' Mehmood Maqbool Bajwa, J.--Imtiaz Hussain, appellant, along with Waqas Raza was 'sent up to face trial in case FIR No, 87 of 2009 registered under Section 302 read with Section 109 of The Pakistan Penal Code 1860 (Act No, XLV of 1860)- (Hereinafter called the Cod& at Police Station Kameer, Sahiwal.
2. Learned Additional Sessions Judge, Sahiwal after conclusion of trial through judgment dated 22.10.2010 while-recording acquittal in favour of Waqas Raza, holding Imtiaz Hussain; appellant, guilty under Section 302.(b) of the Code, awarded him -sentence of death under the said provisions 'of law beside payment of compensation to the tune of Rs, 1,50,000/- under Section 544(A) of the Code of Criminal Procedure 1898 (Act V of 1898) (hereinafter called Act 'V of 718981 to be reimbursed amongst the legal heirs of Sobedar Said Khan (deceased). In case of default in payment of compensation, the appellant was to further undergo 6-months simple imprisonment.
3. Imtiaz Hussain, (appellant) calls in question the legality and validity of judgment dated 22.10.2010 by preferring Crl. Appeal. No, 1089 tilted "Imtiaz Hussain v. The State etc". Since sentence of death was awarded by the learned trial Court to Imtiaz Hussain, (appellant) therefore, Reference was sent for confirmation or otherwise of sentence of death.
4. Criminal Appeal No, 1089 of 2010 as well as Murder Reference No, 214 of 2010 shall be disposed of by us through this single judgment: 5, Prosecution version in brief contained in First Information Report (EX-PB-1) lodged at the instance of Habib Ullah (PW-4) on his statement (EX-PE) is that on 02.04.2009 he along with his brother Sobedar Said Khan (deceased) was present on his tube-well having conversation with each other when Abdul Rasheed Khan (PW-6) came there and after some time they all went towards Darbar of Syed Sultan Shah.
' As per accusation, Sobedar Said Khan (deceased) brother of complainant was ahead of complainant (PW-4) and Abdul Rasheed (PW-6) and at about 8.15 a.m., present appellant while armed with Churri suddenly emerged there, raised "Lalkare" to teach lesson to Sobedar Said Khan (deceased) who used to reprimand the appellant due to his addiction to narcotic and misbehaviour with women folk: ' According to the allegations, appellant made successive Churri blows causing injuries on the chest and neck of his brother. Shaukat allo Abdul Ghafoor also reached at the spot on Motor Cycle, who was going from village side towards Darbar.
6. Co accused, Waqas Raza s/o Rehmat Shah was implicated with the allegation of abetment, setting motive that said accused made attempt to commit rape with wife of Abdul Ghafoor, house servant of complainant, due to which quarrel took place and the complainant party got a case registered against Waqas Raza co-accused. As per motive suggested, the appellant committed occurrence at the instance of Waqas Raza (his paternal uncle).
7. Allah Rakha, S.I.-Investigating Officer (PW40) after making necessary endorsement on the statement (EX-PE) of Habib Ullah, complainant (PW-4) sent the same to police station for registration of case, on the strength of which formal FIR (EX-PE-1) was recorded.
8. Allah Rakha, S.I.-Investigating Officer (PW-10) while inspecting the place of occurrence took blood-stained earth through recovery memo. (EX-PG) and secured Churri (P3) from the place of occurrence through recovery memo. (EX-PH), Dead body of Sobedar Said Khan (deceased) was sent to mortuary for autopsy after preparation of injury statement (EX-PC) and inquest report (EX- PD).
9. After observing codal and legal formalities, Report under Section 173 of the Code of Criminal Procedure 1898 (Act V of 1898) (Hereinafter called Act V of 1898) was submitted against present appellant as well as co-accused Waqas Raza. Charge was framed against but 14 to which they pleaded not guilty and claimed to be tried.
