Abdul Sami Khan J:- Khyber Hussain appellant was tried by the learned Additional Sessions Judge Attock in case FIR No.234/2009 dated 21.05.2009 for the offence under section 302 PPC, Police Station Hazro, District Attock, who, vide judgment dated 30.09.2010 convicted the appellant under section 302(b) PPC and sentenced him to death. He was also directed to pay compensation of Rs.50,000 /- under section 544-A Cr.P.C. to the legal heirs of the deceased, in default thereof to further undergo six months S.I.
2. Khyber Hussain (appellant) has challenged his conviction and sentence through Criminal Appeal No.158-J of 2010 titled as "Khyber Hussain Vs. The State" and the learned trial Court has sent a reference under section 374 Cr.P.C. for confirmation or otherwise of the death sentence of appellant, which has been numbered as Murder Reference No.133 of 2010. W e propose to decide both these matters together through single judgment.
3. Brief facts of the case as disclosed in FIR (Ex.PF/1) recorded on the statem ent (Ex.PF) of Dr. Abdul Rasheed complainant are that he was resident of village Hameed and was posted as doctor in Hameed Hospital. He had two brothers namely Muhammad Yousaf and Saif-ul-Malook. Saif-ul-Malook was his elder brother , who was married and had three sons namely Khyber Hussain, Ali Asghar and Saeed-ur-Rehman. Khyber Hussain was the eldest son of Saif-ulMalook. He was mentally retarded person and was under treatment. For the last 3/4 days prior to the occurrence which took place on 21.05.2009, Khyber Hussain did not come to home, therefore, the complainant alongwith Saif-ul-Malook and Ali Asghar went for his search. At about 12:00 noon, when they reached at Dhok Ratta, Khyber Hussain came in front of them from a street.
Saif-ul-Malook asked Khyber Hussain to come with him, but he refused and started scuffling with him. When Saif-ul-Malook tried to take Khyber Hussain accused to his house forcibly , the accused took out "chhuri" from his dub and inflicted two successive blows on abdomen and chest of Saif-ul-Malook, who fell down on the ground while the accused fled away from the spot. The complainant alongwith Ali Asghar were shifting Saif-ul-Malook to hospital, but he succumbed to the injuries in the way .
4. After registration of FIR, investigation of the case was conducted by Muhammad Awais Akram S.I. (PW-9) and after completion of investigation, report under section 173 Cr.P.C. was submitte d against the accused. At the commencement of trial, after observing legal formalities as provided under the Code of Criminal Procedure, 1898, charge was framed against the accused on 11.05.2010 to which he pleaded not guilty and claimed trial, hence, the prosecution was asked to produce evidence. To substantiate its version at the trial, the prosecution produc ed nine witnesses. Ocular account was furnished by Ali Asghar eye witness (PW-6) and Dr.Abdul Rasheed complainant (PW-7). Masood Ahmad constable testified about the recovery of weapon of offence "chhuri" from the appellant, Muhammad Awais Akram S.I. (PW-9) stated about different steps taken by him during the investigation and Dr.Muhammad Tufail (PW-1) conducted postmortem examination on the dead body of the decea sed. The remaining prosecution witnesses, more or less, are formal in nature.
After placing on record the reports of Chemical Examiner (Ex.PJ and Ex.PJ/1) and that of Serologist (Ex.PK), the prosecution closed its evidence.
5. After completion of prosecution evidence, the learned trial court went on to record the statement of appellant under section 342 Cr.P.C. wherein he professed his innocence and pleaded false implication in the case. He neither recorded his statement on oath as provided under section 340(2) Cr.P.C. in disproof of the allegations leveled against him by the prosecution nor produced any witness in his defence.
6. Upon culmination of the trial, after thrashing entire evidence and evaluating the arguments advanced by learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellant as mentioned in paragraph No.1 of this judgment.
7. Learned defence counsel submitted that the prosecution has miserably failed to bring the guilt of the appellant to the hilt, hence, he deserves acquittal. On the other hand, learned Deputy Prosecutor General contended that the prosecution has amply proved the case against the appellant beyond any reasonable doubt, the impugned judgment does not call for any interference by this Court, so the conviction and sentence of the appellant be maintained, his appeal be dismissed and the murder reference be answered in af firmative.
