' RAJA SHAHID MEHMOOD ABBASI, J.---This judgment shall dispose of Crl.A.No,824 of 2010 titled "Iftikhar Ahmad v. The State" filed by Iftikhar Ahmad (appellant), against his conviction and sentence, as well as Murder Reference No,93 of 2010 titled as "The State v. Iftikhar Ahmad", transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Iftikhar Ahmad (appellant), being originated from the same judgment dated 29-10- 2010, passed by the learned Addl. Sessions Judge Rawalpindi, in case FIR No, 551 dated 21-08-2009, under section 302, P.P.C., registered at Police Station R.A.Bazaar, Rawalpindi, whereby the appellant was convicted and sentenced as under:-- ' Iftikhar Ahmad ' under section 302(b), P.P.C., death sentence for the murder of Major Rehana (deceased) and to pay compensation of Rs,1,00,000/- under section 544-A Cr.P.C. To the legal heirs of deceased or in default thereof to further undergo six months' S.I.
2. Brief facts of the case as narrated in the FIR (Ex.PH/3) recorded on the complainant (Ex.PH) of Muhammad Nehrasab (PW.9) are that he along with Tahira Bibi (PW.8)/sister of Major Nursing Rehana came to the house of his "Hamzulf", Iftikhar (accused/appellant) at Bakara Mandi. At about 7.00 a.m., on fateful day Iftikhar Ahmad, accused, his wife Major Nursing Rehana (deceased), the aforesaid Tahira (PW.8), Dur-e-Shawar (PW.7), daughter of accused Ifitkhar Ahmad and he (complainant) were present in the house: The complainant went, to Bazar and returned at about 8.20 a.m. And when he entered in the house, he saw accused Iftikhar Ahmad, while alighting from stairs in a running position whose clothes were stained with blood passed nearby him. The complainant rushed upstairs and inside saw his sister-in-law Major Nursing Rehana lying dead on the floor, smeared with blood while Tahira (PW.8) and Dur-e-Shawar (PW.7) were weeping. They informed him on asking that they both and the deceased were sitting on the bed lying in the room and the time would be at 8.00 a.m. When Iftikhar Ahmad accused came there from the roof and called Major Rehana. As soon as she got up from the bed, the accused Iftikhar stabbed a Churra kin her belly and he threatened them not to move, otherwise he would murder them as well. He gave repeated Churra blows to Major Nursing Rehana, who sustained injuries on different parts of her body. She then fell down on the floor and Iftikhar Ahmad accused cut her neck with Churra and she succumbed to the injuries. Iftikhar Ahmad, accused ran away from the spot. The occurrence was witnessed by Dur-e-Shawar (PW.7) and Mst. Tahira Bibi (PW.8).
3. After completion of the investigation, report under Section 173, Cr.P.C. Was submitted against the appellant in the Court for trial. Charge was framed to which he pleaded not guilty and claimed trial. In order to prove its case the prosecution examined as many as 10-PWs in all.
' Muhammad Nehrasab (PW.9) is the complainant of this case whereas Dur-e-Shawar (PW.7) and Mst.Tahira Bibi (PW.8) are the eye-witnesses of the case.
' Muhammad Aslam, SI/I.O. (PW.10) stated the steps taken by him during the course of investigation and also investigated the case and recorded the statements under section 161, Cr.P.C.
' PW.2 Dr. Manza Kauser, conducted the post-mortem examination on the dead body of Major Nursing Rehana (deceased) on 21-08-2009 and she found following injuries on her person:-- ' An incised wound which is 19 cm in left on back from right ear to chin, 04 cm from right ear, 06 cm in width, deep wound, carotid and other blood vessels were cut. Trachea was cut.
' Vertebrae was also cut through and through.
2. On left side of neck an incised wound which was 5 cm from left ear. It was 08 cm x 4 cm, also deep. Blood vessels were cut
3. Left breast. An incised wound which was -5 cm below the nipple 04 cm x 01 cm in size, skin and fat was damaged.
4. There was another incised wound on left breast 04 cm from midline of sternum 03 cm x 01 cm size, skin and fat was involved also.
5. As stab wound on abdomen 8 cm above umbilicus, 06 x 01 cm in size deep, penetrating involved peritoneal cavity and cut. Skull and vertebrae.
' No abnormality detected. Neck Vertebrae damaged. Membrane Brain Spinal Cord.
' In the opinion of the doctor the death was due to cut throat injury caused by sharp edged weapon and penetrating caused by sharp edged weapon, which damaged main vessels of neck, trachea and also abdominal organ gut, also lead to excessive haemorrhage shock and death. The injuries were ante-mortem in nature and were sufficient to cause death in ordinary course of nature.
