1. ' AFTAB AHMED GORAR, J.---Through this Cr. Jail Appeal Appellant Jan Mohammad alias Janoo son of Mohammad Yaseen has impugned judgment dated 02.02.2011 passed by learned IVth Additional Sessions Judge, Karachi South in Sessions Case No, 641 of 2006, whereby he has been convicted under section 302(a), P.P.C. And sentenced to death as Qisas, subject to confirmation by this Court, whereas co-accused Shah Jehan son of Mohammad Rahim has been convicted under section 302(c)/34, P.P.C. And sentenced to undergo R.I. For ten (10) years with extension of benefit of section 382-B, Cr.P.C.
2. ' Precisely, the facts of the prosecution case are that complainant Mohammad Yaqoob lodged FIR No,272 of 2006 on 13.09.2006 at 0015 hours stating therein that he resides on the address mentioned in the FIR along with his family and Shahnawaz alias Bhutto, who was his younger brother, was also residing with his family near his house and was running a shop of selling grass behind Lyari General Hospital. Jan Mohammad alias Janoo son of Mohammad Yaseen, the present appellant, had demanded share from him in the said shop which was refused by his deceased brother which resulted in a dispute five months ago and enmity developed between them. On 12.09.2006 at about 8.45 p.m. Complainant was present at home when Ayaz, son of his brother, came running at his house and informed him that his father was shot by three persons. The complainant further stated that on his reaching the place of incident, Ayaz and Mohammad Naseem son of Pir Mohammad disclosed that three boys namely, Jan Mohammad alias Janoo, Shah Jehan son of Mohammad Rahim and one unknown person came on motorcycle and made firing upon Shahnawaz due to which he fell down and then all the three boys fled away on motorcycle. Thereafter deceased's relatives shifted the injured to Civil Hospital in a Suzuki where he succumbed to his injuries.
3. ' During the course of investigation accused Shah Jehan was arrested and after completing investigation challan was submitted in the court wherein accused Jan Mohammad and another unknown accused were shown as absconders.
4. ' Charge was framed against accused Shah Jehan to which he pleaded not guilty and claimed to be tried. Subsequently accused Jan Mohammad was also arrested.
5. Amended charge was framed against both the accused, to which they pleaded not guilty and claimed trail.
6. In order to prove the charge against the accused, prosecution examined PW-01/MLO Dr. Abdul Jabbar Memon (Ex.07) who produced medico-legal certificate of deceased Shahnawaz (Ex.07/A), PW-02/SIP Altaf Hussain (Ex.08) who produced statement under section 154, Cr.P.C. of the complainant and FIR (Ex.08/A and 08/B) memo of inspection of dead body and inquest report (Ex.08/C and 08/D), receipt of handing over the dead body and Roznamcha Entry (Ex.08/E and 08/F), PW-03/ASIP Mohammad Idrees (Ex.11/A). PW-04 Nadir Hussain (Ex.13) who is alos eye-witness of the incident and produced memo of securing the bloodstained clothes of deceased (Ex.07/A)
7. PW-05/Complainant Yaqoob (Ex.09) who produced inquest report and memo of site inspection/securing of empties (Ex.09/A and 09/B) and memo arrest of accused Shah Jehan (Ex.09/C), PW-06, Ayaz (Ex.10) who is son of the deceased and eye-witness of the incident, PW-07 Inspector Shabbir Hussain (Ex.14), Investigating Officer of the case, who produced FSL report, chemical report, sketch of site, photographs of place of incident and other relevant documents (Ex.14/A to 14/F). There after, the DDPP appearing for the State closed prosecution side statement (Ex.15).
8. Statement of the accused under section 342, Cr.P.C. were recorded at Ex.16 and 17 in which they denied the prosecution allegations leveled against them and claimed innocence. Appellant Jan Mohammad stated that police did not arrest him in this case but he was arrested in a case under section 13-(d), Arms Ordinance where in he has been acquitted. He further stated that prosecution did not produce memo of his arrest in this case. However, neither both the accused examined themselves on oath no produced any witness in their defence.
9. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, learned IVth Additional Sessions Judge, Karachi South vide impugned judgment convicted and sentenced the accused as stated above. Against the said judgment appellant Jan Mohammad has preferred the instant appeal whereas accused Shahjehan has not filed any appeal.
10. We have heard leaned counsel for appellant as well as learned A.P.G. appearing for the state and perused the evidence recorded by the trial Court.
11. Learned counsel for the appellant has contended that the appellant has been falsely involved in the present case; the there was delay in lodging of FIR and possibility of false implication of the accused could bot be ruled out; that no postmortem examination of the deceased was conducted and without conducting the postmortem examination dead body was handed over to the relatives of the deceased. It es further contended prosecution witnessed are close relatives of the deceased hence they are interested witnesses therefore no reliance could be placed on their evidence particularly for awarding death sentence and furthermore there are meterial contradictions in their evidence; that bloodstained earth was not collected form the spot by the I.O. and so also the report of the chemical examiner regarding bloodstained clothes was not produced before the trial court.
12. It is argued that the complainant was not an eye-witness of incident and his evidence was hearsay. It is submitted that although there was allegation that 7/8 fires were made by the accused but the police secured only four empties of 9 MM pistol from the spot which were sealed on the next day of incident. Lastly, it is contended that there was dispute over land between complainant Yaqoob and the appellant due to which complainant has falsely involved the appellant in the case. According to defence counsel, prosecution has failed to prove the case against the appellant/accused beyond reasonable doubt benefit whereof mist be extended to the accused. In support of his contentions he relied upon the case-law reported as Imran Ashraf and 7 others v. The State (2001 SCM R 424), Mohammad Ramzan and others v. The State (2009 PCr.LJ 533) and Nazim Khan and 2 others v. The State (1984 SCM R 1092).
13. Conversely, learned A.P.G. Appearing for the State, while supporting the impugned judgment, contended that the incident was witnessed by the eyewitnesses; that although the prosecution witnesses are related to the deceased but they were natural witnesses and their evidence was confidence inspiring; that although postmortem examination was not conducted but this fact does not establish that it was not an unnatural death. Learned APG, however, admitted that the report of chemical examiner regarding bloodstained clothes was not produced before the trial court. He prayed for dismissal of the appeal and maintaining the impugned judgment. In support of his contentions he relied upon the ease-law reported as Mst. Nazakat v. Hazrat Jaml and another (PLD 2007 SC 453), Amal Sherin and another v. The State PLD 2004 SC 371), Mohammad Akbar and another v. The State (PLD 2004 SC 44), Federal Government Ministry of Defence v. Sepoy Liaqat Ali (2004 SCM R 1676), Bashir Ahmed v. The State (2004 PCr.LJ 1326) and Salam alias Toor Jan v. The State (2013 PCr.LJ 1461).
14. ' We have gone through the evidence of the prosecution witnesses recorded by the trial Court. PW Ayaz was eye-witness of the incident. In his evidence he deposed that on 12.09.2006 at about 8.00 or 8.30 p.m. He along with Qadir, Nadir and his father Shah Nawaz was sitting in the shop of grass when somebody knocked the door of the shop, he opened the door of shop and saw that two persons were standing and one was sitting on a motorcycle. Both the accused asked him to call his father. P.W. Ayaz told his father that Jan Mohammad and Shahjehan were calling him. His father (deceased) went outside the shop and P.W. Ayaz, Qadir and Nadir also followed him outside the shop. At that time he has deposed that 'accused Janoo asked P.W. Ayaz, Qadir and Nadir to move aside, disclosing that he would kill his father Shah Nawaz. Thereafter, accused Jan Mohammad took out pistol and fired seven or eight fires at his father Shah Nawaz who fell down on the ground.
15. Thereafter, other people also gathered there and his father was taken to hospital in the Suzuki.
16. ' PW Nadir disposed that on 12.09.2006 he had gone with Abdul Qadir at about 8.30 p.m. For purchasing grass from the shop of deceased Shah Nawaz, situated near Ranghiwara. They were sitting inside the shop, they heard knocking at the gate and Ayaz went to see outside. After a short while, Ayaz came back and informed that Janoo and Shahjehan along with another person had come at the gate.
