SIKANDAR ZULQARNAIN SALEEM, J.--- Ibrar Hussain appellant was convicted for an offence under section 302(b), P.P.C. Vide judgment dated 20.03.2012 handed down by the learned Additional Sessions Judge, Chakwal and was sentenced to death for committing -qad-i-amd of Nayyar Abbas deceased with direction to pay a sum of Rs.2,00,000/- tp the heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C., or in default of payment thereof to further undergo S.I. For six months. Ibrar Hussain appellant has challenged his conviction and sentence before this Court through the instant Criminal Appeal No. 126 of 2012 which has; been heard by us along with Murder Reference No. 23 of 2012, sent by the learned trial 'Court under section 374, Cr . P. C . , seeking confirmation or otherwise of the sentence of death passed by the learned trial court against Ibrar Hussain appellant. We propose to decide both these matters together through the present consolidated judgment.
' Brief facts of the case as given by complainant Muhammad Faisal (PW-9) in his ' Fard Bayan' (Ex.
PH), recorded on 9.8.2010 at 9.30 p.m. By Muhammad Yar, S.I. (PW-11) at THQ Hospital, Talagang, on the basis thereof formal FIR (Ex.PH/1) was chalked out by Muhammad Ashraf Gondal, S.I. (PW-12), are that complainant Muhammad Faisal (PW-9) is resident of village Kot Sarang and was employed at the shop of Usman Tailor Master, Talagang. He used to return to his house daily at evening time. On 9.8.2010 at evening time, he (complainant) was returning to his house after relieving from his work and when at about 07:30 p.m. He reached in the main street of village near Government Primary Schpol, (PW-10) Mian Muhammad also came there from the other side. They heard hue and cry from the side of Bungalow Noor Badshah whereupon both of them rushed towards there, where they saw that Tehseen Ayyaz (acquitted accused) was catching hold of Nayyar Abbas (deceased) whereas Ibrar Hussain alias Bali (appellant) inflicted knife blow on the ribs of Nayyar Abbas deceased towards left side while abusing him, who became injured and fell down on the ground. The complainant as well as Mian Muhammad (PW-10) tried to apprehend Ibrar Hussain appellant and Tahseen (acquitted accused) but Ibrar Hussain while brandishing his, knife warned that whosoever came near would not be spared and both of them decamped from the spot. When Nayyar Abbas injured was brought to Al-kram Hospital Talagang, he succumbed to the injuries.
The appellant was, arrested on 18.08.2010 by Muhammad Yar, S.I. (PW-11). According to the prosecution case, during the course of investigation, on 21.08.2010, the appellant, Ibrar Hussain, led to the recovery of knife (P-4), which was taken into possession through memo Exh. PG. After completion of investigation, the challan was prepared and submitted before the learned trial court.
The learned trial court, after observing legal formalities, as provided under the Code of Criminal rocedure, 1898 framed charge against the appellant on 27.09.2010, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced twelve witnesses, during the trial.
Muhammad Faisal complainant (PW-9) and Mian Muhammad (PW-10) are the witnesses of ocular account. Muhammad Sohail (PW-6) is witness of recovery of knife (P-4) from Ibrar Hussain (appellant) whereas Muhammad Yaqoob (PW-7) is witness of altercation took place between Nayyar Abbas deceased and Ibrar Hussain appellant prior to the occurrence.
The medical evidence was furnished by Dr. Muhammad Aftab (PW-4), who on 09.08.2010 at about 10.00 p.m. Conducted postmortem examination on the dead body of Nayyar Abbas deceased.
Muhammad Yar, SI (PW.11) is the Investigating Officers of this case, who deposed about the various steps taken by him during the course of investigation.
Riaz Ahmed (PW-1), Muhammad Riaz 776/C (PW-2), Ghulam Ghous/C (PW-3), Sarfraz Khan (PW-5), Nisar ud Hassan ASI (PW-8), and Muhammad Ashraf Gondal, SI (PW-12) are the formal witnesses.
