SADAQAT ALI KHAN, J.---This judgment shall dispose of Criminal Appeal No, 169 of 2010 filed by Ghulam Ali and Imam Bakhsh present appellants respectively and Murder Reference No, 16 of 2010, arising out of the judgment dated 15.4.2010 passed by learned Additional Sessions Judge, Bahawalnagar according to which both the present appellants were convicted and sentenced as under:---
(1) Ghulam Ali was convicted under section 302(b), PPC and sentenced to death as `Tazie for committing Qatl-i-Amd of Allah Ditta deceased along with compensation Rs, 1,00,000/- payable to the legal heirs of the deceased under section 544-A, Cr.P.C., if recovered and in default thereof six months' S.I. He was also convicted under section 324/34, PPC and sentenced to 10 years' R.I. For sharing the common intention of his co-accused Imam Bakhsh for making attempt to commit Qatl-eAmd of Allah Ditta deceased along with fine of Rs, 20,000/- and in default thereof three months. S.I.
(2) Imam Bakhsh was convicted under section 302(b), PPC and sentenced to life as `Tazie for committing Qatl-e-Amd of Allah Ditta deceased alongwith compensation Rs, 50,000/- to the legal heirs of the deceased Allah Ditta under section 544-A, Cr.P.C. And in default thereof six months' S.I.
He was also convicted under section 324, PPC and sentenced to 10 years' R.I alongwith fine Rs, 20,000/- and in default thereof six months' S.I. He was also convicted under section 337-F(iii), PPC and sentenced to undergo two years' R.I. Alongwith fine Rs, 20,000 as 'Daman' to the injured Sher Ali and in default thereof six months' S. I. Whereas co-accused Ghulam Fareed, Muhammad Azhar, Muhammad Amin, Pervaiz, Munir, Muhammad Ramzan and Muhammad Saleem were acquitted by the learned Trial Court in case FIR No, 314, dated 14.10.3007 under sections 302, 324, 337-F(iii), 148/149, PPC Police Station Shahar Fareed District Bahawalnagar. All the sentences' awarded to both the appellants were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to both the appellants.
2. Brief facts of the case as given by the complainant Ghulam Farid (PW-1) in his statement upon which FIR (Ex.PC) was registered are that about 11/2 years prior to his statement before the Trial Court dated 22.5.2009, he alongwith his son Allah Ditta (deceased) and Ali Sher PW-9 had gone to see their relative Muhammad Amir (PW-5) at Basti Kara Tehsil Chishtian District Bahawalnagar. On the same day, at about 3:30 p.m. All of a sudden Ghulam Ali present appellant armed with rifle, Ghulam Farid (acquitted accused) armed with gun 12 bore, Ramzan (acquitted accused) armed with pistol, Amin (acquitted accused) armed with pistol and Azhar (acquitted accused) armed with Sota emerged there, raised lalkara to teach them a lesson and encircled them. Ghulam Farid and Azhar (acquitted accused), instigated Ghulam Ali present appellant to fire at Allah Ditta (deceased) his son to teach him a lesson of previous litigation and enmity. Ghulam Ali present appellant made a fire shot which hit Allah Ditta (deceased) at his left flank and bullet went through and through. Allah Ditta (deceased) fell on the ground. Thereafter Imam Bakhsh present appellant made a straight fire shot which hit at the left upper arm of Ali Sher PW-9 who also fell on the ground while the remaining accused persons carrying the firearms also made firing with the respective weapons. On their hue and cry, PWs namely Riaz Ahmed and Muhammad Kaleem attracted to the scene of occurrence whereupon the present, appellants alongwith their co- accused decamped from the venue of the occurrence. They shifted Allah Ditta (deceased) alongwith All Sher injured (PW-9) to RHC Shaher Farid, where Allah Ditta (deceased) succumbed to the injuries as they reached the hospital. He stated that the occurrence was committed by the present accused alongwith their co-accused at the abetment and instigation of Muhammad Saleem (acquitted accurd) and Haji Allah Wayas'a and Allah Jawaya (since declared innocent during the investigation). Motive behind the occurrence as stated by the complainant PW-8 in his statement befofe the Court was that there was enmity and litigation between Ali Sher PW-9 and the accused persons, whereas he and his son Allah Ditta (deceased) were related to Ali Sher (PW- 9).
