GHULAM MUSTAFA MUGHAL, C.J.---The captioned appeals arise out of a common judgment, hence, were heard together and are decided as such through this single judgment.
Ghulam Murtaza, convict/appellant, has challenged the legality and correctness of judgment and order passed by the learned District Court of Criminal Jurisdiction, Poonch/Rawalakot on 30.11.2012, whereby, he has been awarded following sentences:-
1. On proving the charge of murder of Gulzar Rafique son of Muhammad Rafique caste Sudhan resident of Koyian, he has been sentenced to life imprisonment under section 302-B, A.P.C.
2. He has been further directed to pay Rs,5,000,00/- as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., failing which, he has to undergo six months simple imprisonment.
3. Five years simple imprisonment along with Rs,5000/- fine under. Section 324, A.P.C. For causing injury to Muhammad Pervaiz, P.W. In case of non-payment of fine, he has to undergo two months' simple imprisonment.
4. One year simple imprisonment as well as Rs,10,000/- compensation as Daman for causing injury to the aforesaid P.W. Under section 337-F(ii) of A.P.C.
5. One year simple imprisonment as well as Rs,5,000/- as fine under section 13/20/65, A.A. In case of default in payment, he has to undergo two months' simple imprisonment. It has been ordered by the Court that sentences will start consecutively. The benefit of section 382-B has also been extended to the convict.
Muhammad Idrees, complainant, has filed the counter appeal against the judgment dated 30.11.2012, praying therein, that sentenced awarded to the convict may be enhanced and he may be sentenced to punishment of Qisas or in alternate sentenced to death as Tazeer. It is further requested that sentences of Tazeer and Daman awarded to the convict under sections 324/337- F(ii), A.P.C. May also be enhanced.
As per prosecution case, unfortunate incident took place on 31.10.2010 at about 3:00 p.m. Which claimed the life of Gulzar Rafique son of Muhammad Rafique Caste Sudhan resident of Koyian. The same was reported by Muhammad Idrees son of Muhammad Arif caste Sudhan, complainant, herein, at Police Station, Rawalakot on 31.10.2010 at about 5:45 p.m. It was stated that on the fateful day, the complainant was at home and at about 3:00 p.m. He was informed by Muhammad Pervaiz son of Muhammad Afsar through a telephonic call that Gulzar Rafique son of Muhammad Rafique was sitting along with him at his shop at Khaigala Bazar. In the meantime, a car which was being driven by Ghulam Murtaza son of Muhammad Hayat caste Sudhan resident of Koyian came.Over there and stopped. He waived his pistol started firing and shouted that he will not leave both of them alive. Due to his firing Gulzar Rafique received injuries on his head and other parts of the body, whereas Muhammad Pervaiz also received firearm injury on his left leg. It was further stated that Gulzar Rafique was seriously injured who was taken to hospital. The complainant was also asked to reach there. The complainant reached, the hospital and found his brother-in-law dead.
He was told by Muhammad Pervaiz that the occurrence was witnessed by various people, who were present at Khaigala Bazar. The motive behind the occurrence was that deceased wanted to marry with the sister of Ghulam Murtaza, convict which could not take place and due to this grudge aforesaid convict committed his murder. The police after registering the case got conducted the postmortem report of the deceased and secured blood from the spot and started investigation.
After completion of investigation, challan was presented before District Court of Criminal Jurisdiction, Rawalakot on 03.01.2011. The statement of convict was recorded under section 242 of Cr.P.C. On 10.11.2011. He pleaded not guilty, whereupon, the trial Court asked the prosecution to lead evidence in support of the charge. The prosecution examined Muhammad Idrees, complainant, Muhammad Aslam, Muhammad Pervaiz, Muhammad Ishaq, Rizwan Idrees, Shakeel Ahmed, Baber Khalil, Dr. Mumtaz Ahmed CMO, Dr. Abdullah, Kh. Zameer Ahmed, Patwari, Muhammad Akram, ASI, Ashfaq Hussain, Constable, Muhammad Naseem Rathore, SI, Zahid Hussain Bukhari, SI, Pervaiz Hameed, Inspector/SHO, Muhammad Ijaz Khan, Inspector and Muhammad Ishaq Alvi, DSP. After recording the prosecution evidence, the statement of the convict under section 342 of Cr.P.C. Was recorded. He again pleaded not guilty. The convict neither led evidence nor appeared as a witness.
