' QAZI MUHAMMAD AMIN AHMED, J. --- Muhammad Nawaz and Shoaib, real brothers inter-se, are in receipt of a guilty verdict, returned to them by a learned Addl. Sessions Judge at Pindi Bhattian vide impugned judgment dated 12.2.2011; they are convicted under Section 302(b) of the Pakistan Penal Code, 1860 on two counts and sentenced to death on each with compensation of Rs, 500,000/- on each count or to undergo six months' SI in the event of default.
' Prosecution case is founded upon written application Ex.PG presented by Sultan Ahmad (PW-8) before Atta Muhammad, SI (PW-10) at 9:45 am. On 15.9.2009 near Canal Bridge Handuana wherein it is alleged that on the fateful day, he alongwith his sons Mansab All and Mehdi Hassan, deceased was ploughing their land; Muhammad Ayub (PW-9), who came to fetch fodder also joined them; Ansar Bibi and Kaniz Bibi, PWs brought breakfast and it was at this point of time that Muhammad Nawaz and Shoaib, appellants armed with pistols alongwith Jehangir, Saifullah and Munir Ahmad confronted them. After raising Lalkara that they be not spared for breach of field banks, Muhammad Nawaz fired hitting Mehdi Hassan followed by Shoaib on Mansab Ali hitting them on various parts of their bodies; they succumbed to their injuries at the spot. Other co-accused fired upon the PWs, who escaped miraculously. Motive for the incident is cited as dispute over a property. It is a common ground at the bar that both the deceased and the appellants are collaterals in first degree with exchange marriages. Atta Muhammad, SI (PW-10) during spot inspection secured blood-stained earth and casings of 30 caliber pistol through inventory besides taking other investigative steps. Dr. Asghar Ali Hanjra (PW-6) conducted autopsy at 6:00 p.m. On 15.9.2009 and noted five fire-arm wounds of entry on the dead-body of Mansab Ali, located on top of right snoulder, lateral side of right chest, right lower side of abdomen, middle of left thigh and lower left arm with their respective exits. Three grazing fire-arm wounds were seen on the right side of chest below right clavicle, near left nipple and on the front of abdomen above umbilicus. Injuries were ante-mortem and sufficient to cause death in the ordinary course of nature; death immediately followed the injuries with 10 to 11 hours duration between death and post-mortem.
Four entry wounds were observed on the dead-body of Mehdi Hassan deceased on front of upper part of left ear, right and left side of chest; each with an exit.
' Injuries No, 3, 4 and 5 located on right and left side of chest were declared as cause of death. All the injuries were ante-mortem; death was immediate and-duration between death and post- mortem was 10 to 13 hours. Casings were dispatched to the Forensic Science Laboratory Punjab, Lahore through Liaqat Ali-C (PW-7). The appellants were arrested on 27.9.2009, pursuant to disclosures, they led to the recovery of pistols (P-17) and (P-18) on 1.10.2009, sent for comparison on 8.10.2009. Forensic Science Laboratory report Ex.PZ is in the positive; empties dispatched earlier to appellants' arrest are found to have been fired from pistol P17, P-18, recovered at the instance of the appellants. Jehangir, Saifullah and Munir Ahmad, accused were exonerated during the course of investigation, however, on conclusion thereof, they were sent to face trial. All the accused were indicted on 19.1.2010 when they denied the charge and claimed trial, pursuant whereto, the prosecution besides placing reliance upon forensic reports produced as many as 11 witnesses to drive home charge against them. The accused rallied behind a denial and blamed unknown persons to have murdered both the deceased in an unwitnessed occurrence. The learned Trial Judge acquitted Jehangir, Saifullah and Munir Ahmad accused from the charge, however, proceeded to convict and sentence the appellants vide impugned judgment dated 12.02.2011 as referred to above, vires whereof, are being challenged through Crl. Appeal No, 326 of 2011 whereas confirmation of death penalty is prayed for through Murder Reference No, 113 of 2011; these are being decided through this single judgment.