3. During the investigation, Allah Wayasa and Allah Jawaya were found innocent while present appellants alongwith their co-accused were found guilty and were challaned to Court to face the trial.
4. After completion of the investigation, Challan was submitted in the Court. Learned Trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 18.3.2009 against the accused/present appellants and their co-accsed. However, all the accused persons pleaded not guilty and claimed trial and the prosecution evidence was summoned.
5. Prosecution produced Muhammad Azam PW-1, Manzoor Ahmad PW-2, Muhammad Firdous PW- 3, Niaz Ahmad PW-4, Muhammad Amir PW-5; Jan Muhammad PW6, Masood Ahmad PW-7, Ghulam Farid PW-8, Ali Sher PW9, Khalil Ahmad Tracer PW-10, Falak Sher PW-11, Riaz Ahmad PW-14 and tendered in evidence recovery memo. Of blood-stained clothes Ex.PA, recovery memo. Of rifle Ex.PB, statement of Ghulam Farid Ex.PC, injury plan Ex.PE, postmortem report Ex.PF, inquest report Ex.PF, recovery memo. Of blood-stained earth Ex.PH, recovery memo. Of rifle Ex.PI to Ex.PK, recovery memo.
Of Balla Ex. PL, site-plan Ex.PD report of Chemical Examiner Ex.PM, report of Serologist Ex.PN and closed the prosecution evidence.
6. The medical evidence was furnished by Dr. Shakeel Mirza Riffat, Medical Officer, Rural Health Centre, Shaher Farid (PW-12) whereas, Maqbool Hussain, Sub-Inspector (PW-13) is the Investigating Officer of this case.
7. On the other hand, statements of accused were recorded under section 342, Cr.P.C. Who refuted the allegations so levelled against them and they have not opted to appear under section 340(2), CrPC and produced in evidence statement of Muhammad Amir, Ex.DA, statement of Jan Muhammad Ex.DB, statement of Ali Sher and Manzoor Ahmed Ex.DC and attested copy of School Leaving Certificate of Government Primary School Village Kaurra Bhotna of Tehsil Chistian District, Bahawalnagar as Ex. DD and closed their defence evidence.
8. After conclusion of the trial, learned Trial Court convicted the present appellants with above- stated sentences whereas their co-accused Ghulam Fareed, Muhammad Azhar, Muhammad Amin, Pervaiz, Munir, Muhammad Ramzan and Muhammad Saleem were acquitted by the learned Trial Court.
9. Learned counsel for the appellant contended that:---
(i) the judgment of the Trial Court dated 15.4.2010 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 appellants as there are many major discrepancies in the statements of the PWs further there is conflict between ocular evidence and medical evidence and the learned Trial Court has convicted the appellants on the basis of surmises and conjectures;
(iii) it is further submitted that while keeping in view the statements of the prosecution witnesses, the enmity is proved between Munir (acquitted accused) and Ghulam Farid complainant (PW-8) and no enmity or motive has been proved against the present appellants.
(iv) it is further contended that as per statements of the PWs recorded before the Trial Court the parties earlier quarreled with each other and in the present FIR, except Munir (acquitted accused) present appellants have not been involved and the prosecution has failed to prove motive against the present appellants;
(v) it is contended that Ghulam Fareed PW-8 complainant/eye-witness of the alleged occurrence is real father of Allah Ditta (deceased) and was not received any injury;
(vi) it is further submitted that from the facts and circumstances occurrence took place outside of the of PW-5 Ameer and not taken place in the as no blood-stained earth was taken inside the 'Havali';
(vii) it is further submitted that PW-5 Arneer appeared before the Trial Court and did not utter a single word regarding the occurrence allegedly took place in his house and no person from inmates of the house ot Ameer PW-5 was produced as a witness of the occurrence by the prdsecution; (viii)it is further submitted that there was no alleged firearm injury on the person of Ali Sher injured in the medical report;
(ix) lastly submitted that appeal may be accepted and the judgment of the Trial Court dated 15.4.2010 may kindly be set aside and appellants may be acquitted.