At the conclusion of the trial and after hearing the arguments of the parties, the learned trial Court vide judgment and order dated 30.11.2012 sentenced the convict as mentioned herein above. As observed earlier, the convict has challenged the legality of his sentence, whereas, counter appeal has been filed by the complainant for enhancement of sentence.
Sardar Shamshad Hussain Khan, the learned Advocate appearing for Ghulam Murtaza, convict- appellant, contended that prosecution has miserably failed to prove the murder of Gulzar Rafique by the convict who was involved in the offence due to enmity. The learned Advocate argued that in fact the incident took place in the shop of Muhammad Pervaiz, as a result of altercation between deceased and P.W. Muhammad Pervaiz, who were partners in some business, whereas the convict was involved on account of enmity. The learned Advocate argued that there is no direct evidence against the convict and Muhammad Aslam, P.W is also not an eye-witness of the occurrence, whereas, fact of the matter is that he was involved in the case by the complainant side in connivance with the local police. The learned Advocate further submitted that evidence of so- called prosecution witnesses is in direct conflict with the medical evidence and keeping in view the nature of injury and manner of occurrence, it is the medical evidence which is to be believed in the circumstances of this case. The learned Advocate Contended that recovery of weapon of offence from the convict was also fake as the alleged recovery cannot be believed in view of the reports of Forensic Science Laboratory and Serologist because the weapon of offence confiscated by the police was not sent to the arm's experts and it was a different pistol, which in fact, was found in the shop and confiscated by the police from there, which fact strengthen the defence point of view that incident took place as a result of some altercation between Muhammad Pervaiz and deceased in the shop. The learned Advocate contended that evidence of PW's cannot be believed for having been recorded after considerable delay and no plausible explanation was given by the prosecution in this regard. The learned Advocate argued that it was case of no evidence because the prosecution failed to produce best independent and impartial available evidence in support of the charge despite its availability on the place of occurrence. The learned Advocate argued that the trial Court has misdirected itself while convicting the accused despite the fact that witnesses brought before the Court were neither "Adil" nor "truthful", hence, submitted for acquittal of convict- appellant. In support of his submissions, the learned Advocate placed reliance on the following case law:-
1. Asia Bibi and 5 others v. Ghazanfar Ali and 3 others, [2005 SCR 1]
2. Barkat Ali v. Muhammad Asif and others, [2007 SCMR 1812];
3. Muhammad Sharif and another v. The State,. [1990 SCMR 104];
4. Pehlwan v. The Crown, [1969 SCMR 641];
5. Munir Ahmed v. The State, [2004 YLR 2016];
6. Ilaji Rab Nawaz v. Sikandar Zulqaranain and 07 others, [1998 SCMR 25];
7. Nasreen Bibi v. The State [2009 PCr.LJ 619]
8. Qudratullah v. Maisam and another, [2005 PCr.LJ 1667];
9. Major (R) Nadir Ali v. The State, [2003 YLR 761];
10. Muhammad Yousaf v. Tariq Mehmood and another and Tariq Mehmood v. The State and another, [2008 SCR 1]
11. Jani and another v. The State, [1996 PCr.LJ 656];
12. Muhammad Nawaz v. Abdul Hayee and another, [1976 SCMR 36];
13. Sikandar v. The State, [PLD 1963 SC 17];
14. Dilshad v. The State, [1995 PCr.LJ 248]
15. Yaar Khan v. The State, [2008 PCr.LJ 1180];
16. Javaid Akhter v. Muhammad Zubair and 3 others and Muhammad Zubair and another v.
State and another [2015 SCR 533]
