Shehram Sarwar Ch. J:- Shahid Imran (appellant) alongwith his co-accused namely Nasir Ahmad, Riaz Ahmad, Shahid Ahmad, Qaiser Abbas, Fiayaz Ahmad and Irshad Ahmad was tried by the learned Additional Sessions Judge, Hafizabad in case FIR No.345/2009, dated 11.12.2009, offences under Sections 302, 449 and 149 PPC, registered at Police Station Kassisay District Hafizabad for the murder of Muhammad Nawaz (deceased), brother of the complainant. Vide judgment dated 02.12.2010 passed by the learned Additional Sessions Judge, Hafizabad, Shahid Imran (appellant) has been convicted under Section 302(b) PPC and sentenced to death with a further direction to pay Rs.1,00,000/- (rupees one lac only) as compensation under Section 544-A, Code of Criminal Procedure to the legal heirs of the deceased and in default whereof to further undergo six months S.I. However, by the same judgment co-accused of the appellant namely Nasir Ahmad, Irshad Ahmad, Riaz Ahmad, Shahid Ahmad and Fiayaz Ahmad have been acquitted of the charge as they were found innocent during the trial whereas Fiayaz Ahmad has been acquitted under Section 265-K, Code of Criminal Procedure by extending him benefit of doubt. Assailing the above conviction and sentence, Shahid Imran (appellant) has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No.655 of 2010 for confirmation or otherwise of sentence of death awarded to Shahid Imran (appellant), as required under Section 374, Code of Criminal Procedure. Sarfraz Ahmad (complainant) also filed Crl. Appeal No.55/2011 against acquittal of Nasir Ahmad, Shahid Ahmad s/o Umer Hayat, Riaz Ahmad, Shahid Ahmad s/o Muhammad Yaqoob, Qaiser Abbas and Fiayaz Ahmad, which was dismissed summarily under Section 421, Cr.P.C. By a learned Division Bench of this Court vide order dated 28.05.2013. As both these matters i.e. Crl. Appeal No.425-J/2010 and Murder Reference No.655/2010 have arisen out of the same judgment, therefore, shall be decided together through this single judgment.
2. Precisely, facts of the case, as contained in the FIR (Ex.PL) registered on the written application (Ex.PJ) of Sarfraz Ahmad, complainant (PW.7) are that he (complainant) was resident of Khidday.
On 11.12.2009 at about 7.30 a.m. The complainant alongwith his brothers namely Muhammad Nawaz, Khizer Hayat and maternal nephew (bhanja) Ansar son of Younas, resident of Peelu was sitting in his house. All of a sudden, Riaz Ahmad, Irshad, Fiayaz, Qaiser, Shahid Imran sons of Muhammad Yaqoob, Nasir and Shahid both sons of Umer Hayat, all Kharal by caste, residents of the same village duly armed with rifles entered the house. On arrival, Nasir raised a lalkara to teach a lesson to Muhammad Nawaz etc. For opposing in a case and fired with his rifle which did not hit anyone. Other co-accused also made straight fires with their respective rifles on the complainant party. Shahid Imran (appellant) fired a rifle shot which landed on the head of Muhammad Nawaz, who fell down in injured condition. Remaining accused also made firing which hit on the doors and walls and went away while making firing. The complainant's side was trying to take Muhammad Nawaz injured to the hospital but he succumbed to the injury in the way. It is mentioned in the FIR that the complainant as well as his brother Khizer Hayat and Ansar son of Younas have witnessed the occurrence.
Motive behind the occurrence as alleged in the FIR was that a criminal litigation was going on between the accused persons and one Muhammad Iqbal son of Ali Muhammad wherein brother of the complainant used to help said Muhammad Iqbal, which nourished the grudge.
3. After completion of investigation, report under Section 173, Code of Criminal Procedure was submitted in the case. The appellant and his co-accused were summoned by the learned trial court to face the trial and after fulfillment of required formalities, they were charged sheeted under Sections 302, 449 and 149 PPC on 05.05.2010. After prosecution evidence, statements of the appellant and his co-accused under Section 342, Code of Criminal Procedure were recorded on 15.11.2010, wherein they refuted all the allegations of the prosecution and professed their innocence.