' The prosecution has also produced documentary evidence in the shape of memo of possession of bloodstained earth Ex.PA, memo of possession of bloodstained clothes of deceased Ex.PB, postmortem report of Nayyar Abbas deceased Ex.PC and Ex.PC/1, application for postmortem Ex.PD and Ex.PD/1, inquest report of Nayyar Abbas deceased Ex.PE, site plan Ex.PF, memo of possession of knife Ex.PG and Ex.PG/1, statement of Muhammad Faisal complainant Ex.PH, FIR Ex.PH/1, site plan without scale of place of occurrence Ex. PI, site plan without scale of place of recovery of knife Ex.PJ, reports of Chemical Examiner Ex.PK and Ex. PL and reports of Serologist Ex. PM and Ex.PN and closed its evidence.
5. The statement of the appellant under section 342, Cr.P.C. Was recorded by the learned trial court on 28.01.2012. He refuted the allegations leveled against him and professed his innocence. While answering to a question that "Why this case against you and why the PWs have deposed against you?" appellant cplied as under:-- "Deceased died under mysterious circumstances in the darkness of night in an un-witnessed occurrence. Witnesses were not present. Deceased was first taken to Alkaram Hospital Talagang and thereafter to THQ Hospital Talagang. I have been involved in this case on the basis of suspicion. I had no motive or grudge against the deceased to take his lift who was almost of my age. PWs are related interse to the complainant. All the PWs deposed against me and my co-accused falsely as a family arrangement and just to strengthen the prosecution case."
' The appellant did not opt to make statement on oath, under section 340(2), Cr.P.C., nor he produced any evidence in his defence.
6. Upon conclusion of the trial the learned trial court after finding the prosecution's case against the appellant to have been proved beyond reasonable doubt, he was convicted and sentenced by it as mentioned and detailed above. Hence, the present appeal and the connected Murder Reference before this Court.
7. Learned counsel for the appellant, in support of this appeal, contends that no motive whatsoever has been mentioned by the complainant in the FIR; that the story of motive incident was an afterthought which was introduced at a belated stage to strengthen the prosecution case as Muhammad Faisal complainant (PW-9) himself admitted during the cross-examination that the deceased had come to his house on 9.8.2010, but he did not disclose anything about the motive incident; that both the eye-witnesses were chance witnesses and are not the natural witnesses of the occurrence, therefore, they cannot be relied upon for maintaining the conviction and sentence of the appellant; that there are contradictions in the statements of both the eye-witnesses; that both the eye-witnesses were not present at the spot and they had not seen the incident, who had failed to give any reason for their being present at the spot; that the appellant had no motive to commit the murder of the deceased and he was involved in this case due to suspicion and even no motive whatsoever has been mentioned by the eye-witnesses; that at the time of commission of offence, the appellant was minor and superior courts of this country have repeatedly reduced the sentence of teen agers from death sentence to imprisonment for life. Reliance is placed on the order passed by the august Supreme Court of Pakistan in Criminal Appeal No. 24-L of 2009. He lastly argued that if his submissions are not found favour, then it is not a case in which death sentence should be awarded.
8. Conversely, the learned Deputy Prosecutor General, for the State, opposes this appeal on the grounds that introduction of the motive story after the registration of the case appears to be the natural outcome of the events as had there been any mala fide on the part of the complainant, he would have introduced some motive in the FIR, but since he was not in the knowledge of the motive incident, therefore, he did not allege any motive at the time of registration of the case; that there is no mitigating circumstance in this case; that the sentence of death was rightly awarded to the appellant and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative.
9. We have heard the arguments of the learned counsel for the appellant and the learned Assistant District Public Prosecutor, and have also gone through the evidence available on the record, with their able assistance.