17. Tariq Pervez v. The State, [1995 SCMR 1345]
18. Ali Muhammad v. Muhammad Akram and another and Ali Muhammad v. Qabir Ahmed and 4 others, [2014 SCR 351].
Conversely, Raja Muhammad Hanif Khan, the learned Advocate appearing for the complainant, argued that manner and place of occurrence was admitted by the defence as it appears from the trend of cross-examination. The learned advocate contended that presence of witnesses on the spot was also established and recovery of the weapon of offence was also proved. The learned Advocate argued that motive alleged by the prosecution was also proved because after the death of Gulzar Rafique, Mst. Sania the sister of convict also committed suicide. The learned Advocate contended that it is correct that for awarding punishment of Qisas, the evidence of two witnesses is required but in presence of single eye-witness coupled with the corroboratory evidence and other material, it was enjoined upon the trial Court to award death sentence as Tazeer to the convict. The learned Advocate argued that life of Gulzar Rafique an innocent person was taken in brutal manner and the convict does not deserve any leniency. The learned Advocate contended that recovery was effected in presence of the witnesses of the locality and there was no lacuna in the recovery and the same was rightly believed by the trial Court. The learned Advocate prayed for acceptance of the appeal filed on behalf of the complainant and submitted that sentences awarded by the trial Court may be enhanced as has been prayed in the appeal: In support of his submissions, the learned Advocate placed reliance on following case law:-
1. The State v. Haider Zaidi and 2 others, [2001 SCMR 1919];
2. Ellahi Bakhsh v. Rab Nawaz and another, [2002 SCMR 1842];
3. Abdul Rashid and 3 others v. Abdul Ghaffar, [2001 PCr.LJ 524];
4. Sher Dil and others v. The State and others, [2003 YLR 110];
5. Nawaz and another v. The state and others, [2003 YLR 2926]; We have heard the learned Advocates for the parties and gone through the record of the case.
As, facts of the case have been stated hereinabove, therefore, the same need not to be reiterated for the sake of brevity. Suffice it to observe that in the present case, Muhammad Idress, complainant, is not an eye witness of the occurrence. He has lodged the report Exh."PM" on the information furnished to him by Muhammad Pervaiz, who allegedly was injured in the same occurrence. No eye-witness is mentioned in the FIR, however, Muhammad Aslam and Muhammad Pervaiz have fully owned the prosecution version. The learned Court below has not found Muhammad Pervaiz as "Adil" witness. The learned trial Court has convicted the accused to life imprisonment (25 Years) under section 302(b), A.P.C. It is an admitted fact that incident has taken place in daylight in busy Bazar which is consisting of more than 30 shops. It is also not denied that all the shops were open at the time of occurrence. It is also admitted by the prosecution that shopkeepers were attracted to the place of occurrence soon after the incident but their statements were not recorded by the police. Ordinarily, much weight is given to the statement of an injured witness, but in the present case Muhammad Pervaiz was referred to CMH Rawalakot as is evident from annexure "PF" but he left the hospital at his own and went to Islamabad where he was operated. His statement was that he was referred to PIMS by the Doctor of CMH which assertion is not supported by any document or referring form. Even, no record has been collected by the prosecution from PIMS regarding his operation. The statement of concerned Doctor has not been recorded by the police, therefore, question of injury of Muhammad Pervaiz in the same incident is doubtful. Be that as it may, injury on the person of an eye-witness is the proof of his presence at spot, but it is not guaranteed that he is a truthful witness. The Doctor who examined him at CMH Rawalakot has not been examined but his secondary evidence has been led by the prosecution. No reason has been given as to why the doctor who has given opinion of injury has not been examined, therefore, conviction recorded by the trial Court for injury of Muhammad Pervaiz, P.W is not sustainable under Jaw (1991 SCMR 241). As stated above, Muhammad Pervaiz is not found by the trial Court an "Adil witness" but under law his statement cannot be brushed aside in toto and can be considered for awarding alternate punishment provided under law. Though, Muhammad Aslam is not mentioned as eye-witness in the FIR but he has been examined as such and defence has not pointed out that he was not present on spot or he has not witnessed the occurrence. He is a natural witness. Admittedly, his shop is located in the same Bazar and was open at the time of occurrence, therefore, statements of Muhammad Aslam as well as Muhammad Pervaiz have rightly been believed by the learned trial Court for awarding punishment of Tazeer. However, recording evidence of some of the witnesses at belated stage without there being any plausible explanation is highly doubtful and such statement has been ruled out from consideration by the superior Courts. In a case tilted Rahat All v. The State, [2010 SCMR 584], it was opined by the apex Court of Pakistan at page 588 in para 9 as under:- "9. The story narrated by P.W.2 that after the abduction he went to sleep in the house also does not seem to be true because in such a situation he could not have gone to sleep when his parents were abducted. His natural and immediate conduct would have been to go to his uncle or his mother who was first wife of deceased to inform her about the incident. Thus there is inordinate delay of silence of P.W.2 which creates doubt about his veracity. Delay of 24 hours, 4 days and 15/20 days in reporting the matter to the police or recording the statement of witnesses by the police has been found adversely affecting the veracity of witnesses as held in the cases of Muhammad Sadiq v. The State PLD 1960 SC-223, Sahib Gul v. Ziarat Gul 1976 SCMR 236 and Muhammad lqbal v. State 1984 SCMR 930, respectively. It has also been observed by this Court that delay in recording the statement without furnishing any plausible explanation is also fatal to the prosecution case and the statement of such witness was not relied upon in the case of Syed Muhammad Shah v. State 1993 SCMR 550. Therefore, the evidence of P.W.2 is coming within the scope of above rules laid down by this Court. Hence, his statement cannot be safely relied upon in the peculiar facts and circumstances of the present case."