Probable time between injuries and death was immediate and between death and the postmortem was 08 to 10 hours.
4. The statement of the appellant under Section 342, Cr.P.C. Was recorded. He denied the allegations levelled against him and claimed his innocence. In answer to a question, "why this case against you and why the PWs had deposed against you", Iftikhar Ahmad, appellant stated as under:-- ' "The complainant Nehrasab has admitted his enmity with me. He misguided my Sali. Tahira PW and my daughter Dur-e-Shahwar PW and misused them against me, whereas the contradictions in their statements prove to the hilt that the said three PWs were not the eyewitnesses of the unseen occurrence."
' The appellant opted not to appear as his own witness under Section 340(2), Cr.P.C. In disproof of the allegations levelled against him by the prosecution nor opted to produce defence evidence.
5. After conclusion of the trial, the appellant was convicted and sentenced as noted hereinabove, by the learned trial court, hence this criminal appeal before this Court.
6. Learned counsel for the appellant in support of this appeal contends that despite the fact, that the prosecution has failed to prove its case beyond any shadow of doubt, the learned trial court convicted and sentenced the appellant; that in fact it was a blind murder, which was reported to police with an inordinate and unexplained delay of two hours; that PW.9 Muhammad Nehrasab and PW.8 Tahira Bibi could not furnish any plausible explanation regarding their presence at the place of occurrence at the early hours of the day. The medical evidence contradicts the prosecution story. The prosecution story is pregnant with doubt. The PWs are interested and inimical to the appellant and in this way the prosecution failed to bring home guilt of the appellant and prayed for his acquittal from the charge.
7. On the other hand the learned DPG assisted by the learned counsel for the complainant supported the impugned judgment and Controverted the arguments of learned counsel for the appellant with vehemence and argued that the PWs have no malice or against the appellant and their statements are straightforward and confidence inspiring. The recovery of blood stained Churra on, the pointation of the accused connect him with the commission of the offence.
8. We have heard the learned counsel for the appellant, learned DPG, learned counsel for the complainant and have also perused the record of this case with care and caution. According to the prosecution's case, this unfortunate incident took place at 8.00 a.m. In the house of deceased, situated at Bakra Mandi Rawalpindi in the territorial jurisdiction of Police Station, RA, Bazar and reported well within 2.00 hours at the place of occurrence and recorded statement of Muhammad Nehrasab PW.9 and sent the same for registration of FIR to set the law in motion at 10.00 a.m. The promptness in lodging of FIR excludes the impression that the complainant had deliberated or consulted anybody before the lodging of FIR, especially when it is a case of a single accused whose real daughter Dur-e-Shawar, appeared as eye-witness as PW.7. The parties to the case were known to each other being relatives. The misidentification of the accused in the case is out of question.
9. The prosecution case is that on 21-08-2009 Muhammad Nehrasab PW.9 along with Tahira PW.8, his sister-in-law (Sali) visited the house of deceased Major Nursing Rehana and the complainant Nehrasab Khan, PW.9 left for bazaar at 7.20 a.m. And when at 8.15/20 a.m., he returned, saw appellant Iftikhar Ahmad with blood stained clothes running down stairs, when he reached at upper story of house, he found Dur-e-Shawar, PW.7 and Tahira Bibi PW.8 in weeping condition, whereby Rehana deceased was lying in dead condition on floor of upper portion of house. PW.7 bur-e-Sahwar and PW.8 Tahira Bibi, the eye-witnesses informed him that appellant Iftikhar Ahmad came down stairs from the roof and committed murder with Churra blows and also cut the throat of deceased Rehana.
10. From the prosecution's own case, it is crystal clear that PW.9 Muhammad Nehrasab is not an eye-witness of the occurrence and his testimony is to the extent of seeing appellant running from the scene of occurrence with blood stained clothes. A perusal of evidence transpires that it is the case of the prosecution that complainant came along with PW.8 Tahira Bibi in the house of occurrence at 7.00 am. The complainant sticked to this statement while PW.8 Tahira Bibi, who stated to be accompanying him deposed that she came along with complainant at about Isha time on the preceding night of the occurrence. PW.7 Dur-e-Shawar, who is real daughter of deceased Rehana and appellant Iftikhar Ahmad did not support that PW.8 Tahira Bibi and PW.9, Muhammad Nehrasab came on preceding night. Moreover, PW.8 Tahira Bibi stated that at night Muhammad Nehrasab PW.9 slept in the drawing room of the house of occurrence. The contradictions regarding time of the arrival of the witnesses, who allegedly came together make their presence and intrinsic value of their evidence highly doubtful.