In answer to a question as to why the case against him and why the prosecution witnesses had deposed against him, Shahid Imran (appellant) replied as under:- "I am innocent. I am youngest brother of co-accused Fiayaz, Riaz, Irshad and Qaiser. On the day of occurrence, early in the morning I was sleeping in my home which is situated at distance 1 1/2 acres from the place of occurrence. I did not take participate in the occurrence. I was not present at the places of occurrences where Nasir was injured and deceased Nawaz was murdered. In fact, deceased Nawaz was murdered by the hands of complainant party who were present in the home because they were making fires from inside the home. I had no rifles 7MM. On the day of occurrence, Nasir injured and Fiayaz were going to P.S. Kassisay riding on motorcycle to report the matter which was taken place one day prior to the occurrence in which females Sidra Bibi and Tanzeela Bibi were injured, against complainant party Sarfraz, Ahmad Fraz, Khizar Hayat, Nazar Muhammad, Umar Hayat, Kalu etc at 7;00 a.m. At the day of occurrence, Ahmad Fraz alongwith other accused fired which was hit to Nasir. With hue and cry Nasir and Fiayaz, Qaiser, came out from his house and they did aerial firing to rescue Nasir. Complainant Sarfraz alongwith other companions went to their homes while firing. All the members of complainant party were making fires from inside the house, due to their firing Nawaz deceased was murdered at the spot inside the home of complainant Sarfraz. PWs are related interse and partisan interested."
The appellant did not appear as his own witness as provided under Section 340(2) Code of Criminal Procedure. However, he produced report of the Chemical Examiner (Ex.DE), attested copy of FIR No.16/2010 dated 20.01.2010 P.S. Kassisay (Ex.DF), attested copy of MLD of Sidra Bibi dated 10.12.2009 (Ex.DG), attested copy of MLC of Tanzila Bibi dated 10.12.2009 (Ex.DH) and attested copy of MLC of Nasir injured (Ex.DJ) in his defence. After conclusion of the trial, the learned trial court convicted and sentenced the appellant as detailed above whereas co-accused of the appellant namely Nasir Ahmad, Irshad Ahmad, Riaz Ahmad, Shahid Ahmad and Fiayaz Ahmad have been acquitted of the charge as they were found innocent during the trial whereas Qaiser Abbas has been acquitted under Section 265-K, Code of Criminal Procedure by extending him benefit of doubt. Hence this appeal and murder reference.
4. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that Sarfraz Ahmad, complainant (PW.7) and Khizer Hayat (PW.8) are closely related to the deceased as they are real brothers interse and as such, their evidence cannot be relied upon; that in fact on the day of occurrence, Nasir Ahmad and Fiayaz Ahmad co-accused of the appellant were going to Police Station Kassisay to get a case registered against the complainant party with regard to the occurrence which had taken place one day prior to this occurrence in which Sidra Bibi and Tanzeela Bibi were injured and when they reached near wheat grinding machine of Mistri Rehmat, Ahmad Faraz alongwith others fired at them which hit Nasir Ahmad; that due to hue and cry of Nasir and Fiayaz, Qaiser Abbas came out of his house and made aerial firing to rescue Nasir Ahmad, thereafter, the complainant and others went to their homes while making fires and continued firing from inside the house and due to their firing Muhammad Nawaz (deceased) was murdered at the spot in the house of complainant; that a specific motive has been alleged in the FIR and before the learned trial court but the same has not been proved and even the complainant has not produced any evidence regarding the motive part of occurrence before the investigating officer during investigation; that the ocular account is not supported by the medical evidence; that the recovery of rifle 7MM (P.6) alongwith five live bullets (P.7/1-5) allegedly at the instance of the appellant is inconsequential as no empty was recovered from the spot and the report of Forensic Science Laboratory is simply to the effect that the weapon is in working order; that the version of the appellant in his statement under Section 342, Cr.P.C. Is more probable and convincing and gets support from prosecution's own evidence; that six other co-accused namely Nasir Ahmad, Riaz Ahmad, Shahid Ahmad, Qaiser Abbas, Fiayaz Ahmad and Irshad Ahmad were also implicated in this case, they were tried alongwith the appellant but ultimately acquitted of the charge and Crl. Appeal No.55/2011 filed against their acquittal was dismissed summarily by a learned Division Bench of this Court vide order dated 28.05.2013, which has not been assailed any further; that the prosecution has miserably failed to prove the charge against the appellant and he is entitled to acquittal.
