' Abdul Sarni Khan, J.--Through this appeal under Section 410, Cr.P.C. Sibtain appellant has called in question the judgment dated 24.12.2009 handed down by the learned Additional Sessions Judge, Shorkot, District Jhang, through which the appellant was convicted under Section 302(b), PPC for Qatl-e-Amd of Muhammad Riaz deceased and he was sentenced to death. He was also ordered to pay compensation of Rs, 200,000/- (Rupees two hundred thousand only) to the legal heirs of the deceased under Section 544-A, Cr.P.C. To be recovered as arrears of land revenue. In case of non- payment or non-realization thereof he shall further undergo simple imprisonment for six months.
The appellant has filed the instant appeal against his conviction and sentence whereas the learned trial Court has sent a Reference under Section 374, Cr.P.C. Which has been numbered as Murder Reference No, 37 of 2010 for confirmation or otherwise of the death sentence passed against the appellant. The complainant has also filed Criminal Petition for Special Leave to Appeal No, 47 of 2010 against the acquittal of co-accused of the Appellant/Respondent No,
2. We are inclined to decide all these matters together through this single judgment.
2. Initially the matter was reported to the police by Muhammad Ramzan complainant through his statement on the basis of which FIR No, 83/08, dated 2.5.2008 was registered at Police Station Shorkot Cantt., District Jhang, in respect of offence under Sections 302/34, PPC but being dissatisfied with the investigation of this case because the Investigating Officer had declared co- accused Sajid innocent, the complainant opted to institute private complaint in this case.
According to the contents of private complainant on the fateful day i.e, 2.5.2008 at the time of Juma prayer, the complainant and his brother Muhammad Riaz were coining out from Jamia Masjid Ghosia of Chak No, 20 Ghakha after offering Juma prayer. Sibtain and Sajid armed with pistol while raising lalkaras came there that they would teach a lesson to Muhammad Riaz for giving spy information. Sibtain made repeated pistol fires at Muhammad Riaz which landed on his abdomen at right side, right arm, left thigh and two fires on right leg as a result of which Muhammad Riaz smeared in blood fell down on the ground. Sajid while pointing pistol at the complainant and other people kept on raising lalkaras that if anybody came near he would also meet the same fate as that of Muhammad Riaz. The complainant beseeched the accused persons to pardon his brother Muhammad Riaz in the name of Allah Almighty and Holy Prophet (P.B.U.H.) but in vain. The occurrence was witnessed by other Namazi in addition to Ghulam Shabbir and Muhammad Ayyub. The complainant took his brother Muhammad Riaz in injured condition to Civil Hospital Shorkot but he succumbed to the injuries. The motive behind the occurrence as narrated - by the complainant in the FIR was that Sibtain was a criminal person who had suspicion that his brother Muhammad Riaz used to provide spy information about him to the police who had raided the house of Sibtain on several times to arrest him and due to that grudge both the accused persons in furtherance of their common intention had committed the occurrence. During the investigation the Investigating Officer joined hands with the accused party due to political influence and declared Sajid co-accused innocent. He also did not record the statements of necessary witnesses and also did not conduct the investigation in accordance with law. Hence the instituted the instant private complaint against the appellant and co-accused.
3. The investigation in this case was conducted by Tariq Mahmood SI/IO (CW-6). After receiving file of the case he proceeded to THQ Hospital Shorkot on 2.5.2008, inspected the dead body prepared injury statement Exh.CW-2/C-1, prepared inquest report Exh.CW-2/D, sent the dead body to mortuary for post-mortem examination report, visited the place of occurrence, secured blood stained earth from the place of occurrence vide recovery memo. Exh. PB, collected three empty cartridges of pistol .30 bore C_5 to C-7 and took the same into possession vide recovery memo.
Exh.CW-6/A, he got prepared scaled site-plan from the Draftsman Ex.CW-7/A and CW-7/B and recorded the statements of the PWs under Section 161, Cr.P.C. He arrested the appellant on 21.5.2008, recovered pistol .30 bore (PI) on the pointing out of the appellant on 28.5.2008 which was taken into possession vide recovery memo. Ex. PE and after finding the appellant guilty submitted report under Section 173, Cr.P.C. Charge was framed against the appellant in the private complaint on 13.5.2009.