10. On the other hand, learned DPG assisted by the learned counsel for the complainant has vehemently opposed the appeal and requested for dismissal of the same and submitted that:---
(i) prosecution has proved its case beyond any shadow of doubt against the appellants 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. According to statement Ex.PC recorded by Ghulam Fareed complainant (PW-8) occurrence took place on 14.10.2007 at about 03:30 (noon) whereas FIR was registered on the same day at about 05:40 p.m. Complainant Ghulam Fared PW-8 almost narrated the same story before the Trial Court as was recorded by him in his statement Ex.PC and stated before the Trial Court that he alongwith his son Allah Ditta (deceased) and Ali Sher (PW-9) had gone to see their relative Muhammad Amir (PW-5) located at Basti Kora Tehsil Chistian District Bahawalnagar. On the same day, at about ,3:30 p.m. All of a sudden `Ghulam Ali present appellant armed with rifle, Ghulam Farid (acquitted accused) armed with gun 12 bore, Ramzan (acquitted accused) armed with pistol, Amin (acquitted accused) armed with pistol and Azhar (acquitted accused) armed with Sota emerged there, raised lalkara to teach them a lesson and encircled them. Ghulam Farid and Azhar (acquitted accused) instigated Ghulam Ali "present appellant to fire at Allah Ditta (deceased) his son to teach him a lesson of previous litigation and enmity. Ghulam Ali present appellant made a fire shot which hit Allah Ditta (deceased) at his left flank and bullet went through and through. Allah Ditta (deceased) fell on the ground. Thereafter Imam Bakhsh present appellant made a straight fire shot which hit at the left upper arm of Ali Sher PW-9 who also fell on the ground while the remaining accused persons carrying the fire-arms also made firing with their respective weapons. On their hue and cry, PWs namely Riaz Ahmed and Muhammad Kaleem attracted to the scene of occurrence whereupon the present appellants alongwith their co-accused decamped from the place of the occurrence. The occurrence was committed by the -accused persons at the abetment and instigation of Muhammad Saleem, Haji Allah Wasaya and Allah Jawaya accused.
Motive behind the occurrence was that there was enmity and litigation between Ali Sher PW-9 and accused persons and his son Allah Ditta (deceased) was relative of Ali Sher PW-9. Ali Sher PW9 narrated before the Trial Court almost same story in his statement as stated by PW-8 Ghulam Fareed complainant.
13. First of all we take the case of Imam Bakhsh appellant. PW-8 Ghulam Fareed stated specifically in his statement before the Trial Court that Imam Bakhsh present appellant made a straight fire which hit at the left upper arm of Ali Sher PW-9 who also fell down on the ground. PW-9 Ali Sher injured stated that Imam Bakhsh appellant made a straight fire which hit on his left arm and he fell down after covering paces. Rest of the accused persons carrying the fire-arm weapons also made firing. PW-12 Doctor Shakeel Mirza Riffat, M.O. Rural Health Centre, Shaher Farid stated before the Trial Court that on 14.10.2007 at about 05:30 p.m. During medical examination of Ali Sher PW-9 who was brought to him in injured condition and he observed following injuries:- "A lacerated wound of 2 cm x 0.5 cm on dorsum and middle of 1/3rd of left forearm. Wound was muscle deep. Advised X-Ray of left forearm. Injury was declared as Jurh Ghayr Jaifah Mutalihimah and was caused with blunt weapon within the duration of 12 hours: Ex. PE is correct carbon copy of the MLC which is in my hand and bears my signature."
14. In view of the statement of Doctor Shakeel Mirza Riffat, Medical Officer (PW-12) Ali Sher injured PW-9 received no fire-arm injury. Prosecution neither made any request for re-examination of Doctor Shakeel Mirza Riffat, Medical Officer (PW- 121 on this fact nor during the investigation MLC Ex.PE was challenged by the prosecution and likewise nowhere prosecution challenged the opinion of PW-12 Doctor Shakeel Mirza Riffat that the injury on the person of Ali Sher PW-9 was not caused with blunt weapon rather was caused with fire-arm weapon through Medical Board. Admittedly, no crime empty was recovered from the place of occurrence so alleged recovery of Rifle 8-MM (P-7) on 11.11.2007 on the pointation of Imam Bakhsh present appellant from his residential room which was taken into possession through recovery memo. Bx.PI is inconsequential.