5. On the other hand, learned Deputy District Public Prosecutor, assisted by learned counsel for the complainant, vehemently opposes this appeal on the grounds that this incident took place on 11.12.2009 at 7.30 a.m. And the matter was reported to the police on the same morning at 10.00 a.m. i.e. Just after two and a half hours of the occurrence; that both the witnesses of ocular account are residents of the same house wherein this occurrence took place and their presence in their own house alongwith their brother Muhammad Nawaz (deceased) is quite natural and probable; that the ocular account gets full support from the medical evidence available on the record and further corroborated by the recovery of rifle (P.6) alongwith five live bullets (P.7/1-5) at the instance of the appellant; that a specific motive has been set up in the FIR and before the learned trial court which stood proved through the statements of Sarfraz Ahmad, complainant (PW.7) and Khizer Hayat (PW.8). So far as the acquittal of co-accused of the appellant is concerned, learned counsel for the complainant contends that no active role was assigned to them as Nasir Ahmad was accused of raising lalkara and he (Nasir Ahmad) as well as other co-accused made firing whereas the only firearm injury on the head of Muhammad Nawaz (deceased) was attributed exclusively to the appellant, who was found fully involved during the course of investigation; that the plea of the appellant taken by him during his statement recorded under Section 342, Code of Criminal Procedure is just an afterthought and he did not appear as his own witness as provided under Section 340(2) Code of Criminal Procedure and even no witness has been produced by the appellant to prove the documentary evidence produced by the appellant in his defence.
6. We have heard arguments of learned counsel for both the sides to their entire satisfaction, given serious consideration to their respective submissions and also perused the record.
7. This incident, wherein Muhammad Nawaz brother of the complainant lost his life, as per FIR (Ex.PL) took place on 11.12.2009 at 7.30 a.m. The matter was reported to the police on the same morning at 10.00 a.m. By the complainant through his application (Ex.PJ) and the formal FIR was registered vide Rapat No.6. The distance between the place of occurrence and the police station is eleven kilometers. Even the postmortem examination on the dead body of the deceased was conducted on the same day i.e. 11.12.2009 at 02.30 p.m. Considering all the relevant circumstances, we are of the view that the matter was reported to the police with due promptitude.
8. The ocular account in this case has been furnished by Sarfraz Ahmad, complainant (PW.7) and Khizar Hayat (PW.8). Both the witnesses of ocular account are real brothers of the deceased but merely because of their inter se relationship or with the deceased, their evidence cannot be discarded. Both of them are residents of the same house wherein this incident took place. The presence of the complainant and other witness of the ocular account in their own house alongwith the deceased at relevant time cannot be considered unnatural or improbable. Even otherwise, substitution in such like cases is a rare phenomenon, as the kith and kin of the deceased will not implicate an innocent person by letting off the real culprits.
9. So far as medical evidence is concerned, in the FIR and before the learned trial court, it was the case of prosecution that Shahid Imran (appellant) fired with rifle at Muhammad Nawaz (deceased) brother of the complainant, which landed on his head. Dr. Asghar Ali Hanjara, Medical Officer (PW.4) conducted postmortem examination on the dead body of the deceased and noted the following injury:-
1. Fire arm wound of entry 2 cm x 2 cm x going into back upper part of left side of back of the head.
Marginal were not burnt. Tattooing was not present and edges were inverted. No wound of exit.
Same was the position in postmortem examination report (Ex.PB) of the deceased, therefore, we are of the view that the ocular account is fully supported by the medical evidence.