4. To substantiate its version at the trial, the prosecution produced as many as three prosecution witnesses before the learned trial Court and the learned trial Court recorded statements of seven Court witnesses. The ocular account was furnished by Muhammad Raees complainant (PW-1) and Ghulam Shabbir (PW-2).
5. Dr. Muhammad Hashir, Medical Officer, THQ Hospital, Shorkot, District Jhang (CW-3) had conducted post-mortem examination on the dead body of Muhammad Riaz deceased on 2.5.2008 at about 5.30 p.m. And found following injuries on the person of deceased: -- "1. A fire-arm entrance wound 0.5 cm x 0.5 cm x going into abdominal cavity on right side of front of abdomen 11 cm from umbilicus. No blackening was present around the wound. Margin of wound were inverted.
1-A. A fire-arm exit wound 1 cm x 1 cm on the back of left side of abdomen 3 cm above ilisecrest 7 cm from midline. Margins were everted.
2. A fire-arm wound of entrance 0.5 cm x 0.5 cm through and through on front of right forearm 6.5 cm below right elbow. There was no blackening around the wound. Margins were inverted.
2-A. A fire-arm exit wound 1 cm x 1.2 cm on the back of right forearm. Wound margins were everted.
3. A fire-arm entrance would 1.5 cm x 1.5 cm through and through on inner side of left thigh lower part 11 cm above left knee. Margins were inverted and there was no blackening around the wounds.
3-A. A fire-arm exit wound 1.8 cm x 1.5 cm on back of left thigh wound was bleeding having its margins everted.
4. A fire-arm wound 1.5 cm 1 cm into through and through (skin) on front and outer pat of right leg.
Margins inverted and there was no blackening.
4-A. A fire-arm exist wound 2 cm x 1.5 cm on front of right leg 4 cm below Injury No,
4. Wound margins were everted.
5. A fire-arm entrance wound 1.8 cm x 1.2 cm into underlying bone fractured on front of right leg at middle. There was blackening and margins- were inverted.
' Note: One metallic piece recovered from under Injury No, 5 was sealed and was handed-over to the police."
6. According to the opinion of the doctor, death in this case occurred due to Injury Nos. 1 and 3 leading to hemorrhage and shock which was sufficient to cause death in ordinary course of nature.
Rest of the injuries took part in hemorrhage. All the injuries were ante-mortem and caused by fire- arm weapon. The probable time that elapsed between injuries and death was within one hour and between death and post-mortem was two hours. The post-mortem report is Exh.CW-2/A.
7. The appellant in his statement recorded under Section 342, Cr.P.C. Professed his innocence and pleaded false implication in the case. In reply to a question, "why this case against you and why the PWs deposed against you", he stated as under: "Riaz deceased had illicit relations with my sister. I had many times requested the deceased and his relatives to respect the honour of our family but all in vain. Five days prior to the occurrence an altercation had taken place with me and Riaz deceased. Some person with muffled faces committed the occurrence. Prosecution tried their best to trace out the actual culprits when failed roped me and my brother in this false case due to above said suspicion. All the PWs are related inter se and have deposed against me due to suspicion."
' In response to question "have you anything else to say", he stated as under: "I am innocent. In fact deceased and his relatives Zafar son of Ramzan had religious disputes with the Sunni Muslims because one Hafiz Dost Muhammad complainant of FIR No, 130 Exh.DA lodged an FIR against Zafar son of Ramzan a close relative of the deceased because he was Qadiani and the relationship and faith of the complainant and the PWs is very much clear in their deposition during cross-examination that complainant was not ready to say that Qadianis are not Muslims. In fact Riaz deceased tried to enter into the Sunni Mosque and he was done to death by some Sunni Muslim."