10. The occurrence in the present to the prosecution took place on 09.8.2010 at 7.30 p.m. In the area of Mouza Kot Sarang, falling within the territorial jurisdiction of Police Station Saddar Talagang Tehsil Talagang District Chakwal, 14 kilometers away towards North from the police station, whereas, the matter was claimed to be reported by Muhammad Faisal complainant (PW-9), through his Fard Biyan (Ex. PH) made to Muhammad Yar, S.I. (PW-11) at THQ Hospital, Talaghang on 9.8.2010 at 9.30 p.m (night), on the basis of which Muhammad Ashraf Gondal, S.I (PW-12) chalked out the formal FIR (Ex. PH/1) on 9.8.2010 at 9.45 p.m. Under sections 302/ 34, P.P.C. In the FIR (Ex. PH/1) the name of the appellant as a main accused who inflicted knife blow in the ribs of Nayyar Abbas deceased towards left side and the details of the incident have been duly mentioned. It has been stated in the FIR (Ex. PH/1) by the complainant himself that after the incident he had taken the deceased in injured condition to Al-Karam Hospital, Talagang but on reaching there the deceased had succumbed to the injuries. Postmortem examination on the dead body of Nayyar Abbas (deceased) in the present to Dr. Muhammad Aftab (PW-04) was conducted on 09.08.2010 at 10.00 p.m. And probable time that elapsed between injuries and death was within one hour and whereas the duration between the death and postmortem examination was four hours about. In such circumstances, the delay has been properly explained by the complainant as naturally the first priority/preference of the complainant was to save the life of the deceased who was his close relative instead of approaching the police for registration of the case so he had to take him to the hospital. In the meanwhile, if the other witnesses had not approached the police for registration of the case as they were also equally worried to save the life of the injured, a young man of about 18 years and it cannot be said that the time was consumed in concocting a false story. Therefore, we find that the delay in lodging the FIR was properly explained which was natural. In Such circumstances, not only the delay has been properly explained but also the same is supported by the documentary evidence. In such circumstances, we find that the FIR can be used as a corroborative piece of evidence to the ocular account.##TSE#
11. The ocular account of the prosecution was furnished by the complainant Muhammad Faisal (PW-9) and Mian Muhammad (PW-10). The examination in chief of Muhammad Faisal complainant (PW-9) recorded by the learned trial court on 15.10.2011, is reproduced hereunder for ready reference:-- "I worked at Usman tailors Talagang as employee and I went back home daily. On 9.8.2010, at evening time when I finished my work went to my house and when I reached near in front of Govt.
Primary school at 7.30 p.m., Mian Muhammad son of Haji Ghulam Hussain met me. In the meanwhile we listen hue and cry from Ban gala Noor Badshah side, we went towards the noise, we saw that Tehseen Ayaz accused, Ibrar Hussain alia's Bali accused and Nayyar Abbas since deceased were abusing to each other. Tehseen Eyaz accused caught hold the deceased Nayyar from his arms and the accused Ibrar Hussain hit knife blow on deceased, which hit on his left side of chest on ribs. Nayyar fell down in injured condition. We tried to apprehend Tehseen and Ibrar accused present in the Court. Ibrar Hussain after waiving his knife and advanced threat if any one came forward to me he would be met with the same fate. Both the accused ran away from the spot. I along with Mian Muhammad brought Nayyar Abbas in injured condition towards Al-karam Hospital Talagang for treatment but he succumbed in the way. Both the accused murdered the deceased Nayyar Abbas. I recorded my statement Ex. PH and I signed the same. Police visited the place of occurrence on 10.08.2010. 1 along with Mian Muhammad PW showed the place of occurrence to the 1.0.
' The statement of other eye-witness namely, Mian, Muhammad (PW-10) is also on the same lines.
In the murder case the time and place of the occurrence are important factors and from the facts and circumstances of the case the Court can satisfy its conscious that whether the incident was unseen or the other people could be present at the scene of occurrence at the relevant time.