17. ' Thereafter, Shah Nawaz went outside the gate and they also followed him. When they were standing on the gate, accused Janoo told that he would not spare Shah Nawaz alias Bhutto and he also asked them to move aside and then he deposed that accused Jan Mohammad alias Janoo made seven/eight bullet fires upon Shah Nawaz whereupon Shah Nawaz fell down and all the accused fled away on the motorcycle. He further deposed that Abdul Qadir told Ayaz to inform .The incident to his uncle Yaqoob and on getting such information Yaqoob came there. They shifted the dead body of the deceased to the hospital in a Suzuki. He further deposed that on 19.09.2006 he along with Abdul Qadir and Lala Yagoob took the clothes of the deceased to police station which the deceased was wearing at the time of incident. The clothes consisted of one banyan, handkerchief, one small towel, a pair of Shalwar Kameez with waste stripe. I.O. Sealed the said articles in his presence and prepared such memo in presence of Abdul Qadir. He identified both the accused in court. He pinpointed accused Jan Mohammad present in court to be the person who fired upon the deceased.
18. ' PW. Yaqoob is the complainant and brother of the deceased. He deposed that on 12.09.2006 at about 2045 hours, he was present in his house when Ayaz son of deceased Shah Nawaz came running at his house and disclosed that three persons namely Jan Mohammad, Shahjehan and one unidentified person have shot dead his father Shah Nawaz, whereupon he reached the place of incident where he came to know that deceased was taken to hospital where doctor informed him that Shah Nawaz had died. Thereafter, they brought the dead body without postmortem. He further deposed that police reached at his house and prepared inquest report of deceased. He further deposed that thereafter, SIP Altaf Hussain recorded his statement under section 154, Cr.P.C.
19. He further deposed that police visited the place of incident on the next date and secured four empties of 9 MM pistol, 10 live bullets and one lead of bullet and sealed the same on' the spot and prepared such memo. He further deposed that police arrested accused Shah Jehan from his house in his presence and in presence of one Mohammad Naseem and prepared such memo on the spot. He further deposed that I.O. Shabbir recorded his 161, Cr.P.C. Statement at P.S. Chakiwara.
20. He identified accused in court.
21. ' The Investigating. Officer of the case namely, Inspector Shabbir deposed that on.
22. 13.09.2006 he was posted at SIP at P.S. Chakwiara in the investigation branch when he received the investigation of this case. He visited place of incident, it was a shop of grass and prepared such memo and rough sketch. He further deposed that he had secured four empties of .9 MM Pistol, live bullets and one projectile from the place of incident. He sent the recovered incriminating articles to the FSL for report. He also got three photographs of place of incident.
23. From perusal of evidence it transpired that eye-witnesses namely, Ayaz and Nadir during cross- examination remained firmed on all major particulars of case i.e, date, time and place of occurrence. PWs had no enmity with accused Jan Mohammad to falsely implicated him in the present case. As regards the contention of the learned counsel for the appellant that the complainant and the eye-witness Ayaz are closely related to the deceased, thus they are interested witnesses and their evidence is not worth-reliance; it may be observed that mere relationship with the deceased is no criteria to discard their testimony and they could not be termed as interested witnesses. In the case reported as Amal Sherin and another v. The State (PLD 2004 SC 371) the Honourable Supreme Court held that mere relationship of witnesses with the deceased would not detract their veracity who had absolutely no motive of their own to involve the accused. In the case reported as Haji v. The State (2010 SCM R 650) it was held by the Honourable Supreme Court that relationship of ocular witnesses with the deceased, ipso facto, would not reflect adversely against their veracity, in the absence of any motive on their part for false involvement of accused in the case. In the case reported as Raqib Khan v. The State (2000 SCM R 163) Honourable Supreme Court held as under:- "The contention that a witness who is related to the deceased is an interested witness, has since long been discarded by this Court. It is settled proposition of law by now that interested witness is the one who has an animus for false charge. Mere relationship of a witness to the deceased is not enough of a reason to discard his testimony because such a witness is necessarily not an interested witness in the true sense of the term. This Court has gone to the extent that even evidence of interested witness is always not discarded. Reference may be made to the law laid down by this Court in Niaz v. State (PLD 1960 SC 387) which was reiterated again in Nazir Hussain v.