8. The appellant opted to produce copy of FIR No, 130/98, Police Station Cantt. Exh. DA, certified copy of Mutation No, 1125 dated 2.5.200 Exh. DB and copy of Roznamcha Waqiati dated 2.5.2008 as Exh.
DC. However, he did not opt to record his statement under Section 340(2), Cr. P.C. In disproof of allegations levelled against him by the prosecution.
9. At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court acquitted co-accused of the appellant namely Sajid by extending benefit of doubt in his favour and proceeded to convict mid sentence the appellant as mentioned in Paragraph No, 1 of this judgment
10. Learned counsel for the appellant submits that he would not challenge the conviction and sentence of the appellant, rather he would pray for the conversation of sentence of the appellant from death into life imprisonment due to mitigating circumstances involved in the case. However he has added that motive in this case has been disbelieved by the learned trial Court and recoveries have also not been proved against the appellant.
11. On the other hand learned Deputy Prosecutor-General has submitted that the quantum of sentence to be awarded to the appellant is the sole discretion of the Court and he would not like to advance his arguments in this behalf However. Learned counsel for the complainant contends that the matter was reported on the police with sufficient promptitude. The appellant is named in the FIR as well as in the private complaint with specific role attributed to therein and specification of weapons held by the appellant has duly been explained not in the FIR but in the private complaint as well. The role attributed to the appellant is borne out from the post-mortem examination report of the deceased Muhammad Riaz. The appellant acted in a desperate manner at the spot and committed the murder of an innocent person in a brutal manner by making repeated tire-shots.
The defence plea taken by the appellant is vague and not confidence-inspiring rather the same is pack of lies. All the prosecution witnesses are consistent on each and every material point. There are some minor contradictions which cropped up due to passage of time and are not fatal to the prosecution's case. Relation inter se is no ground to disbelieve the confidence-inspiring evidence of the PWs. The motive in this case is admitted fact. The possibility of false implication and connection of story is ruled out as the eye-witnesses were present at the place of occurrence and they had gained confidence of the learned trial Court in t his respect by adducing cogent and trustworthy evidence. The medical evidence is in line with the ocular account. The three crime-empties of pistol .30 bore were collected from the place of occurrence by the Investigating Officer and report of Forensic Science Laboratory is in positive. The prosecution has successfully proved its case against the appellant, and the learned trial Court has rightly awarded sentence of death to the appellant.
12. We have heard the learned counsel for the parties at length, have given our anxious consideration to their arguments and have also minutely scanned the record with great care and caution.
13. It has been observed by us that the occurrence took place on 2.5.2008 after Juma prayer whereas the same was reported to the police through written application of the complainant at 4.15 p.m. And the FIR was chalked out on the same day at 4.45 p.m. Whereas the distance between the Police Station and place of occurrence is 20 kilometers. Even the post-mortem examination on the dead-body of the deceased was conducted at 5.30 p.m. On 2.5.2008 within a span of 45 minutes. All these facts show that the matter has been reported in this case with sufficient promptitude and there is no unconscionable or of the FIR. Thus. We have not seen any element of consultations or deliberations over the matter on the part of the prosecution.
14. The ocular account in this case has been furnished by Muhammad Raees complainant (PW-1) and Muhammad Shabbir (PW2). It was a brought daylight occurrence wherein the complainant had duly pointed accusing fingers towards Sibtain appellant as the culprit who had perpetrattd the offence and he had assigned him specific role of firing on the person of deceased Muhammad Riaz which he sustained on different part of his body, i.e, abdomen, right arm, left thigh and right leg and the same resulted into his death. The appellant has acted at the spot in a desperate manner and made repeated fatal fire-shot at him immediately after Juma prayer. During his statement before the learned trial Court Muhammad Raees complainant (PW-I.) had sufficiently explained the locate of injuries attributed to the appellant, the weapon used by him during the incident and the manner and mode of taking place the occurrence. Being the brother of Muhammad Riaz deceased and resident of the same vicinity, especially at the time of Juma prayer the presence of the complainant at the spot is natural, thus, he cannot be termed as chance witness. He had explained each and every segment of the occurrence at the spot in most scrupulous way in so many words.