8. We have considered the arguments advanced by learned defence counsel as well as learned Law Officer and have also gone through the record with their able assistance. Before discussing the prosecution case in the light of material available on the surface of record, we, first, would like to determine the correctness of plea taken by the appellant in his defence. It has been observed by us that at the time of recording statement under sectio n 342 Cr.P.C. and while answering to a question "why this case against you and why the PWs have deposed against you?" the appellant has stated as below:- "I am innocent. I am a mental patient. Due to this I am unable to realize/understand anything. I have been involved in this case falsely . Due to my disease my uncle and brothers have involved me in this case so as to get rid from me."
During arguments, learned defence counsel has drawn our attention to one of the opening sentences of FIR (Ex.PF/1) wherein it is mentioned that the appellant was suffering from mental distraction. In this regard, we have observed that the appellant was arrested by Muhammad Awais Akram S.I./I.O. (PW-9) on the very next day of occurrence i.e. 22.05.2009 and at the time of his arrest, his first version was that he was feeling mental stress due to his unemployment and also because nobody in the house including his father was giving any importance to him rather his father/deceased had beaten him 3/4 days prior to the occurrence and had kicked him out of the house. During the whole investigation, it was never the version of the appellant that he was mentally disabled person. Even otherwise, we have observed that the learned trial court has adopted utmost care and caution to determine as to whether appellant was suffering from any mental disease. In this regard, the matter was referred on the appli cation of the appellant to the Medical Super intendent, Benazir Bhutto Hospital Rawalpindi, who vide letter dated 20.03.2010 reported as under:- "Mr. Khyber Hussain was admitted at the Institute of Psychiatry , Benazir Bhutto Hospital, Rawalpindi on 25.02.2010 and was discharged on 26.02.2010. During his stay he was examined and evaluated by a team of psychiatrists and Psychologists. In my opinion, the patient on current mental state examination does not have any mental illness though he was limited intellect."
Furthermore, charge against the appellant was framed by the learned trial Court on 11.05.2010 and his statement under section 342 Cr.P.C. was recorded on 27.09.2010 and on both occasions, the appellant gave rational answers to the questions put by the learned trial Court to him. These facts clearly show that the appellant had no mental incapacity to adjudge his acts at the time of occurrence. Even otherwise, there is no denial of the fact that as soon as the occurrence took place, the appellant escaped from the scene of occurrence. If for the sake of argume nt, he was mentally incapacitated person, then what was the reason for his fleeing away from the spot immediately after the incident. The learned trial court, therefore, was quite justified in treating the appellant as normal person and as a matter of fact, plea raised by the appellant in his defence was an afterthought ef fort in order to take undue benefit of a sentence of FIR under legal advice.
9. We have observed that the matter was reported to the police by Dr. Abdul Rash eed complainant (PW-7) within just one and half hours of the occurrence. Such a short span of time in reporting the matter to the police excludes any chance of deliberation, consultation or concoction of any story by the complainant so as to falsely implicate the appellant in a case of heinous nature. The statements of Dr.Abdul Rasheed complainant (PW-7) and Ali Asghar (PW-6) are consistent on each and every material as well as minor aspect of the case and their presence at the spot at the time of occurrence is duly proved during the trial. Even the defence has not disputed their presence while conducting cross-examination on them. Both the eye witnesses have fully supported the prosecution version, they stood firm and their veracity could not be shaken.
Despite that they were subjected to cross-examinations, nothing could be brought out from their mouths to create doubt in their evidence. The names of the eye-witnesses and the role of accused/appellant for causing injuries to the deceased have been mentioned in the first information report, which got support from the medical evidence furnished by Dr. Muhammad Tufail (PW-1). In these circumstances, we have no option except to hold that both the PWs had witnessed the incident and their testimonies are, therefore, believed by us.
10. Khyber Hussain appellant is the real brother of Ali Asghar eye witness (PW-6) and paternal nephew of Dr. Abdul Rasheed (PW-7). It was a daylight occurrence and the parties were well known to each other , so there is no chance of mistaken identity of the appellant. Similarly , keeping in view the relationship of the eye witnesses with the deceased as well as the appellant, it cannot be presumed that they had falsely implicated him in this case only to get rid of him.
11. The appellant is named in FIR (Ex.PF/1) with specific role of causing injuries with "chhuri" on chest and abdomen of the deceased and this role is borne out from his postmortem examination report (Ex.P A). We have perused the postmortem report, injury statement and inquest report of the deceased, which show that the injuries on the dead body of the deceased were of sharp edged weapon. During arguments, learned defence counsel could not point out any infirmity , inconsistency or contradiction between the ocular account of Dr.Abdul Rasheed complainant (PW-7), Ali Asghar eye witness (PW-6) and medical evidence so as to create even a tiny doubt in the prosecution case. Thus, the medical evidence in the shape of statement of Dr.Muhammad Tufail (PW-1) and postmortem examination report (Ex.PA) has also rendered emphatic support to the case of prosecution.