Occurrence in the present case took place on 9.8.2010 at 7.30 p.m. In the area of Mauza Kot Sarang where PW-9 Muhammad Faisal complainant and PW-10 Mian Mohammad were also residing and seeing of occurrence by both the above-said witnesses at evening time while coming back to their houses after doing their jobs/works was quite possible. Both the eye-witnesses have given plausible explanations for their being present at the time and place of occurrence and both of them cannot be termed as chance witnesses as both of them are the residents of the same area where the occurrence took place and the alleged occurrence was committed on a public thoroughfare. Even otherwise, there was no possibility of mistaken identity of the appellant as both the parties were known to each other prior to the occurrence being residents of the same locality.
The manner in which the occurrence took place, weapon of offence used by the appellant during the occurrence, receipt of injuries by the deceased, time of occurrence as mentioned by Muhammad Faisal complainant (PW-9) was fully corroborated by the other eye-witness, namely, Mian Mohammad (PW-10). Though Muhammad Faisal complainant (PW-9) is close relative of Nayyar Abbas deceased as the deceased was son of his real maternal uncle but that relationship alone is no ground to disbelieve or discard his evidence when he has got no enmity, grudge or animosity against the appellant to falsely implicate him in a case entailing capital sentence. PW-10 Mian Muhammad is neither related to the deceased, nor inimical towards the accused in any manner, therefore, he is totally and completely an independent witness. Nayyar Abbas deceased was first cousin of Muhammad Faisal complainant (PW-9) as the deceased was son of real maternal uncle of the complainant, so it is not probable that he will let off the real culprit and will falsely implicate the appellant in the murder case of his near kith and kin. Substitution in such like cases is a rare phenomenon. Here, we refer the case of Khalid Saif Ullah v. The State (2008 SCM R 688) wherein at page 692 Hon'ble Supreme Court of Pakistan has observed as under:-- "Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of Irshad Ahmad and others v. The State and others PLD 1996 SC 138" The above mentioned eye-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 straightforward and confidence inspiring.##TSE#
12. Learned counsel for the appellant has also drawn our attention to some contradictions and improvements made by the prosecution witnesses in their statements before the court. We have noted that the prosecution witnesses have not made any dishonest improvement or contradictions on material aspects of the case. The improvements and contradictions made in their statements are minor and not significant which normally occur in the statements of the witnesses due to elapse of time.##TSE#
13. The medical evidence of the prosecution was furnished by Dr. Muhammad Aftab, THQ Hospital, Talagang (PW-4). He on 09.08.2010, at about 10.00 p.m. Conducted postmortem examination on the dead body of Nayyar Abbas (deceased) and found the following injuries on his person:--
1. An incised wound 2 cm x 1-1/2 cm on the left side of chest cage 8 cm on the left nipple to its left side and 10 cm from the roof of left arm pit. It was going deep into deep chest cavity.
2. An abrasion on the upper part (planter aspect) of the right toe and other small toes of right foot.
3. A small superficial burn on the right leg Just near middle of right leg on inner side few centimeters above medial maleolus of right ankle. In his opinion, the cause of death was hemorrhage and shock which had occurred due to damages caused by injury No. 1, which was a stab incised wound inflicted by some sharp weapon.
Injury was ante mortem and hemorrhage and shock caused by this injury was sufficient to cause death in the ordinary course of life. The probable time that elapsed between injuries and death was within one hour, whereas, between death and postmortem examination was about four hours. The above mentioned medical evidence has fully supported the ocular evidence given by the above mentioned eye-witnesses of the prosecution namely, Muhathmad Faisal complainant (PW-9) and Mian Muhammad (PW-10). The time of occurrence, the seat of injuries and the kind of weapon used by the assailant, all these facts as mentioned by the above mentioned eye-witnesses of the occurrence have fully tallied with the medical evidence of the prosecution.
14. The motive setup by the prosecution witnesses was that about four days prior to the occurrence there was an exchange of hot words between accused Ibrar Hussain and the deceased in the cricket ground and the deceased slapped the accused-appellant for which Ibrar Hussain accused-appellant threatened the deceased that he would have to pay the price of that slap.