10. Prosecution in order to prove its case produced Abdul Razaq, constable (PW-1), Ali Sher, constable (PW-2), Dr. Abdul Majeed (PW-3),,Habib Ullah, complainant (PW-4), Muhammad Saeed Akhtar, draftsman (PW-5), Abdul Rasheed Khan, eye-witness (PW-6), Muhammad Saee, Sub- Inspector (PW-7), Khalid Mehmood (PW-8), Masood Javed, Inspector (PW-9), Allah Rakha, S.I.- Investigating Officer (PW-10) and Manzoor Hussain, Head constable (PW-11).
' After tendering Reports of Serologist (EX-PL and EX-PM) and Chemical Examiner (EX-PN and EX- PO), prosecution closed its case.
11. Appellant in his statement recorded under Section 342 of the Act V of 1898 denied the incriminating evidence with which he Was confronted and while pleading innocence stated that he was implicated due to previous enmity and family grudge.
12. Waqas Raza was, however, acquitted by learned trial Court.
13. Learned counsel for the appellant while making reference to the contents of FIR (EX-PE-1), statement of Habib Ullah, complainant (PW-4), evidence of Abdul Rasheed, eye-witness (PW-6) and Allah , Rakha S.I-Investigating Officer (PW-10) submitted that three motives were set up by the prosecution in the First Information Report (EX-PE-1) regarding addiction of appellant to narcotic, conduct of the appellant with women folk due to which Sobedar Said Khan (deceased) used to reprimand the appellant off and on. Further submitted that motive was also set up against Waqas Raza, paternal Uncle of appellant in the Crime Report (EX-PE-1) regarding registration of case of rape by the complainant against Waqas Raza with the allegation of making an attempt to commit rape with the wife of Abdul Ghafoor, domestic servant of complainant.
' Drawing our attention towards the replies given by Habib Ullah Complainant (PW-4) and Abdul Rasheed, eye-witness (PW-6) in the cross-examination; it was submitted that complainant (PW-4) and the eye-witness (PW-6) admitted that no case was registered regarding attempt to commit zina by accused with Maroofan Bibi, sister of Nasir. Contended that it was further admitted by the said PWs that no case keeping intoxicant material was ever registered against appellant. It was further stated that Habib Ullah, complainant (PW-4) in cross-examination was unable to tell whether any criminal case was registered against the appellant Submitted that similar replies were given Abdul Rasheed, eye-witness (PW-6) in cross-examination stating that it is not in his knowledge that any case of narcotic Was ever registered against the appellant. Further submitted that, said witness was also unable to tell whether any family of native village was ever produced by them before the investigating officer during the course of investigation regarding the alleged conduct and mis-behaviour of the appellant with women folk.
' Argued that Allah Rakha, S.I.-Investigating Officer (PW-10) also admitted that he did not record statement of any person regarding addiction of appellant and no person from vicinity including father of any girl or girl appeared before him in order to support the said motive of occurrence.
Contended that in the circumstances, prosecution miserably failed to prove motives set up.
' Questioning the presence of the witnesses at the spot, it was contended that it was an unseen and un-witnessed occurrence and Habib Ullah, complainant (PW-4) as well as Abdul Rasheed, stated eye-witness (PW-6) were introduced latter on. Further submitted that keeping in view the replies given by the PWs in cross-examination, their evidence cannot be acted upon.
' Relationship of witnesses (PW-4 & PW-6) with deceased was also agitated with vehemence in order to brush aside their evidence.
' Making reference to number of injuries sustained by Sobedar Said Khan (deceased) reflected in post-mortem Report (EX-PB) and contents of FIR (EX-PE-1) it was submitted that conscious improvements were made by the prosecution with reference to number of injuries. Argued that in the circumstances, prosecution miserably failed to prove its case beyond shadow of doubt.
' Referring to motive part, argument was advanced suggesting failure of prosecution to prove the same and it was further contended that sentence of death awarded to the appellant does not commensurate with the guilt of the appellant, i' presumed to be established.
14. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant while controverting the arguments submitted that it is a day light occurrence and Crime Report (EX-PE-1) was lodged with promptness, sufficient to rule out deliberation and pre- meditation.
' Contended that specific motive was set up in the Crime Report (EX-PE-1) and evidence of ' Habib Ullah, complainant (PW-4) and Abdul Rasheed, eye-witness (PW-6) is sufficient to prove the same.
' Referring to the prosecution version, it was added that appellant after giving successive Churri blows causing injuries on chest and neck of deceased managed to escape throwing the weapon of offence i.e, Churri at the spot which at the time of spot inspection was collected by Allah Rakha S.I.-Investigating Officer (PW-10) through recovery memo. (EX-PH). Further submitted that weapon of offence i.e, Churri (P3) was sent to the offices of Chemical examiner and Serologist and as per reports (EX-PN & EX-PL) the said weapon was stained with human blood.
' Making reference to the evidence of complainant and eyewitness ( PW-4 & PW-6) it was argued that both narrated the occurrence in the straight forward manner, also highlighting role of the - accused by giving successive Churri blows on the person of deceased and then leaving the place of occurrence while throwing Churri at the spot. Further contended that evidence of both the witnesses could not be shaken in cross-examination.
14. Highlighting the cumulative effect, it was contended that case of prosecution against the appellant stands established beyond shadow of doubt.
15. Referring to the statement of appellant under Section 342 of the Act V of 1898, it was submitted that there is mere denial on behalf of the appellant pleading his innocence which by itself is not sufficient to controvert the evidence adduced by the prosecution.
16. Dr.Abdul Majeed (PW-3) conducted autopsy on the dead body of deceased and noted following injuries on his person:--
1. An incised wound about 2 CM x 1 CM on chin superficial on lower side transvers in shape.
2. An incised wound about 2 CM x 1-1/2 CM on front of neck underlying trachea is exposed. Lenear shape.
3. An oblique shape incised wound about 2 CM x 1 CM on the left side of the neck just above left sternoclavicular joint. Underlying structures were exposed.
4. Similar injury sized about 2 CM x 1 CM on the right side incised wound oblique in nature.
5. Incised wound about 2CM x 1/2 CM on the back of left shoulder superficial, no muscle cut
6. Incised wound about 2 CM x 1 CM on the back of left elbow joint, superficial.
7. An incised wound about 2 CM x 1 CM deep going on the left side of the chest about 4 CM to the left to the sternum and 4th intercostal space is involved. Underlying hematoma present.
' According to opinion of Medical Officer, cause of death in this case was Injury No, 7 caused by sharp edged weapon which was sufficient to cause death in ordinary course of nature. Probable time between injuries and death was immediate while between death and postmortem was within 8-hours. EX-PB is copy of post-mortem report while pictorial diagram suggesting seat of injuries is (EX-P13-1).
18. Conscious consideration has been given to the arguments advanced.
19. Case of prosecution rest upon evidence or motive, ocular account, medical evidence as well as recovery.
20. Two sets of motive were set up against present appellant.
' According to allegations, appellant was addicted to intoxicant material and in habit of teasing women folk and Sobedar Said Khan (deceased) used to reprimand Imtiaz Hussain, appellant creating annoyance to him resulting in occurrence.
21. The complainant did not in specific words suggested motive against appellant though in his direct statement, he disclosed motive against co-accused Waqas Raza (since acquitted) regarding registration of case of attempt to commit rape with wife of Abdul Ghafoor, domestic servant of the complainant.
22. Abdul Rasheed Khan, eye-witness (PW-6) also stated regarding registration of criminal case against Waqas Raza (since acquitted) and Imtiaz Hussain (appellant) with the allegation of attempt to commit rape with the wife of servant of Habib Ullah.