12. As far as the recovery of weapon of offence is concerned, we have observed that the appellant was arrested on the very next day of occurrence and at the time of his arrest, a blood stained "chhuri" (P3) was recovered from his possession, the same was sent to the office of Chemical Examiner and thereafter to Serologist, so the positive reports (Ex.PJ/1) (Ex.PK) of these two incumbents further strengthen the case of prosecution against the appellant.
13. No motive for committing murder of Saif-ul-Malook deceased by his own son/appellant has been brought on record by the prosecution and the only reason behind the occurrence came to the surface of record through first version of the appellant that he was being treated harshly by his father/deceased and was kicked out from the house 3/4 days prior to the occurrence. Be that as it may, nondisclosure of motive by the prosecution itself is not sufficient to demolish its case.
Furthermore, it is not necessary for the prosecution to allege motive in each and every case, because, motive is a state of mind of an accused, which remains secret and concealed in his mind till its exposure through spoken words or actions.
14. After minute and careful scrutiny of the record, prosecution evidence and the defence version, we have come a stalwart conclusion that the prosecution has been quite successful to prove its case against Khyber Hussain appellant through the statements of PW-7 Dr. Abdul Rasheed (complainant) and PW-6 Ali Asghar eye witness, duly supported by medical evidence in the shape of statement of Dr.Muhammad Tufail (PW-1), postmortem examination report (Ex.P A) and recovery of weapon of offence "chhuri" (P3) to maintain his conviction on the murder charge of Saiful-Malook deceased which is hereby maintained. However at the same time, our judicial mind is disturbed to maintain death sentence of the appellant, because, there are certain extenuating circumstances which suggest that it is not a case of capital sentence. We have observed that it was not a preplanned incident rather it is established from the contents of FIR (Ex.PF/1) as well as testimonies of witnesses of ocular account that the occurrence took place at the spur of moment and there was no premeditation on the part of appellant to commit murder of his real father/deceased. This mitigating fact alone is sufficient to extend benefit to the appellant in respect of quantum of his sentence.
15. We would also like to observe here that the accused is entitled for the benefit of every extenuating circumstance while deciding question of his sentence. Reliance is placed upon "Mir Muhammad alias Miro v. The State" (2009 SCMR 1188). In another judgment reported as "Ansar Ahmad Khan Barki v. The State and another" (1993 SCMR 1660 ), the Hon'ble Supreme Court of Pakistan has held that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to an accused for awarding normal penalty of death. We have also fortified our view qua the quantum of sentence from the case reported as "Sharafat Ali Khan v. The State" (2010 SCMR 1205 ), wherein the Hon'ble Supreme Court has observed as under:- "In Muhammad Riaz and another v. The State (2007 SCMR 1413 ), while considering the penalty for an act of commission of qatl-e-amd it was observed "No doubt, normal penalty for an act of commission of qatl-e-amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case.
Reference in the context may also be made to Iftikhar Ahmad Khan vs. Asghar Khan and another ( 2009 SCMR 502 )."
The Hon'ble Supreme Court of Pakistan in another judgment reported as "Haji Muhammad Sadiq v. Liaquat Ali and others"
(2014 SCMR 1034 ) has held as under:- "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 obliga tion of the Judge in awarding one or the other sentence to apply his 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 asses sing the evidence, facts and circumstances of a particular murder case, under which it was committed.
In any case, if a single doubt or ground is available, creating reasonable doubt in the mind of Court/Judge to award death penalty or life imprisonment, it would be sufficient circumstances to adopt alternative course by awarding life imprisonment instead of death sentence."
16. For what has been discussed abov e, taking guidance from the afore-quoted pronouncements of Hon'ble Supreme Court of Pakistan, the sentence of death awarded to Khyber Hussain appellant for the murder of Saif-ul-Malook deceased is converted into imprisonment for life under Section 302(b) PPC. The amount of compensation of Rs.50,000/- under Section 544-A Cr.P.C. as ordered by the learned trial Court and imprisonment of six months S.I. in default thereof shall remain intact. The benefit of Section 382-B Cr .P.C. shall, however , be extended to the appellant.
17. With the above modification in the sentence of the appellant, this appeal stands dismissed . Death sentence is not confirmed and Murder Reference is answered in negative.