11. Considering the afore-referred circumstances; if presence of PW.8 Tahira Bibi and PW.9 Muhammad Nehrasab from the place of occurrence is -disbelieved, even then evidence of Dur-e- Shawar, PW.7 remains in the field, who is the real daughter of deceased Major Nursing Rehana as well as appellant Iftikhar Ahmad. Her presence in the house of occurrence at the relevant time of occurrence is natural. Although, during cross-examination, she stated that she is student of first year and her other sisters were at school, she furnished plausible explanation of her presence in the house at the fateful time as during cross-examination she stated that on said day, it was practical day in the College and she was not having practical book, hence, she did not opt to attend College. She came in the witness box and on oath, she specifically stated that she was present in the bedroom of, his deceased mother when appellant came down the stairs and called her deceased mother, Major Nursing Rehana, but she did not listen and appellant gave blows with Churra at the abdomen of the deceased. She further narrated the occurrence by stating that appellant ultimately cut the throat of deceased Rehana.
12. It is relevant to mention here that during cross-examination it was suggested by the defence that on the fateful day, the appellant had gone to offer Fajar prayer and was present in the Mosque when unknown persons entered in the house of deceased for the purpose of dacoity and on resistance murdered the deceased. This stance was not taken by the appellant, while making statement under Section 342, Cr.P.C. It is the case of the defence that appellant offered Fajar prayer and occurrence took place, when he was in the Mosque but he did not produce any one from the residents of the locality in his support that occurrence took place at dawn time. Moreover, stance of defence is also not corroborated by the medical evidence. Record transpires that autopsy of deceased Rehana was carried out by PW.2 Dr. Manza Kauser, who also proved her postmortem report Ex.PC. She on the postmortem mentioned the time of conducting' postmortem as 4.00 p.m.
And time between the death and autopsy at 8 to 10 hours. She also mentioned that time between injury and death was immediate. If the stance of appellant is stretched in his favour even then the time of occurrence does not come to Fajar prayer as occurrence took place in the month of August.
13. As observed above, despite disbelieving the testimonies of PW.8 Tahira Bibi and Muhammad Nehrasab PW.9, the sole eye-witness Dur-e-Shawar PW.7 remains in the field and the question for determination before us is whether the conviction and sentence awarded to Iftikhar Ahmad, appellant on capital charge, can be maintained on solitary statement of Dur-e-Shawar, PW.7. Here we are fortified by the dictum of law laid down by the Honuorable Supreme Court of Pakistan in the case reported as "Muhammad Mansha v. The State" (2001 SCM R 199) wherein it was enunciated as under:- "6. The question as formulated hereinabove as to whether conviction could have been awarded on the basis of solitary statement of a witness has been examined at first instance in the light of Article 17 of the Qanun-eShahadat Order, 1987 (section 134 of the Evidence Act 1872). The said ' Article is reproduced herein below for ready reference.
"17. Competence and number of witnesses.---(I) The competence of a person to testify and the number of witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
(2) Unless otherwise provided in any law relating to the Enforcement of Hudood or any other special law--
(a) in matters pertaining to financial or future obligations, if reduced to writing, the instrument, shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and
(b) in all other matters, the Court may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant."
7. A bare perusal would reveal that the language as employed in Article 17(I)(b) of Qanun-e- Shahadat Order, 1984 is free from any ambiguity and no scholarly interpretation is required. The provisions as reproduced hereinabove of the said Article would make it abundant clear that particular number of witnesses shall not be required for the proof of any fact, meaning thereby that a fact can be proved only by a single witness "it is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases, which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence.
If the Legislatures were to insist upon plurality of witnesses, case where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is held that the discretion of Presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness, whose testimony has to be either accepted or rejected, if such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though considerable number, of witnesses may be forthcoming to testify to the truth of the case, for the prosecution. The Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact". (Principles and Digest of the Law of Evidence by Monir Page 1458)."
14. Dur-e-Shawar, PW.7 is the real daughter of the appellant and it cannot be expected that a real daughter will exonerate E real culprit and through substitution will involve or support the effort to involve appellant, her real father. We are of considered view that the evidence of Dur-eShawar is coherent and confidence inspiring, which is also fully corroborated by medical evidence furnished by Doctor Manza Kauser, PW.2, who has opined that the death was due to cut throat injury caused by sharp edged weapon and penetrating caused by sharp edged weapon, which damaged main vessels of neck, trachea and also abdominal organ gut, also lead to excessive haemorrhage shock and death. These injures were ante-mortem in nature and were sufficient to cause death in ordinary course of nature.