Motive evidence has been produced by Muhammad Yaqoob (PW-7). He was father in law of the father of the deceased Nayyar Abbas and his house was at a distance of 15 minutes walk from the house of the deceased. The motive incident, did not take place in his' presence and he was not the eye-witness of the motive incident rather the same is based on hearsay. The prosecution has not produced any witness before whom motive incident took place. No specific reason whatsoever has been given by the prosecution regarding the alleged quarrel between the appellant and the deceased. Neither any specific date or time of the alleged quarrel has been mentioned by the prosecution witnesses. This Court has noticed that the prosecution failed to produce any documentary evidence to prove the motive or whether any case was registered. The oral version of the witness is not sufficient to prove the motive. We have noted that a vague motive has been alleged by the prosecution as no specific reason of the quarrel between the appellant and the deceased has been given by the prosecution and no cogent evidence to prove the motive has been produced by the prosecution, therefore, we are of the view that the motive as alleged by the prosecution has not been proved in this case.
15. The recovery of knife (P.4) on the pointing out of Ibrar Hussain appellant was legally inconsequential and cannot be used as a corroborative piece of evidence to the ocular account on the following reasons:--
(i) The prosecution had produced Muhammad Sohail (PW-6) who had not stated in his examination-inchief that the knife (P.4) was stained with blood. Similarly,Muhammad Yar, (PW-11) also had not stated in his examination-in-chief that the said knife (P.4) was stained with blood.
(ii) Even otherwise, the said recovery had been effected in violation of section 103, Cr.P.C. As no person from the locality from where thealleged recovery had been effected including Lambardar, '
' Nazim, Naib Nazim, Councilor, Chowkidar or any other respectable of the locality was joined by the Investigating Officer in the said recovery proceedings.
(iii) The said weapon was not recovered from the place exclusively owned and possessed by the appellant and as such the recovery is inconsequential.
(iv) More surprisingly, knife (P.4) was sent to the office of Chemical Examiner on 20th August 2010 whereas the recovery of knife (P.4) was effected from the appellant on 21.8.2010, as such one day prior to the effecting of recovery how the alleged knife was sent to the office of Chemical Examiner.
Moreover, the said knife was received in the office of Chemical Examiner on 25th August, 2010, and there was little possibility of detecting of blood on the said knife even after the passage of about 16 days.
' Even otherwise, as per prosecution case knife (P-4) was recovered after about twelve days from the occurrence. It does not appeal to the mind of a prudent person that Ibrar Hussain appellant would keep the blood-stained weapon intact for such a long period because he had ample opportunity during the above mentioned period to wash away the blood stains from his weapon.
The Hon'ble Supreme Court of Pakistan in the case of Basharat and another v. The State (1995 SCM R 1735) disbelieved the evidence of blood-stained dagger which was allegedly recovered from the accused after ten days from the occurrence. Relevant part of the said judgment at page No. 1739 is reproduced hereunder for ready reference:-- "11. The occurrence took place on 20.04.1988. Basharat appellant was arrested on 28.04.1988. The blood-stained Chhuri was allegedly recovered from his house on 30.04.1988. It is not believable that he would have kept blood stained chhuri intact in his house for ten days when he had sufficient time and opportunity to wash away and clean the blood on it" As mentioned earlier the blood stained knife (P-4) was deposited in the office of chemical examiner, after about 25 days from the occurrence, therefore, it was unlikely that the blood on the knife would not disintegrate during the above mentioned period. Reliance in this regard is placed on Muhammad Jamil v. Muhammad Akram and others (2009 SCM R 120). We are, therefore, of the view that the alleged recovery of knife (P-4) from Ibrar Hussain appellant is of no avail to the prosecution. However, mere non-proving of the recovery of weapon of offence or even its non- recovery cannot be held sufficient to exonerate the accused from the commission of the crime.
16. As a result of above discussion, we find that the prosecution had been able to prove the case against the appellant beyond any shadow of doubt, and thus, his conviction recorded under section 302(b), P.P.C. By the learned trial court is maintained.
