haider alias Baga he stated in answer to question "why this case against you and why the PWs deposed against you?" as under:- "I own property like shops on the main Jamaldinwali road. My father so many times asked me the shops be given to him as it is a common property belongings to him and my other brothers but I do not give any consent to do so, that is why my father became inimical to me. Earlier to this case my father (complainant) a false under section 452/506 PPC also registered against me. The PWs of that case Muhammad Yaqoob and Muhammad Riaz are also in this case. They are interested and inimical with me."
He did not appear as a witness under section 340(2) of Cr.PC. and also did not produce any oral defence. However, he produced document Ex.DA in documentary evidence. Considering above it is concluded that appellant has failed to prove his defence plea and learned trial court has rightly discarded his defence plea with sufficient reasons.
30. Although we have disbelieved recovery of pistol P-5 and motive, yet the prosecution has proved its case beyond shadow of doubt against the present appellant through ocular account furnished by Safdar Raza PW-2 and Muhammad Yaqoob PW-3 duly supported by medical evidence as discussed earlier.
31. Coming to the quantum of sentence, we have observed some mitigation circumstances in the present case. Firstly, we have disbelieved recovery of pistol P-5. Secondly, evidence of motive has been disbelieved in para 27 of this judgment. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which resulted into present unfortunate incident. Therefore, in our view death sentence awarded to the present appellant is harsh.
32. It is well recognized principle by now that the accused is entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence as well. In this regard we respectfully refer the case of Meer Muhammad alias Meero Vs. The State (2009 SCM R 1188) wherein the Hon'ble Supreme Court of Pakistan has held 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.
33. Further reliance is placed on case Zafar Iqbal and others v. The State (2014 SCM R 1227) in which Hon'ble Supreme Court of Pakistan has observed at pages 1235 & 1238 as under: - "the question of awarding of sentence is required by law to be adverted to in every criminal case and it is the duty of the Court to always consider this aspect of the matter while awarding sentence. In the present case trial Court has awarded death sentence to the appellants, which has been maintained by the High Court and the murder reference has been answered in positive. On examination of the record certain facts have come to light, which needs to be given serious consideration and they probably have in them material on the basis of which the case of mitigation in sentences could be found. Although in the ocular account it is alleged that appellant Iftikhar has fired with a rifle at Jaffar Hussain deceased on his head and he has also fired at Abdaal Hussain deceased on the left side of his chest but the prosecution has not been able to secure or recover any firearm from this appellant. At the same time appellant Asghar Iqbal is alleged to have fired with his rifle at Abdaal Hussain deceased on his left ear with his rifle. Although 7 mm rifle was recovered on the pointation of this appellant but no recovery of empty of this rifle was made from the place of incident and there is no report of Forensic Science Laboratory (FSL) of connecting the recovered 7 mm rifle with the two crime empties recovered from the place of incident. It is also noted that the real motive as propounded in the prosecution version was against deceased Jaffar Hussain in that he was the one, who has beaten appellant Iftikhar. The motive being against deceased Jaffar Hussain, it is not understandable as to why the appellant after having murdered Jaffar Hussain will proceed covering distance and murder Jaffar Hussain's two sons, namely, Abdaal Hussain and Abrar Hussain. This will go to show that something very obnoxious may have happened at the place of occurrence of which neither the prosecution has given any evidence nor the same has come out from the side of defence. Thus the immediate circumstance or cause for the happening of the events, which culminated into the murder of three persons namely, Jaffar Hussain, Abdaal Hussain and Abrar Hussain are altogether shrouded in mystery"
"All the above factors in the light of the law laid down by this Court as discussed above lead us to the conclusion that there are sufficient extenuating circumstance, on the basis of which the appellants could not be made liable to the maximum punishment provided under section 302(b)
PPC, rather the ends of justice would be met, if their death sentence is converted into imprisonment for life. While maintaining the conviction of the appellants and modifying the sentence benefit of section 382-B Cr.P.C, this appeal is partially allowed in the above terms".
34. For the foregoing reasons, conviction of present appellant u/s 302(b) PPC is maintained but his sentence is altered from death to life imprisonment. Compensation and sentence in default thereof are also maintained. The benefit of section 382-B Cr.P.C is also given to the appellant Sajjad Haider alias Baga. Consequently, with the above said modification in the sentence of Sajjad Haider alias Baga present appellant, Criminal Appeal No. 319-J of 2010 filed by Sajjad Haider alias Baga is hereby dismissed. M.R No.37 of 2010 is answered in NEGATIVE and death sentence of Sajjad Haider alias Baga present appellant is NOT CONFIRMED.