2. Learned counsel for the appellants contends that Sultan Ahmad (PW-8), is an elderly person, who had no occasion to accompany the deceased at the spot and that in the backdrop of alleged enmity, had he been present at the venue, he would not have been spared; that Ansar Bibi and Kaniz Bibi, PWs have not been produced; that Muhammad Ayub (PW-9) is a chance witness being not from the locality and as such ocular account does not qualify to sustain the charge; that three out of five accused -named in application Ex.PG , have been exonerated during the course of investigation and even during the trial;, same set of evidence has been disbelieved qua them, therefore, in the absence of independent corroboration, evidence furnished by Sultan Ahmad (PW- 8) and Muhammad Ayub (PW-9) is liable to be excluded from consideration; that belated dispatch of empties and guns renders positive Forensic Science Laboratory Report Ex.FZ as inconsequential.
It has lastly been argued that on' an overall analysis of prosecution evidence, plea raised by the appellants sounds more plausible, therefore, ought to have been accepted. Contrarily, the learned Law Officer assisted by the learned counsel for the complainant has defended the impugned judgment by arguing that two real brothers have been done to death in cold blood within the view of their aging father, no other than the real paternal uncle of the appellants as well as Kaniz Bibi and Ansar Bibi, their first cousins over a petty dispute of land and as such the appellants do not deserve to be visited with any degree of leniency, who mercilessly fired multiple shots in a wanton and callous manner; that given the inter-se relationship between the appellants and deceased as well as witnesses, there is no earthly reason to discard their testimony duly supported by medical evidence as well as positive forensic report Ex.PZ; they have unanimously prayed for confirmation of death penalty.
3. Heard. Record perused.
4. Both the deceased are real brothers, in their prime youth, so are the appellants; they are collaterals in first degree. Acquitted co-accused are closely related with the deceased as well. Real sister of the appellants was married with Mansab deceased; the marriage terminated into divorce through a Family Court. Mehdi Hassan deceased is survived, amongst others by his widow Nasreen, real sister of Munir Ahmad, acquitted co-accused. A petty issue has devastated the family. In this backdrop, culpability of the appellants cannot be seriously contested; there cannot be possibly any earthly reason for their substitution with the real culprits. The incident occurred within the area adjacent to village Abadi, in broad daylight; presence of eye-witnesses Sultan Ahmad (PW-8) and Muhammad Ayub (PW-9), both cultivators by profession at the venue at relevant time is natural and probable. Sultan Ahmad (PW-8), father of the deceased, furnished graphic details of the incident and successfully withstood the test of cross-examination unscathed; Muhammad Ayub (PW-9) is in line with him on all the salient features of the prosecution case. These two Witnesses cannot be blamed to have an axe to grind against the appellants. Case set up in application Ex.PG is straightforward, corroborated by medical evidence. Casings secured from the spot were dispatched to the Forensic Science Laboratory prior to the arrest of the appellants; these are found to have been fired from the weapons recovered at the instance of the appellants. Acquittal of co- accused does not adversely effect the case of the prosecution qua the appellants as they are not assigned any harm either to the deceased or to the PWs; as they were exonerated during the course of investigation, they have been acquitted out of abundant caution to ensure safe administration of criminal justice. Plea raised by the appellants that both the deceased were done to death in broad daylight close by village Abadi in an un-witnessed occurrence requires a pinch of salt. It is a family bitterly divided not only over a dispute relating to land but matrimonial failures as well. All these factors, structured on positive proof exclude every hypothesis of appellants' innocence; they have been rightly convicted by the learned Trial Court. Consequently, Crl. Appeal No, 326 of 2011 fails. However, insofar as question of quantum of sentence to be exacted from the appellants is concerned, we have very cautiously attended that aspect of the case. Motive cited in application Ex.PG is annoyance of the accused over WatBandi of the fields, in the later part of the application a reference is made to a dispute over property is referred. Both the limbs of the alleged motive are equally attributed to five accused without any distinction. Neither during the investigation nor before the Court any evidence was produced to articulate the motive and even the learned Trial Judge was constrained to hold "the prosecution has not adduced sufficient evidence to prove the motive part of the occurrence" Prosecution's failure on this count constitutes a mitigating circumstance to visit the appellants with the alternate penalty of imprisonment for life.
Reliance is placed on the cases of Ahmad v. The State (2015 SCM R 993) and Naveed alias Needu & others v. The State & others (2014 SCM R 1464). Consequently, penalty of death is converted into imprisonment for life on each count. