Abdul Sami Khan, J:- Through this single judgment, we intend to decide Criminal Appeal No.2805 of 2010 filed by Muhammad Boota and Nazir Hussain alias Jajji and Reference sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Muha mmad Boota and Nazir Hussain alias Jajji appellants, numbered as Murder Reference No. 664 of 2010. All these matters have arisen out of one and the same judgment dated 29.11.2010, passed by learned Additional Sessions Judge, Kasur , in case FIR No.59/2007 dated 05.04.2007 under Sections 302, 148, 149 PPC, Police Station Raja Jang District Kasur , whereby Muhammad Boota and Nazir Hussain alias Jajji appellants were convicted and sentenced as under:- Muhammad Boota appellant:- Under Section 302 (b) PPC read with Section 34 PPC to death for the murder of Rehmat Ali with direction to pay compensation of Rs.1,00,000/- (Rupees one hundred thousand only) as envisaged under Section 544-A Cr.P.C. to the legal heirs of deceased Nazir Ahmad alias Jaiii appellant:- Under Section 302 (b) PPC read with Section 34 PPC to death for the murder of Rehmat Ali with direction to pay compensation of Rs.1,00,000/- (Rupees one hundred thousand only) as envisaged under Section 544-A Cr.P.C. to the legal heirs of deceased..
2. The prosecution' s case unfolded in the complaint Ex.PA and FIR (Ex.P A/1) got lodged by Muhammad Ibrahim (PW-1) that on 05.04.2007 at about 6.15 a.m. when he alongwith his son Rehmat Ali came from his house and went to mosque for offering prayer . The complainan t entered in the mosque whereas his son Rehmat Ali proceeded towards the brick kiln, at that time the accused Muhammad Boota armed with 12 bore gun, Ramazan armed with 30 bore pistol, Faqeer Hussain (since P.O) armed with carbine 12 bore, Nazir Hussain alias Jajji armed with carbine 12 bore alongwith two unknown accused also armed with fire arms, who were concealing themselves in the house of Mokha son of Ghaseeta by making checkpoint waylaid him. When the accused came to know about the arrival of Rehmat Ali, they started firing with their respective weapons. The fire shot of accused Boota landed on the chest of his son. The fire shot of Jajji hit on the thigh and other parte of the body of his son. The fire shot of Faqeer Hussain (since P.O) landed on the face of his son, who in serious condition fell on the ground. On hearing the fire shots, the complainant rushed towards the place of occurrence whereas Haider Ali son of Ahmad Din and Ghulam Qadir son of Ibrahim also witnessed the occurrence. Thereafter his son was shifted to hospital and from where he was referred to Jinnah Hospital, Lahore but he succumbed to the injuries.
Motive behind the occurrence was that the accused were suspecting that the son of the complainant had illicit relations with Mst. Sughran alias Rani Bibi wife of accused Muhammad Boota.
3. After registration of FIR, investigation of the case was conducted by Jafar Ali S.I. (PW-10) and Muhammad Riaz S.I (PW-5) conducted the investigation to the extent of accused Mohsin son of Muhammad Boota and after completion of the same, report under section 173 Cr.P.C. was accordingly submitted in the learned trial Court for initiation of regular trial. On commencement of trial, after observing legal formalities as provided under the Code of Criminal Procedure, 1898, learned trial Court framed charge against the accused under Sections 302, 148, 149 PPC on 12.12.2007 and on separation of trial of co-accused Munir Hussain being juvenile and on the arrest of co-accused Mohsin again charge was framed on 29.05.2009 to which they pleaded not guilty and claimed a trial.
4. To substantiate its version at the trial, the prosecution produced as many as eleven witnesses during trial before the learned trial Court. Ocular account was furnished by Muhammad Ibrahim (complainant) PW-1 and Ghulam Qadir PW-3.