17. As far as quantum of sentence is concerned, we have noted some mitigating circumstances in favour of the appellant Ibrar Hussain, firstly the appellant inflicted a single blow with knife and did not repeat any injury on the person of Nayyar Abbas deceased, secondly we have disbelieved the recovery of knife (P.4) from the possession of Ibrar Hussain appellant due to the reasons mentioned in para No. 15 of this judgment, thirdly, as held earlier, the prosecution remained unable to prove the motive in this case. 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 had resulted into the death of Nayyar Abbas deceased and fourthly, there is another important fact of the case is that in the body of the judgment of the learned trial court age of the appellant has been mentioned as 18/19 years. The High Court Rules and Orders (Volume III) in Chapter 22-A, paragraph 8, lays down the following instructions of the High Court to the Criminal Courts:- "..... The Judges are also pleased to direct that all Criminal Courts should in future enter the ages of the convicts in the body of their judgments, with a view to being directly seized with the question of age when deciding the sentence to be imposed on a juvenile or adolescent." Similarly, charge against the appellant was framed on 27.09.2010 and the appellant in his statement while denying the charge has also mentioned his age. As 18/19 years. Though the learned trial court has not mentioned the age of the appellant in his statement recorded under section 342, Cr.P.C., however, while replying to question No. 18, the appellant has specifically stated that he had no motive or grudge against the deceased to take his life who was almost of his age and as per Postmortem Examination report of the deceased Ex. PC, the age of the deceased has been mentioned as 18 years. Statement of the appellant under section 342, Cr.P.C. Was recorded on 28.1.2012 while the incident in the present case took place on 9.6.2010, as such the statement of the appellant was recorded after about one year seven months and 19 days of the incident. Even if age of the appellant is taken as 18 years the age of the appellant at the time of incident would be about 16-1/2 years at the time of incident. Even if two views can be formed, the view in favour of the accused has to be taken into consideration and the superior courts of this country have repeatedly reduced the sentence of teen agers from death sentence to imprisonment for life. In this regard, the learned counsel for the appellant has rightly relied upon the order passed by the august Supreme Court of Pakistan in Criminal Appeal No. 24-L of 2009, the relevant portion is reproduced as under:-- "xxx the appellant in his statement under Section 342, Cr.P.C. Had mentioned his age 21/22 years. Ordinarily, statement under Section 342, Cr.P.C. Neither could be used by the prosecution nor by the defence for the purpose of proving the offence or innocence of the accused. Learned trial Court has mentioned the age of appellant as 21/22 years and the learned High Court has also noted down the age of the appellant as recorded by the trial Court in the statement under section 342, Cr.P.C., therefore, to this extent, statement under section 342, Cr.P.C. Would have some legal importance. In the case which has been relied upon by the learned counsel exactly with the same situation, this Court was confronted and had accepted the plea of accused of being minor. It is also to be noted that statement of appellant had to be accepted for the purpose of calculating the age, reliance was placed on the earlier judgment of this Court reported as Sohail Iqbal v. The State (1993 SCMR 2377). It is now settled that if there is doubt in respect of the age of accused the benefit is given to him for the purpose of reducing the quantum of sentence."
In view of the discrepancy regarding non-mentioning the age of the appellant in his statement under section 342, Cr.P.C. It is only fair that the benefits should be extended to him particularly in view of the precedent of the august Supreme Court in Javid Iqbal v. The State (1982 SCM R 447). In such circumstances the death sentence awarded to the appellant by the learned trial court is converted into imprisonment for life. However, the direction for payment of compensation and in lieu thereof six months S.I. Is maintained. Benefit of Section 382-B, Cr.P.C. Shall also be extended to the appellant.
18. With the above reduction in the quantum of sentence only, the impugned judgment is modified accordingly and Criminal Appeal No.126 of 2012 stands dismissed.
19. Murder Reference No.23 of 2012 is answered in the negative and the sentence of death passed by the learned trial court against Ibrar Hussain appellant is not confirmed.