24. State (PLD 1965 SC 188). In Aslam and another v. The State (1997 SCMR 1284), a Full Bench of this Court had reiterated the law on this score that, "in the final analysis, it is neither the relationship of the witnesses with the deceased or that of the P. Ws inter se nor in the appropriate cases even their being the interested witnesses that provided an ultimate guidance for according credence to their testimony. It is ultimately inherent worth of evidence of a witness that determines his reliability".
25. In view of above, the contention of the learned counsel for the appellant to discard the evidence of P.W. Ayaz and complainant Yagoob, being close relatives of the deceased, has no force as their evidence is in consonance with each other and so also with the evidence of other prosecution witnesses and we do not find any justification to disbelieve the same. The case-law relied upon by the learned counsel for the appellant are distinguishable as the facts of the cited cases and that of the instant case are different.
26. ' As regards to another contention of defence counsel that postmortem examination of deceased was not conducted, Dr. Abdul Jabbar has deposed that dead body of one Bhutto was brought in hospital but same was taken away by his relatives without postmortem examination, we hold that failure to conduct postmortem examination would not demolish the prosecution case as held by the Honourable Supreme Court in the case of Abdur Rehman v. The State (1998 SCM R 1778) wherein the apex Court held as under:- ' "It may be seen that case-law relied upon by learned counsel for parties has been discussed above. We have thoroughly compared and scrutinized the ratio decidendi in afore-quoted reported judgments and relative law. We cannot subscribe to the observations which may suggest that failure to conduct post-mortem would demolish the prosecution case. Obviously there would be numerous situations when post-mortem may not even be conducted. In various parts of the country on account of longstanding customs and established traditions tribesmen do not allow post-mortem of the deceased. Thus, keeping in view all the relevant factors and law, we are persuaded to hold that in cases where prosecution through convincing evidence can establish that death was immediate, proximate and direct cause of injuries sustained without being any element of negligence or other interventions, the non-performance of post-mortem would not be fatal.
27. Moreover, unnatural death of deceased and nature of injuries have not been disputed by defence counsel.
28. ' It is contended that it is not clear why postmortem examination was not conducted and dead body was taken by relatives of the deceased. It is submitted that motive has not been proved and motive remained shrouded in mystery, it is argued it is not clear what happened immediately before incident as such there are mitigating circumstances in the case. Reliance has been placed upon the case of Mohammad Attique v. The State (2011SCMR 1378), relevant portion is reproduced as under:- "8. P.W.5, Firdous Ahmed who is the complainant is real Chachazad of deceased Nazim while P.W.
29. Mohamamd Azam is the real brother of above named deceased. In the given circumstances, the evidence of the above P.Ws. Has to be appreciated with due care and caution and needs strong corroboration. Churri was secured on 4-9-1995 but was sent to the chemical examiner on 7-9-1995 which was received by him on 13-9-1995.
9. It has come in the evidence through the recovery witness that the churri secured from the possession of the appellant was stained with blood. The motive of pre-occurrence altercation as set up by the prosecution for causing the death of Mohammad Duraiz Khan does not appear to be strong enough. One of the prosecution witnesses, namely, Ahmed Khan was given up by the prosecution.
10. The incident took place in the year 1995. The appellant was arrested on 2-9-1995 and is Incarcerated since then. Understandably he is languishing in the death cell as a condemned prisoner since the date of trial Court judgment i.e, 29-4-1999.
11. Indeed the above narrated facts demonstrate that the extenuating circumstances do exist for awarding lesser penalty."