Jafar Ali S.I. (PW-10) and Muhammad Riaz (PW-5) are the investigating officer. They testified about the investigation conducted by them. The medical evidence was furnished by Dr. Muhammad Azam Khokhar (PW-5) who on 05.04.2007 medically examined Rehmat Ali in injured condition and after the death of Rehmat Ali, Dr. Ifhfaq Ahmad Akhtar (PW-4) on 06.04.2007 conducted the post mortem examination on the body of Rehmat Ali deceased. Rest of the prosecution witnesses are more or less formal in nature. After tendering in evidence the report of Chemical Examiner Lahore Ex.PH and that of Serologist Ex.PJ and that of Forensic Science Laboratory Lahore Ex. PK, learned ADPP closed the prosecution evidence.
5. The appellants in their statements recorded under Section 342 Cr.P.C. professed their innocence and pleaded false implication in the case. Neither they opted to get record their statements under Section 340(2) Cr.P.C. in disproof of allegations levelled by the prosecution against them, nor they produced any defence evidence.
6. At the end of 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 Muhammad Boota and Nazir Hussain alias Jajji appellants as mentioned in paragraph No.1 of this judgment, whereas Muhammad Ramazan and Mohsin Raza co-accused were acquitted of the charge by the learned trial Court.
7. Learned counsel for the appellants, in support of their appeals, submits that the appellants are absolutely innocent and they have been involved in this case with malafide intention and ulterior motives; the complainant and the alleged eye witnesses were not present at the spot and they have been manufactured by the prosecution only to create eye witness account against the appellants in the murder of Rehmat Ali deceased: there are material contradictions between the statements of eye witnesses recorded before the trial Court and the medical evidence; the motive set up in FIR has not been proved by the prosecution during trial. Learned counsel further submits that the complainant committed murder of three persons and was acquitted on the basis of compromise and this murder was committed by the complainant party of that murder case to take revenge of murder of three persons. The statement of Ghulam Haider was recorded as PW.2 but later on he was given up by the prosecution being won over. Learned counsel submits that the prosecution has failed to prove its case beyond any shadow of doubt and the evidence so produced is not confid ence-inspiring and is not worthy of credence, so the appellants deserve clean acquittal.
8. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes the submissions made by learned counsel for the appellants and submits that appellants while armed with deadly weapons construed unlawful assembly in prosecution of their common object launched murderous assault upon the Rehmat Ali, the matter was reported to the police within shortest possible time, which excluded the element of deliberation and consultation; appellants are named in promptly lodged FIR with specific role and the roles attributed to them are borne out from medical evidence; the eye witness account is consistent against the appellants, that is duly corroborated by the medical evidence; the appellants have not brought on record any material showing malafide, ill-will or previo us grudge of the eye witnesses so as to establish that they have made false statements against the accused; the motive part of the prosecution case is also proved; the prosecution case stands proved from all corners against the appellants; substitution of the appellants for the real culprits is rare phenomena and it cannot be imagined that one can involve innocent persons in such a heinous offence by letting of the real culprits. The prosecution has successfully proved its case against the appellants, so while maintaining the conviction of Muhammad Boota and Nazir Hussain alias Jajji appellants, murder reference be answered in af firmative.
9. We have considered the arguments advanced by learned counsel for the appellants, learned Deputy Prosecutor General and learned counsel for the complainant and have also scrutinized the entire record with their valuable assistance.
10. According to the narrations of FIR (Ex.P A/1), the occurrence took place at about 6.15 a.m. After the occurrence, Rehmat Ali in injured condition was shifted to DHQ Hospital Kasur and from where he was referred to Jinnah Hospital Lahore but he succumbed to his injuries. After return from Jinnah Hospital, Lahore, the complainant went to police station and submitted an application Ex.PA to Abdul Aziz ASI/Duty Officer (PW.11) and he drafted the FIR Ex.PA/1 at 2.15 p.m.
Although there is a delay of about eight hours in reporting the matter to the police, yet the fact remains that after the occurrence the deceased in injured condition was shifted to hospital by the complainant and then to Jinnah Hospital Lahore as saving the life of injured is always considered prime consideration, this definitely took considerable time. Moreso, keeping in view the distance between the place of occurrence, DHQ Hospital Kasur , Jinnah Hospital Lahore and the Police Station such delay is not so fatal to the case of the prosecution.
11. Before starting discussion over the ocular account, we feel it appropriate to mention here that we have observed certain distinctive features in the case of prosecution against Muhammad Boota and Nazir Hussain alias Jajji. As regards the case of Muhammad Boota appellant is concerned, he was armed with 12 bore gun and made one fire shot at Rehmat Ali deceased hitting him at his chest. Nazir Hussain alias Jajji appellant was armed with 12 bore carbine and he caused firearm injury to Rehmat Ali deceased hitting him at right thigh and on other parts of body . It has been observed by us that Muhammad Ibrahim complainant while appearing before the learned trial Court as PW-1 leveled same allegations and elaborated the roles of Muhammad Boota and Nazir Hussain alias Jajji appellants. His statement got full support from the deposition of Ghulam Qadir (PW-3) who remained unison with the complainant (PW-1) on all material aspects of the case to the extent of Muhammad Boota and Nazir Hussain alias Jajji appellants. As far as the presence of these witnesses is concerned, they have successfully proved their presence at the place of occurrence and the defence could not shatter the same.
During arguments, learned counsel for the appellants emphatically urged that Muhammad Ibrahim complainant (PW-1) is father of Ghulam Qadir (PW-3) as well as Rehmat Ali deceased and as such they are interested witnesses. We have observed that it is well settled by now that relationship of witnesses inter-se or with the deceased, alone, cannot be made basis to disqualify them from being truthful witnesses. Similarly law is also settled on the point that mere relationship with the deceased does not make any witness interested, because such witness is necessarily not the interested witness in true sense of the term and as such his statement cannot be disbelieved solely on the plea that he is related to the deceased because an interested witness is the person who has motive to falsely implicate the accused. Viewing the testimony of eye- witnesses in the light of aforesaid criteria, we do not find their testimony as tainted or that they had any motive to falsely implicate Muhammad Boota and Nazir Hussain alias Jajji appellants nor the defence has been able to bring on record any material for their false implication in this case.
As already discussed above, Muhammad Boota and Nazir Hussain alias Jajji appellants are named in FIR (Ex.P A/1) and specific roles have been attributed to them therein. Admittedly it is a daytime occurre nce which took place early in the morning at 6.15 a.m and the parties are known to each other , so there is no chance of mistaken identity of the appellants at the time of occurrence. After thorough investigation conducted by Jaffar Ali S.I./I.O. (PW-10), they were found fully involved in the instant case and Muhammad Ibrahim complainant (PW-1) and Ghulam Qadir (PW-3) eye witness also remained consistent before the learned trial Court qua their involvement in the instant case. Thus, we do not find any reason to discard their statements against Muhammad Boota and Nazir Hussain alias Jajji appellants, because, the same inspired confidence to their extent.
12. The medical evidence in this case has been furnished by Muhammad Azam Khokhar (PW-5) who medically examined Rehmat Ali in injured condition on 05.04.2007 at about 7.30 a.m. who found 14 injuries on his person. After the death of Rehmat Ali, Dr. Ashfaq Muhammad Akhtar (PW-4) conducted the post mortem examination on the dead body of Rehmat Ali who found 28 injuries on the body of deceased but the same injuries are similar to the injuries as founded by Dr. Muhammad Azam Khokhar (PW-5) as the deceased received some collective injuries and number of the injuries are the same as mentioned by both the Doctors. Muhammad Boota appellant has been mentioned to have caused injury on the front side of chest of Rehmat Ali deceased through 12 bore gun which injuries are mentioned as injuries No. 2,3,4 and 5 as per post mortem examination Ex.PE conducted by Dr. Ashfaq Muhammad Akhtar (PW-4) whereas Nazir Hussain alias Jajji appellant has been mentioned to have caused fire arm injury through 12 bore carbine on right thigh and other parts of the body which injured as injuries No. 9,10,1 1,12,13,14, 15 and 16 while the shot of Nazir Hussain alias Jajji also landed on right thigh which injury is injury No.18 which are seven in number . We have observed that the post-mortem report (Ex,PE) of Rehmat Ali deceased and medico legal report (Ex.PF)of Rehmat Ali fully corroborates the ocular account regarding nature of injures, weapons of offence used and locale of injuries sustained by the deceased. In spite of the fact that statements of Dr. Ashfq Muhammad Akhtar (PW-1) and Dr. Muhammad Azam Khokhar (PW-5) made before the learned trial Court were subjected to cross-examination by the defen ce but nothing helpful to the appellants could be extracted from their mouths. It is also noticed that both the appellants were armed with 12 bore gun and 12 bore carbine and such like injuries can be caused with the fire shots of 12 bore. It is also noticed that a metallic foreign body (pellet) was found from the left side of abdominal cavity which was entry wound and was dimension of 1/2 X 1/2 cm and the other injuries which are of entrance wound are also of the same dimension. So the learned trial Court was fully justified in holding that medical evidence is absolutely in line with the ocular account and we are also of the considered view that the same has lent full support to the case of prosecution.
13. As far as the recoveries of weapon of offence from Muhammad Boota and Nazir Hussain alias Jajji appellants are concerned, during spot inspection on 05.04.2007, Jaffar Ali SI (PW10) collected 02 empties cartridges of 12 bore vide memo Ex.PC, the same were received in the office of Forensic Science Laboratory on 31.05.2007. Afterwards, 12 bore carbine (P-6) was recovered on the pointing out of Nazir Hussain alias Jajji appellant on 07.06.2007 which was taken into possession by the investigating officer vide recovery memo Ex.PJ and this weapon was received in the office of Forensic Science Laboratory on 05.07.2007. According to the report of Forensic Science Laboratory (Ex.PK) one empty collected by the Investigating Officer during spot inspection matched with the weapons recovered from Nazir Hussain alias Jajji. Thus, the recovery of weapons of offence on the pointing out of Nazir Hussain alias Jajji appellant and positive report of Forensic Science Laboratory (Ex.PK) has provided reasonable corroboration to the case of the prosecution against him. No doubt no recovery of crime weapon was effected from Muhammad Boota appellant but it is lapse on the part of Investigating Officer and the benefit of which could not be extended to Muhammad Boota appellant while the ocular account and medical evidence corroborates the role of this appellant.
14. Coming to motive, Muhammad Ibrahim complainant (PW-1) has mentioned a specific motive behind the incident.
As per FIR (Ex.P A/1), the appellants suspected that Rehmat Ali deceased had illicit relations with Mst. Sughran alias Rani Bibi. During trial, though, the witnesses of ocular account have stated about the motive alleged but the prosecution failed to prove the same as the lady which whom illicit relations of the deceased were alleged by the complainant party who had twelve children who are young and in such scenarios we are of considered view that such relations are not possible.
Similarly , the prosecution also failed to support its case to the extent of motive through any documentary evidence as if any such illicit relations existed between the deceased and Mst. Sughran alias Rani Bibi, the same must have been reported to the police, but nothing is available on record which could suggest so. In this scenario, it is quite hard to understand as to why the accused picked Rehmat Ali and murdered him. Even otherwise, no independent person i.e. lumberdar/councillor has been produced to prove the factum of illicit relation of deceased with Mst. Sughran alias Rani Bibi during investigation as well as trial. In these circumstances, we are clear in our minds that the motive set up by Muhammad Ibrahim complainant (PW-1) in FIR (Ex.P A/1) was not the reason behind the incident and in fact something else had happened which resulted into the present occurrence. Even otherwise, the mode and manner in which the occurrence took place clearly suggest that it was not a preplanned occurrence, because as per FIR Ex.PA/1), as soon as Rahma Ali reached near the house of Mokha son of Ghaseeta, the accused who were present in the house came out in the street and fired at Rehmat Ali. This also resolves the question of sharing common intention by the appellants. Since it was not a preplanned or premeditated incident rather occurrence took place at the spur of moment, which clearly reflects that it is a case of sudden flare-up and what happened behind the occurrence remain shrouded in mystery . We may observe here that if motive is not proved, it does not mean that accused deserve clean acquittal.