His deposition before the learned trial Court had also found support from the statement of Muhammad Shabbir (PW2) whose presence at the spot is also above-board. Although both the above said eye-witnesses had to endure a lengthy cross-examination by the defence wherein the learned counsel for the defence had put multiple questions but they had sufficiently proved their presence at the place of occurrence at relevant time and witnessing the occurrence vis-a-vis the culpability of Sibtain appellant in this case by giving rational answers. Being residents of the same locality the parties to this case were known to each other so the possibility of mistaken identity of the appellant at the spot is also out of question. Mere relationship of the complainant and the other eyewitnesses with the deceased is not sufficient to disbelieve their evidence because law is quite settled that a witness having relationship with the deceased can be believed if the intrinsic worth of his testimony inspires confidence of the Court and the same leads to an inference that he was present at the scene of the crime a relevant time and he has seen the occurrence.
15. Now Adverrting to the plea taken by the appellant in his evidence before-the learned trial Court under Section 342, Cr.P.C. Wherein while answering a questions that why this case against you, why the prosecution witnesses depose against you and have you anything else to say the appellant had specifically taken a stance that the deceased was having illicit-liaison with his sister. In this context we have observed that that was a bald allegation levelled by the appellant upon the deceased which he remained unable to prove through any evidence before the learned trial Court because it was none else but the appellant who had to prove his allegation/stance taken by him in his statement under Section 342, Cr.P.C.
16. The medical evidence had been furnished in this case by Dr. Muhammad Hashir (PW3) who had conducted Post-Mortem Examination of Muhammad Riaz deceased and while appearing before the learned trial Court he had sufficiently explained the locale as well as nature of injuries, the weapon used by Sibtain appellant for committing the murder of the deceased and the time between injuries and death of the deceased in addition to the time between death and the Post- Mortem Examination. Thus, the medical evidence provides full support to the prosecution version/ocular account.
17. So far as the recovery of pistol .30 bore is concerned admittedly the appellant was arrested in this case on 21.5.2008 whereas the recovery was shown to have been effected from him on 28.5.2008. On his first visit at the place of occurrence the Investigating Officer has collected crime- empties on 2.5.2008 but the same were sent by him. To the Office of Forensic Science Laboratory on 31.5.2008, i.e, after ten days of the arrest of appellant. In his statement the Investigating Officer could not furnish any valid reason for keeping the crime-empties in Maal Khana for twenty-nine days. We may observe here that the fact of withholding crime-empties in Maal Khana for twenty- nine days and not sending the same to the Office of Forensic Science Laboratory gives a long way to understand that firstly after recovery of pistol .30 bore from the appellant the crime-empties were manufactured and thereafter the same were sent to the Office of Science Laboratory and thereafter the pistol was sent to Forensic Science Laboratory just to secure positive report just to strengthen the prosecution's case. In this state of affair were have observed that recovery is planted upon the appellant and the same is of no consequence. The same could not provide up to make help as required in a criminal case so as to use against the appellant as corroborative piece of evidence. The recovery in this case is, therefore, disbelieved by us.
18. The prosecution has alleged a specific motive that the deceased used to give information to the police regarding illegal activities of the appellant. Admittedly during trial the complainant failed to bring on record any criminal case in which the appellant is involved or even he remained unable to point out any illegal activity of the appellant. Both the eye-witnesses admitted that they have not given detail of any case against the appellant to police about the illegal activities of the appellant.
No independent witness has been examined before the learned Trial Court to substantiate the motive set up by the prosecution in the FIR. It may not be out of place to point out here that before closing the evidence the complainant has tendered copies of FIRs relating to the years 2004 and 2006 against the appellant to establish his criminal history or to prove motive part of the prosecution story. In this context we may observe here that the complainant tactfully under legal advice has tendered copies of FIRs registered against the appellant so as to deprive the defence to cross-examine him in this regard. The prosecution has not produced the scribe of FIRs before the learned trial Court so the FIRs were not tendered in evidence by adopting the procedure laid down in Qanun-eShahadat Order, 1984. Thus, in absence of any independent corroboration to prove the motive part the same had rightly been disbelieved by the learned trial Court and we too have no occasion to believe the same. Thus, motive set up by the prosecution in the FIR is not proved.