30. ' In the case of Dilawar Hussain v. The State (2013 SCM R 1582) a Full Bench of Honourable Supreme Court held as under: ' "It has neither been the mandate of law nor the dictates of this Court as to what quantum of mitigation is required for awarding imprisonment for life rather even an iota towards the mitigation is sufficient to justify the lesser sentence. According to our estimation even a single stance providing mitigation or extenuating circumstance would be sufficient to award lesser punishment as an abundant caution. In such circumstances, if the court is satisfied that there are certain reasons due to which death sentence is not warranted, the court has no other option but to impose second sentence of imprisonment for life while extending benefit of the extenuating circumstances to the convict in a just and fair manner."
31. ' In the case of Ghulam Mohy-udDin v. State reported in 2014 SCM R 1034 following observations made by the apex Court: ' "A single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment. No clear guideline, in this regard can be laid down because facts and 'circumstances of one case differ from the other, however, it becomes the essential obligation of the Judge in. Awarding one or the other sentence to apply judicial mind with a deep thought to the facts of a particular case. If the Judge/Judges entertain some doubt, albeit not sufficient for acquittal., judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows. So it is better to respect the human life, as far as possible, rather to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed."
32. ' In the case of Hassan v. State reported in PLD 2013 SC 793 Honourable Supreme Court held as under: ' "In a case lacking malice aforethought on the part of the accused pariy and in a case of an occurrence developing at the spur of the moment this Court, depending upon the circumstances of the case, generally looks at the matter of sentence with some degree of empathy and consideration.
33. ' Following the above quoted three judgments, the Honourable Supreme Court in a recent case of Mohammad Sarwar Saru v. The State (2016 SCM R 210) reduced the death sentence to life imprisonment on the ground that the appellant/accused has almost served out more than life imprisonment and that the motive has not been proved.
34. Besides, in the case reported as Abid Hussain v. The State (PLD 1994 SC 641) Honourable Supreme Court converted the death sentence awarded to the accused to life imprisonment as it had appeared in evidence that harsh words were exchanged between the accused and the deceased before the act of firing. In Naubahar v. The State (1999 SCM R 637) the apex Court came to the conclusion that the motive remained shrouded in mystery and what had immediately transpired before the occurrence was not known, therefore, it was held to be not a fit case for awarding extreme penalty of death. In this connection reference can also be made to the cases reported as Abid Ali and others v. The State (1995 PCr.LJ 834 [Lahore]), Mohammad Ashraf Khan Tareen v. The State (1995 PCr.LJ 313 [Peshawar"), Khalid alias Khaldi v. The State (2003 PCr.LJ 638 [Lahore]) and Ehsan Sharif v. The State (2005 YLR 639 [Lahore]).
35. ' In the present case motive remained shrouded in mystery. It is not certain what happened immediately before the incident. As per FIR complainant stated that appellant demanded share in the shop purchased by the deceased but the complainant refused. However, motive as set up by prosecution does not appear to be strong enough.
36. ' Besides, it is not clear as to why relatives of deceased took dead body without postmortem examination. As per evidence, Dr. Abdul Jabbar received the dead body of the deceased but relatives of the deceased forcibly took away the dead body without postmortem examination and such information was given by him to police and the police prepared the Danishnama as well as mashirnama of the dead body at the house of the deceased. It has not come on record as to why the relatives of the deceased forcibly took away the dead body from the hospital without postmortem. Report of chemical examiner regarding bloodstained clothes of deceased has not been produced. Moreover, no crime weapon was recovered from the appellant. According to prosecution case, 7/8 fires were made but only 04 empties were collected from place of incident, prosecution has no explanation for such ambiguity. These are the mitigating circumstances in this case for lesser F penalty. We have noticed that appellant Jan Mohammad was convicted under section 302(a), P.P.C. And sentenced to death as Qisas. Conviction in the circumstances of case under section 302(a), P.P.C. Was erroneous and appellant named above was liable to conviction under section 302(b), P.P.C. As Tazir.
37. ' In view of above stated circumstances, we reduce the death sentence awarded to the appellant to imprisonment for life and decline to confirm the death penalty. Benefit of G section 382-B, Cr.P.C.
38. Shall be extended to the appellant. With this modification in the sentence, the appeal is dismissed.
39. The confirmation reference is answered in negative.