15. After a deep evaluation of the prosecution case, we have come to an inescapable conclusion that the prosecution has brought on record sufficient material in the shape of confidence inspiring evidence of ocular account furnished by PWs, which is supported by medical evidence and corroborated by recovery of weapons of offence as well as positive report of Forensic Science Laboratory (Ex.PK) to bring home the guilt of Muhammad Boota and Nazir Hussain alias Jajji appellants.
However , we differ with the quantum of sentences awarded to these appellants by the learned trial court due to the following reasons:-
1. The motive specifically alleged by the prosecution in FIR (Ex.P A/1) could not be proved during the trial and remained shrouded in mystery . It is settled law that when the prosecution sets up a specific motive in FIR, then it is none other than the prosecution itself who is duty bound to prove the same through reliable and confi dence inspiring evidence and non proving of motive can be taken as a mitigating circumstance in favour of the appellant. Reliance in this regard can be placed on the case of "Hasil Khan vs. The State" reported as ( 2012 SCMR 1936 ).
2. The occurrence took place at the spur of moment and what happened between the appellants and the deceased immediately before the occurrence remained shrouded in mystery .
16. It is settled law that while deciding question of sentence, the accused are entitled to the benefit of every mitigating circumstance. In this regard, reliance can be placed upon the case of "Mir Muhammad alias Miro vs. The State" (2009 SCMR 1 188) wherein Hon'ble Supreme Court of Pakistan observed as under:-- "It will not be out of place to emphasize that in Criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
In another judgment reported as "Ansar Ahmed Khan Barki vs. 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 accu sed for award of normal penalty of death. We have also fortified our view qua the quantum of sentence from the case reported as "Sharafat Ali Khan vs. 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 Ahmed Khan vs. Asghar Khan and another ( 2009 SCMR 502 )."
We have further fortified our view from the judgment reported as "Haji Muhammad Sadiq vs. Liaquat Ali and others" (2014 SCMR 1034 ), wherein the Hon'ble Supreme Court of Pakistan 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."
17. As a result of above discussion, the conviction and sentences of Muhammad Boota and Nazir Hussain alias Jajji appellants are altered/modified as under:- Muhammad Boota appellant:- Under section 302 (b) PPC to undergo imprisonment for life instead of death for the murder of Rehmat Ali deceased with direction to pay compensation of Rs.1,00,000/- (Rupees one hundred thousand only) as envisaged under section 544-A Cr.P.C. to the legal heirs of deceased.
Nazir Hussain alias Jajji appellant:- Under section 302 (b) PPC to undergo imprisonment for life instead of death for the murder of Rehmat Ali deceased with direction to pay compensation of Rs.1,00,000/- (Rupees one hundred thousand only) as envisaged under section 544-A Cr.P.C. to the legal heirs of deceased.
It has been noticed that the learned trial court ordered to pay compensation of Rs.1,00,000/- each to the legal heirs of the deceased under section 544-A Cr.P.C. but has not mentioned further punishment in case of default in payment of compensation, so taking into notice this aspect of matter , in case of default of payment of compensation of Rs.1,00,000/- each, the appellants shall further undergo simple imprisonment for six months each. The benefit of section 382-B Cr.P.C. is also extended to them. Criminal Appeal No.2805 of 2010 stands dismissed, death sentence of Muhammad Boota and Nazir Hussain alias Jajji appellants is not confirmed and murder reference is answered in negative.