Another case tilted "Lal Muhammad v. State, [PLJ 2012 Cr:C (Quetta) 574 (DB)1, can also be referred.
So far as the reliance on recovery of pistol is concerned, that is highly doubtful. The convict was arrested on the same day and this fact has been admitted by Muhammad Ejaz Khan, Inspector in his Court's statement. The recovery of alleged weapon of offence was made on 11.11.2010. The convict remained in the custody of police and no reason has been shown for this inordinate delay in the recovery proceedings. When the convict has been taken into custody at a proper time and remained in the custody of police then making of recovery after an inordinate delay makes the case of prosecution highly doubtful and the recovery unreliable. In this regard, the observations of the apex Court of Pakistan recorded in a case titled "Abdul Rehman and others v. The State," [1983 SCMR 9581 can be followed. In that case recovery was made after a period of 14 days and it was disbelieved by the Court in the circumstances of the case. Another fact which makes the recovery highly doubtful is that in the recovery memo Exh."PT" it was stated that number of pistol cannot be read for having been rubbed. The pistol was sent to the chemical examiner which was produced before the Court was bearing no number. Both the recovery witnesses Shakeel Ahmed and Babar Khalil have testified the aforesaid fact. Even, Muhammad Ejaz Khan, Inspector could not clarify the position when question was put to him in the cross-examination. In these circumstances, the recovery of pistol from the convict cannot be believed and accepted even as corroboratory evidence. Sardar Shamshad Hussain Khan, the learned Advocate for convict-appellant heavily stressed upon the letter dated 11.12.2010, in which it is stated that the pistol sent to the chemical examiner has been recovered from the place of occurrence, which is the shop of Muhammad Pervaiz, P.W located in Khaigala Bazar. Thus, the pistol recovered from the house of convict has not been sent to the chemical examiner for analysis. The argument has a substance. In the letter Exh."PF" written by SSP Rawalakot for chemical examination of weapon of offence and empties, it has been categorically stated that articles being sent to the chemical examiner were recovered from the place of occurrence. The occurrence took place in Khaigala Bazar whereas recovery of weapon of offence was made from the house of the accused which is far away from the place of occurrence. This contradiction has been overruled by the trial Court on the ground that it is a clerical mistake. In our view, the document was written by SSP Rawalakot and was produced by the prosecution in evidence, hence, the same cannot be ignored and benefit of doubt arising on the basis of document can be given to the convict. In a case titled "Sikandar v. The State,". [PLD 1963 SC 171, it was observed at page 19 of the report, as under:- "The choice lay between doubting his statement that he gave his evidence to the Police the same night before 9:53 p.m., and doubting the statement of the Assistant Sub-Inspector of Police regarding all that he did after receiving the report and before sitting down to record the statement of Muhammad Ramzan. The learned Judges in the High Court did not think that this clear doubt was incapable of being cleared. They preferred to believe that Muhammad Ramzan was a genuine witness because they thought that if he was not, then Ranjha would not have taken the risk of naming him in the report. In order to come to this conclusion, they decided that the A.S.I. Had not made "a straight-forward statement."
In reaching it is perfectly clear that learned judges have ignored one of the cardinal principles applicable to the,resolution of all material questions arising in a criminal proceedings, namely, the principle that the benefit of every doubt must go to the accused. It being a question whether the A.S.I. Was to be believed or Muhammad Ramzan was to be believed, the only course open to the learned judges in accordance with this recognized rule applicable to criminal justice was to hold in favour of the accused, namely, that it was doubtful whether Muhammad Ramzan, was true witness.