15. PW-8 Ghulam Fareed and PW-9 Ali Sher injured specifically stated that Imam Bakhsh present appellant made a fire with his Rifle which hit Ali Sher injured on his left arm whereas PW-12 Doctor Shakeel Mirza Riffat stated that at the time of medical examination of Ali Sher injured, he observed lacerated wound on his left forearm which was caused with blunt weapon as such there is conflict between medical and the ocular evidence on this point and admittedly there is no firearm injury on the person of Ali Sher injured PW-9 and PW-12 Doctor Shakeel Mirza Riffat in view of the dimension and depth of the wound on the person of Ali Sher injured PW-9 rightly observed that this injury was caused with blunt weapon and in such a situation when there is a conflict between medical and ocular evidence, preference is to be given to medical evidence then to ocular 'evidence. Ghulam Fareed, Muhammad Azhar, Ameen, Pervaiz, Munir Ahmed, Ramzan, Muhammad Saleem co- accused of the appellant Imam Bakhsh were also attributed firing by PW-8 Ghulam Fareed complainant and PW-9 Ali Sher injured but those were acquitted by the Trial Court and no appeal has been filed by the prosecution and excluding the injury on the person of Ali Sher PW-9 due to.
Conflict between medical and ocular evidence, as stated above, the case of Imam Bakhsh also is at par of those above-stated accused and thus Imam Bakhsh is also entitled for the same relief.
16. While answering to question "Why this case against you and why the PWs deposed against you?"
' The appellant Imam Bakhsh replied as under:- ' The PWs are closely related to the deceased and are highly inimical towards me, therefore, they have falsely involved me in this case and got me challaned in connivance with the local police/Investigating Officer of this case".
17. The above discussion reveals that the case of the prosecution to the extent of Imam Bakhsh appellant is not free from doubt. Hence, Criminal Appeal No, 169 of 2010 to the extent of Imam Bakhsh present appellant is accepted. The conviction and sentences recorded against him by the Trial Court through the impugned judgment is hereby set aside and he is ordered to be acquitted in case FIR No, 314, dated 14.10.2007 under sections 302, 324, 337-F(iii), 148/149, PPC police siation Shahar Fareed District Bahawalnagar. He is present on bail. His surety is discharged.
18. So far as the case of Ghulam Ali appellant is concerned, he is nominated in the promptly lodged FIR with specific attribution of fatal fire-arm injury to Allah Ditta (deceased) duly verified in his post- mortem report furnishing full corroboration to the ocular account of PW-8 Ghulam Fareed real father of the deceased Allah Ditta and PW-9 Ali Sher injured. Both are natural witnesses who along with the deceased went in the house of Muhammad Ameer PW-5 on the eve of Tid-ul-Fitr' being relative of Muhammad Ameer PW-5 and have furnished reasonable and probable cause of their presence at the time and place of occurrence. Their testimony is corroborated by medical evidence. Both the eye-witnesses were subjected to lengthy cross-examination but their credibility could not be shaken as they not only corroborated each other but also remained consistent on all material particulars of the prosecution case.
19. Mere relationship of the witnesses with the deceased would not make a witness unworthy of reliance if his testimony is corroborated by the independent evidence of circumstances appearing on record. Reliance is placed on case titled Hasil Khan v. The State" (NLR 2013 Criminal 21) and relevant para 8 is reproduced as under:- "the ocular account in this case was furnished mainly by PW-1 Dil Murad (complainant) and Zareef Khan PW-2. The former is a brother whereas the latter is nephew of the deceased. Though both are relatives but mere relationship would not make a witness unworthy of reliance if his testimony is corroborated by any independent evidence or circumstance appearing on record."
20. The arguments of the learned counsel for the appellant that no one from the inmates of the house where the alleged occurrence took place has been produced as a witness by the prosecution is not tenable. As people are generally reluctant to come forward to give evidence for fear of reprisal from one of the parties. Non-production of the inmates of the house as a witness would not erode the credibility of the remaining evidence if it inspires confidence.
21. Admittedly, no crime empty has been recovered from the place of occurrence and Riaz Ahmed and Muhammad Hakeem alleged recovery witnesses of recovered rifle 44 bore P-8 on the pointation of Ghulam Ali appellant were not appeared before the Trial Court to support the recovery proceedings so in view of that recovery evidence in the present case is inconsequential which cannot be used as a corroborative piece of evidence to the ocular account.
Motive
22. Motive is not attributed to Ghulam Ali appellant admittedly. However, it is not sufficient to discard the prosecution version straight forward as it is settled principle of law that weakness of motive or even its conspicuous absence might not be helpful to accused when unimpeachable ocular evidence is available.