19. For what has been discussed above the prosecution has proved the case against Sibtain appellant beyond any reasonable doubt through confidence-inspiring evidence of ocular account which finds support from the medical evidence. However, at the time, we have noticed some peculiar features of this case and we are of the view that this case carries some exceptional/mitigating circumstances in favour of the appellant which are as under:--
(a) The motive set up by the prosecution has been disbelieved by the learned trial Court in the first instance and we have also come to a definite conclusion that the prosecution has failed to prove motive against the appellant. Law is quite settled that when the prosecution set up a motive in the FIR it was none-else but the prosecution who has to prove the same with cogent and trustworthy evidence
20. After attending all the circumstances of this case we are of the 'definite view that sentence of death awarded to Sibtain appellant is not justified in this case and the capital sentence of death passed against him by the learned trial Court appeared to us to be harsh enough to be sustained as motive set up by the prosecution has not aproved in this case rather the same remains shrouded in mystery. 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 circumstances. Reliance is placed on the cases of Muhammad Yaseen v. The State, (2011 SCM R 905) Iftikhar Mehmood and another v.
Qaiser Iftikhar and others, (2011 SCM R 1165) and Hasil Khan v. The State, (2012 SCM R 1936) 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." '
'We would also like to observe here 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 forfeited our view qua the quantum of sentence by the case reported as Sharafat Ali Khan v. 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-c amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind whereas 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 SCAM 502)."
This fact along with other circumstances is considered by us as mitigating circumstance in favour of appellant. So taking the same into consideration in favour of appellant Sibtain we feel that the capital punishment of death will not serve the interests of justice in this case. The above-narrated peculiar features of this case convince us that life imprisonment would be absolutely in apt with the circumstances of this case. Thus, we convert the death sentence of Sibtain appellant into life imprisonment under Section 302(b), PPC.
21. However, conviction to the extent of payment of compensation by the appellant to the legal heirs of Habib Sultan and Muhammad Hameed deceased persons amounting to Rs, 2,00,000/- or in default of payment thereof to further undergo simple imprisonment for six months is maintained and upheld. The benefit of Section 382-B, Cr.P C. Is also extended in favour of the appellant.
Criminal Appeal No, 2225 of 2009 filed by Sibtain appellant is, therefore, dismissed with the above- modification made in the sentence of the appellant.
22. Now adverting to the case of Sajid Respondent No 2. Admittedly role of raising joint lalkara is attributed to him and he had not committed any overt act at the place of occurrence. Although he had been shown in the FIR as holding pistol in his hand yet admittedly he had not used the same during the occurrence and he had not caused any injury to the deceased. He is elder brother of the appellant so possibility cannot be ruled out of consideration that the complainant has spread the net wide and entangled him falsely in this case along with the appellant. He had also been found innocent by the Investigating Officer during the investigation of this case. Although the opinion of the police is not binding upon the Courts of law yet the fact remains that the same can be believed if the same were based upon sound reasons. Moreover it has become a practice in our society that the people do involve innocent person in heinous case to grind their own axe. Thus, we have come to a definite conclusion that the case of the prosecution to the extent of Muhammad Sajjad Respondent No 1 is not proved beyond any shadow of reasonable doubt. It is settled law that not many circumstances creating doubt in the prosecution case is required rather a single circumstance creating doubt in the prosecution case is enough to give benefit of the same to an accused. He has already been acquitted by the learned trial Court and double presumption of truth is attached to his innocence. Petition for Special Leave to Appeal No, 47 of 2010 filed by Muhammad Raees complainant is, therefore, dismissed.
23. Murder Reference No, 37 of 2010 is answered in the negative and the death sentence of Sibtain appellant is not confirmed.