Materials have been brought on the record by the defence to indicate that he was not free from the influence of the family of the accused.
If the evidence of Muhammad Ramzan be disbelieved, there remains no evidence to sustain the conviction, for the knife found on the spot has not been traced to the ownership either of the appellant or anyone else. The case becomes one of "no evidence." We allow the appeal by Sikandar setting aside his conviction and sentence direct that he be acquitted. The appeal of Ranjha consequently fails and is hereby dismissed."
So far as the question of motive is concerned, the prosecution is not bound to allege motive and the consensus is that where motive alleged is not proved, the death sentence cannot be awarded.
In case titled "Hakim Ali and 4 others v. The State and another," [1971 SCMR 4321, it was opined at page 445 of the report as under:- "It is not necessary for the prosecution to set up a motive in every case but where the prosecution has set up a motive and failed to establish it then it is the prosecution which must necessarily suffer on that account and not the defence.
If the prosecution failed to establish the motive set up by it, as also failed in establishing that the incident occurred in the manner alleged by it then it is difficult to see as to what remained of the prosecution case."
In another case titled "Ali Hussain v. Mukhtan and another," [1983 SCMR 8061, at page 811 of the report, it was observed as under:- "Motive though not a sine-qua-non for bringing the offence of murder home to the accused, is relevant and important on the question of sentence. In the instant case the motive alleged by the prosecution remains obscure and it cannot be positively maintained that the deceased was stabbed just for refusing to stop seeing Ch. Barkatullah, MNA. It seems that there was something else which had actually arranged the accused to attack the deceased. Thus, for the safe dispensation of justice we consider that life imprisonment, in the case, in hand would meet the ends of justice."
In the instant case, it is alleged by the prosecution that deceased wanted to marry with Mst. Sana, the sister of convict but it could not happen due to which the convict committed his murder. As per prosecution evidence, Mst. Sana was married to someone else before the incident, however, she was not living with her husband. It is a hearsay version of the P.W's that she subsequently committed suicide but in absence of direct evidence that deceased has ever demanded the hand of the sister of the convict it cannot be assumed that refusal of the hand of Mst. Sana motivated the convict for murder of deceased, therefore, it can be concluded that prosecution has failed to prove the motive.
So far as the counter appeal is concerned, the arguments of the learned Advocate for the appellant that as two witnesses were available before the trial Court, therefore, by accepting the appeal the punishment awarded to the convict may be enhanced is devoid of any force. The appeal has been filed by the complainant who is not legal heir of the deceased, therefore, the same is not maintainable solely on this ground. The reference can be made to a case titled "Muhammad Malik v. Karam Elahi and another," [12011 SCR 4311] On the basis of above analysis of the evidence as well as the case law produced on behalf of the parties, we have reached at the conclusion that prosecution has failed to prove the motive alleged by it. We have also noticed that Bazar at the time of occurrence was open but except Muhammad Aslam who is relative of the deceased, no other shopkeeper was examined by the prosecution as eye-witness. It is also on record that some shopkeepers also visited the place of occurrence but police has not recorded their statements. After disbelieving the recovery and story of injury of Muhammad Pervaiz, P.W we are convinced that sentence awarded to the convict by the trial Court is not proper. No doubt that minimum punishment for taking human life is Qisas, but the same has to be awarded when "Nisab" provided by law is complete. Even, for awarding the sentence of Tazcer, the evidence should be convincing and aboveboard, therefore, we altered the sentence of life imprisonment (25 years) awarded to the convict by the trial Court to the extent of sentence has already undergone by him. So far as sentence of compensation under section 544-A, Cr.P.C. Is concerned that is also altered in the terms that alternate sentence awarded to the convict for the period of 06 months has already been borne by him. It is further held that as the injury of Muhammad Pervaiz and recovery of weapon of offence, is not proved, therefore, sentences awarded to the convict for causing injury to Muhammad Pervaiz as well as in the offences under section 13/20/65, A.A. Are hereby vacated.
The result of the above is, that we partly accept the appeal filed by convict Ghulam Murtaza and it is ordered that he shall be released forthwith provided he is not involved in any other case or offence. The .Counter appeal filed by the complainant is not maintainable as stated herein above, hence, the same stands dismissed.