10. So far as the motive is concerned, it was alleged in the FIR and stated before the learned trial court that criminal litigation was going on between the accused persons and one Muhammad Iqbal son of Ali Muhammad wherein brother of the complainant used to help said Muhammad Iqbal but no evidence in support thereof was produced before the learned trial court. Even no proof with regard to the motive was brought on record during investigation and it was admitted by the Investigating Officer namely Muhammad Akram, S.I. (PW.11) in his cross-examination that the complainant did not produce any evidence regarding motive part of occurrence before him during the course of investigation except PWs. Therefore, we are of the view that the prosecution has not been able to prove the motive and it was rightly disbelieved by the learned trial court.
11. So far as the recovery of rifle 7MM (P.6) alongwith five live bullets (P.7/1-5) allegedly at the instance of the appellant, which was taken into possession vide recovery memo (Ex.PF) is concerned, the same is not helpful for the prosecution as no crime empty was taken into possession from the spot and even the report of Forensic Science Laboratory (Ex.PQ) is simply to the effect that the rifle was in working order.
12. Now we take up the plea of the appellant disclosed by him in his statement recorded under Section 342 of Cr.P.C. Mentioned in para 3 above. Though the appellant produced some documents in his defence but he did not produce any witness to prove the same. Even the appellant did not make any statement on oath as required under Section 340(2), Cr.P.C. It was also stated by Muhammad Akram, S.I./I.O. (PW.11) during his cross-examination that the version of the accused party during the whole investigation was that Shahid Imran s/o Muhammad Yaqoob (appellant) did not cause firing upon Muhammad Nawaz (deceased), but volunteered that this fact was not found correct in his investigation. Therefore, we are of the view that the appellant has not been able to substantiate his plea which even otherwise is exculpatory in nature.
13. As far as the acquittal of co-accused of the appellant namely Nasir Ahmad, Riaz Ahmad, Shahid Ahmad, Qaiser Abbas, Fiayaz Ahmad and Irshad Ahmad is concerned, no active role was assigned to them as Nasir Ahmad was accused of raising lalkara and he (Nasir Ahmad) as well as other co- accused made firing whereas the only firearm injury on the head of Muhammad Nawaz (deceased) was attributed exclusively to the appellant, who was found fully involved during the course of investigation. Even otherwise, the principle of falsus in uno falsus in ominibus is not followed by the courts of law in stricto senso in our country rather the principle of sifting the grains from the chaff is prevailing in our criminal justice system. So the acquittal of co-accused of the appellant in this case could not extend any favour or help to him.
14. There is sufficient incriminating evidence against the appellant in the form of straightforward and confidence inspiring ocular account furnished by Sarfraz Ahmad, complainant (PW.7) and Khizar Hayat (PW.8), fully supported by the medical evidence furnished by Dr. Asghar Ali Hanjara (PW.2), even if the evidence of recovery of rifle 7MM (P.6) at the instance of the appellant and motive are excluded from consideration to maintain conviction of the appellant under Section 302(b) PPC, which is accordingly maintained. However, we have noted that it was not a case of capital punishment for the following reasons:-
(a) A specific motive was set up by the prosecution which has been disbelieved by us for the reasons mentioned in para 10 above.
(b) It is a case of single fire shot and there is no allegation that the appellant repeated the fire.
(c) The recovery of rifle (P.6) alongwith five live bullets (P.7/1-5) allegedly at the instance of the appellant is inconsequential for the reasons detailed in para 11 above.
15. Moreover, by now it is well recognized principle of law that the accused is entitled for the benefit of any doubt as an extenuating circumstance, while deciding question of sentence. We, here, respectfully refer to an observation of the Hon'ble Supreme Court of Pakistan in the case of "Mir Muhammad alias Miro versus The State" (2009 SCM R 1188) wherein at page 1191, the Hon'ble Supreme Court of Pakistan has emphasized as under:- "9. It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
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.
21. 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."
16. In this backdrop of the situation, while maintaining the conviction under Section 302(b) PPC, we alter the sentence of Shahid Imran (appellant) from punishment of death to imprisonment for life.
The amount of compensation and the sentence of imprisonment in default thereof as ordered by the learned trial court are maintained. The appellant is also extended the benefit of Section 382-B, Code of Criminal Procedure. This appeal stands dismissed with the above modification in the quantum of sentence.
17. Murder Reference No.655 of 2010 is answered in the NEGATIVE and the sentence of death awarded to Shahid Imran (convict) is NOT CONFIRMED.