23. From the above discussion, we have no hesitation in holding that the prosecution has succeeded to prove the charge of `Qatal-e-Amd' of Allah Ditta deceased against Ghulam Ali appellant beyond any shadow of doubt through the ocular account of unimpeachable character, supported by the medical evidence and also corroborated by the recording of the evidence with promptitude as such the conviction recorded by the learned Trial Court against Ghulam Ali appellant under section 302 (b), PPC is maintained. So far as the quantum of sentence is concerned, we have already observed that motive is not attributed to Ghulam Ali accused/appellant against Allah Ditta (deceased) and there was no reason why Allah Ditta deceased should have been victim of the motive part of the prosecution story mentioned in the FIR.
Hence, motive is not proved. Reliance is placed on case titled "Hasil Khan versus The State" (NLR 2013 Criminal 2.1). Relevant para is at page 28 which is reproduced hereunder:--- "However, coming to the question of enhancement of sentence by the learned High Court, we find that the learned High Court did not appreciate that the motive alleged in the FIR has rather weak and there was no reason why Saeed Bakhsh, deceased, should have been the victim of the said motive part of the prosecution story. Moreover, as rightly observed by the learned Trial Court the immediate motive remained shrouded in mystery and the Trial Court rightly did not award the maximum sentence of death provided under section 302(b), PPC to the appellant. The enhancement of sentence by the learned High Court, we may observe with respect, is not in accord with the law laid down by this Court in Muhammad Ash raf Khan Tareen v. The State (1996 SCMR 1747) wherein at page 1755, the Court dismissed complainant's appeal and did not enhance the sentence by holding as follows:--- ' In respect of sentence, learned counsel for the complainant/state wanted conversion of the life imprisonment into death sentence. Learned counsel cited case of Iftikhar Ahmad v. The State (PLD 1990 Supreme Court 820) where criminal petition by the complainant challenging reduction of sentence by the High Court, was dismissed by this Court on the ground that the principle of origin of offence remained shrouded in mystery. This authority does not further prayer of the complainant for awarding death penalty to the appellant. In the present case prosecution did not allege any specific motive for commission of the offence. In the circumstances, the appellant could not have been awarded the death penalty.
' Similarly in Jehanzeb v. The State (2003 SCMR 98), the Court altered the sentence of death of the convict to life imprisonment by observing that where motive alleged by the prosecution has not been satisfactorily proved, this may be considered as a mitigating circumstance qua the quantum of sentence."
Recovery is also not proved. Appellant made only one fire upon the deceased and has not repeated the same.
24. Ghulam Ali, present appellant in answer to question No, 20 produced attested copy of school leaving certificate of Government Primary School Village Kaurra Bhotna of Tehsil Chistian District Bahawalnagar as Ex.DD and further stated in answer to question No, 21 as under:--- "I am innocent. I reply upon the statement of my co-accused Munir Ahmad. Further at the time of occurrence, I was hardly of the age of 15/16 years and I had nothing to do regarding this occurrence and I had no motive whatsoever against either of the party. The complainant party due to their influence got the medical certificate from DHQ Hospital, Bahawalnagar regarding my age in their favour which is not correct'. ' and according to School leaving Certificate Ex.DD date of birth of Ghulam Ali appellant is 3.4.1992.
25. In view of that we conclude that the appellant has become able to show that mitigating circumstance does exist for commuting the death sentence awarded, to him into that of imprisonment for life, consequently, the death sentence awarded to Ghulam Ali appellant under section 302(b), PPC is controverted into that of life imprisonment with benefit of section 382-B, Cr.P.C. While amount of compensation would remain intact in the terms of the judgment of the Trial Court. Offence under section 324, PPC has not made out against the present appellant Ghulam Ali as injury on the person of Ali Sher was not caused with fire-arm weapon and was caused with blunt weapon which is not attributed to any one and in that injury Imam Bakhsh appellant was also acquitted by us in para No, 18 of this judgment, hence the same is not proved against the present appellant Ghulam Ali.
26. With above-stated modification in the impugned judgment of the Trial Court, Criminal Appeal No, 169 of 2010 filed by Ghulam Ali is disposed of. Death sentence is NOT CONFIRMED and Murder Reference No, 16 of 2010 is answered in NEGATIVE.
Death Sentence Reduced to Life Imprisonment/ Criminal .