15. With regard to defence plea of false implication of the appellant by the prosecution, suffice it to observe that substitution is a rare phenomenon and it could not be at least expected from a real daughter, whose mother has been murdered to falsely implicate her real father and exonerate real culprits. Mistaken identity of real culprit(s) does not arise in the instant case. Reliance can safely be placed on Allah Ditta v. The State (PLD 2002 SC 52) and Rehmat Ullah v. The State (2015 PCr.LJ 1163).
16. Prosecution has also produced another limb of evidence in the shape of recovery, which is although not an independent piece of evidence and is merely corroboratory one. Prosecution has produced PW.4 Sajjad Kauser and in whose presence, appellant made disclosure and lead to the recovery of Churra P 1 , wrapped in a paper taken into possession vide recovery memo Ex.PB from the same house of occurrence, where appellant had been residing along with the deceased Major Nursing Rehana and children at first floor. The recovery, as per prosecution evidence had been effected from the room which was not closed. Moreover, it is the same house, where occurrence took place. It is the case of the prosecution that accused gave Churra blow, which cut the throat. Of the deceased , and thereafter ran away from the scene of occurrence.
17. It is very strange that accused committed the occurrence and before decamping, concealed the weapon of offence in the room of the same house of occurrence, which is not appealable to a prudent mind, therefore, episode of recovery produced by prosecution is not believable and same is brushed aside. In this regard reference is made to the esteemed judgment in case of Ali Sher and others v. The State (2008 SCM R 707). Wherein at Page No,711, it was held as under:-- ' "The crime-empties having been allegedly found at the place of occurrence and retained for so long in the police station and sent to the F.S.L along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys any evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony."
18. It is also relevant to mention here that law was set into motion on the basis of complaint Ex.PH, the oral statement of complainant Muhammad Nehrasab PW.9, wherein no igniting cause was given. PW.7 Dur-e-Shawar' in her statement, for the first time, in the court brought on the surface the motive i.e, pendency of family suits instituted by deceased Major Nursing Rehana, her mother.
The motive appears to be an afterthought, especially considering the fact that appellant was residing in the same house of occurrence along with the deceased and children. Had it been the case of the prosecution that relations were strained and appellant was residing separately, then position would have been otherwise. In the light of afore going discussion, we are of the view that motive in thepresent case is shrouded in the mystery.
19. In the light of afore discussed evidence, we are of the view that prosecution by producing confidence inspiring, trustworthy and sure footed evidence of PW.7 Dur-e-Shawar coupled with medical evidence furnished by Dr. Manza Kauser, PW.2, able to discharge the onus of commission of Qatl-e-Amd of deceased Major Nursing Rehana by appellant Iftikhar Ahmad beyond any shadow of doubt.
18. Now coming to the quantum of sentence, we have noted that firstly, we have not considered recovery of Churra P1 as corroborated piece of evidence in the instant case and secondly it is not determinable in this case as to what was the real cause of the occurrence and as to what actually happened immediately before occurrence, which resulted into the assassination of an innocent lady, especially considering the fact that the appellant was residing in one and the same house along with the deceased and children. We could not convince ourselves that when the relation between the spouses were strained and the deceased had filed family suits against the appellant then how they were residing in the same house of occurrence along with the children. Therefore, in our view the death sentence awarded by the trial court to the appellant is quite harsh. It is well recognized principle of law by now that accused is entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence as well. In this regard, we are fortified by the dictum laid down by the honourable Supreme Court of Pakistan in case titled Nawaz Khan v. Shabbir and the State (1999 SCM R 1007), while determining the proper quantum of sentence Honourable Supreme Court in Para No,9 of the judgment has observed as under:-- "9.... The question of benefit of reasonable doubt is necessarily to be determined not only while deciding the guilt of an accused persons but also while considering the question of sentence particularly in a murder case, because there is a wide difference between two alternative sentences-- death or imprisonment for life. Benefit of reasonable doubt in respect of the real cause of the occurrence was thus available to the accused. Needless to add that whenever the real cause of murder is shrouded in mystery is unknown and is concealed the court has normally awarded the lesser punishment under section 302, P.P.C. ...As matter of abundant caution.
21. For the foregoing reasons the conviction of Iftikhar Ahmad under Section 302(b), P.P.C. Awarded by the learned trial Court is maintained but his sentence is altered from death to K imprisonment for life. The compensation awarded by the trial court and sentenced in default thereof is maintained. The benefit of section 382-B, Cr.P.C. Is extended in favour of the appellant.
22. Consequently, with the above said modification in the sentence of appellate Criminal Appeal No,824 of 2010 filed by Iftikhar Ahmad, present appellant is hereby dismissed.
23. Murder Reference No,93 of 2010 is answered in negative and death sentence of Iftikhar Ahmad present appellant is not confirmed.