' Admittedly said motive was not attributed to the appellant as referred earlier. Replies given in cross-examination by both the witnesses clearly reveal that no case having intoxicant material was ever registered against Imtiaz Hussain, appellant.
' It was also admitted that appellant was also not involved in any case exhibiting his conduct and behavior to tease the women folk.
' Statement of Allah Rakha S.I-investigating Officer (PW-10) also can be referred to whereby said investigating officer admitted that none appeared before him in order to prove conduct and behavior of the appellant dealing with intoxication in any manner. He also admitted that no person from vicinity including father of any girl or girl herself appeared before him during the course of investigation in order to support the factum of motive attributed to the appellant.
23. Though allegation of registration of case of attempt to commit rape was attributed to Waqas Raza (since acquitted) but nevertheless the said motive was neither attributed to the appellant nor there is any evidence in order to support this fact.
24. Pursuant to above, prosecution failed to prove motive against the appellant.
25. Presence of eye-witness as well as complainant at the spot was also questioned with vehemence on behalf of the appellant.
' Occurrence took place at about 8.15 a.m., Habib Ullah, complainant (PW-4) got recorded his statement (EX-PE) at about 9.00 a.m. At Adda Chak No, 34-EB as is evident from the endorsement made by Allah Rakha, 5.1-Investigating Officer (PW-10) on the statement (EX-PE) made by Habib Ullah complainant (PW-4).
' Since matter was reported to police by the complainant within 45-minutes of the occurrence, therefore, argument advanced by the learned counsel for the appellant questioning the presence of the complainant as well as eye-witness (PW-4 and PW-6) is without force. In a short span of 45- minutes, it was not possible for anyone to procure the attendance of either complainant or eye- witness, if they were not present at the spot.
' Question of deliberation and pre-meditation which was canvassed with half-hearted attempt stands over ruled in view of registration of case with promptness.
' Presence of Habib ullah, complainant and Abdul Rasheed, eyewitness (PW-4 & PW-6) as such at the spot cannot be ruled out.
26. Complainant Habib Ullah (PW-4) and Abdul Rasheed eyewitness (PW-6) with one voice in their direct statements narrated the mode and manner of occurrence, arrival of the appellant while armed with Churri, raising Lalkara and then giving successive Churri blows on the person of Sobedar Said Khan (deceased) hitting on his chest and neck. Though both the witnesses were cross-examined but their credibility could not be shaken in cross-examination. Perusal of replies given in cross-examination clearly reveals that they remained firm and no discrepancy can be pointed out in order to brush aside their evidence. Attempt was made on behalf of appellant to show bias to the complainant regarding false implication of appellant, suggesting animosity of complainant party with others but it remained an exercise in futility. Even otherwise, complainant being real brother of deceased will not let free the real culprit by involving appellant falsely.
27. In view of failure of defence to get any favourable reply in order to question the credibility of the eye-witness and complainant, there can be no two opinions that evidence of both the witnesses disclosing time, place of occurrence, arrival of Abdul Rasheed (PW-6) from village side towards place of occurrence, arrival of appellant at the spot causing injuries with Churri on the person of deceased is worthy of credit and inspires confidence.
28. We are conscious of the argument advanced by the learned counsel for the appellant making an attempt to suggest conflict between medical evidence and ocular account contending that Sobedar Said Khan (deceased) sustained seven injuries as is evident from postmortem report (EX- PB) but in the FIR (EX-PE-1) number of the injuries sustained by the appellant were not mentioned.
' Perusal of FIR (EX-PE-1) though does not suggest exact number of blows but it was specifically alleged that blows were given by appellant on the chest and neck of the deceased. Position would have been different if there was mention of single Churri blow in the FIR.
' Argument as such is mis-conceived and ill-founded.
29. Evidence of complainant and eye-witness (PW-4 & PW-6) disclosing locale of injuries finds support from the post-mortem report and weapon of offence used.
30. Viewed from which ever angle, ocular account furnished by prosecution can be safely believed relied and acted upon.
31. It is the case of prosecution in the FIR (EX-PE-1) that appellant after occurrence while managing to escape threw weapon of offence i.e, Churri at the spot which was taken into custody by Allah Rakha S.I.-Investigating Officer (PW-10) through recovery memo. (EX-PH)
32. Though it was contended that in the recovery memo. (EX-PH) it does not find mentioned that weapon of offence was stained with blood but the argument is without force. Perusal of recovery memo. (EX-PH) clearly reveals that weapon of offence was stained with blood. Factum of recovery of Churri (P-3) taken into custody through recovery memo. (EX-PH) by Allah Rakha S.I.- Investigating Officer. (PW-10) stands proved through evidence of Abdul Rasheed, eye-witness (PW- 6) and Allah Rakha S.I-Investigating Officer (PW-10).
33. Blood stained Churri (P-3) was sent to the office of Chemical Examiner and that of seroiogist and Reports of Chemical Examiner and Seroiogist (EX-PN and EX-PL) establish that weapon of offence was stained with human blood.
34. Pursuant to above, ocular account finds support not only form medical evidence but also from recovery of weapon of offence i.e, Churri, positive reports of Chemical examiner (EX-PN) and serologist (EX-PL).
35. Though we have concluded that prosecution has failed to prove motive set up in the Crime Report (EX-PE-1) but nevertheless failure of the prosecution to prove motive by itself would not be sufficient to put dent in the case of prosecution in order to establish the culpability of appellant, though it can adversely effect the case of prosecution with reference to quantum of punishment which aspect is going to be dealt with later on.
36. We are also conscious that co-accused Waqas Raza was acquitted by learned trial Court against whom there was an allegation of abetment and conspiracy while disbelieving evidence of Habib Ullah, complainant and Abdul Rasheed, eye-witness (PW-4 & PW-6) but evidence of said PWs can be safely believed, relied and acted upon against appellant in order to prove his guilt as same inspires confidence to the extent of appellant, finds corroboration not only from medical evidence but also from the factum of recovery of weapon of offence and positive reports of chemical examiner (EX-PN) as well as serologist (EX-PL).
37. Epitome of above discussion is that prosecution has successfully proved its case beyond shadow of doubt against appellant and as such conviction recorded against the appellant under Section 302(b) of the Code is hereby maintained.
38. Learned counsel for the appellant also submitted arguments with reference to quantum of punishment in view of failure of prosecution to prove motive.
39. In view of discussion made in the early part of the judgment, we also reached to the conclusion that prosecution could not establish motive and as such has to suffer the consequence which can be considered as mitigating circumstance to award lesser punishment.
' We are fortified in our view by law laid down in "Muhammad Yaseen and others v. Muhammad Shafique and others" (1997 SCM R 1527), `Muhammad Ashraf v. The State" (1998 SCM R 1764), "Muhammad Yaqoob alias Qooba v. The State" (1999 SCM R 1138), "Feroze Khan v. The State" (2002 SCM R 99) and "Iftikhar Mehmood and another v. Qaiser Iftikhar and others" (2011 SCM R 1165).
40. Pursuant to above while maintaining conviction of appellant under Section 302(b) of the Code, we convert the sentence of death into life imprisonment under the same provisions of law but maintaining the quantum of compensation to be paid by the appellant under Section 544-A of the Act V of 1898 and sentence in lieu of nonpayment of compensation.
41. The appellant is extended benefit under Section 382-B of the Act Vof 1898.
42. Consequent upon our conclusion modifying the sentence of death, Criminal Appeal No, 1089 of 2010 titled "Imtiaz Hussain v. The State etc." is dismissed but with modification of sentence referred to.
43. Since sentence of death has been converted into life imprisonment, therefore, Death sentence awarded to the appellant is not confirmed and Murder Reference 214 of 2010 is accordingly answered in negative.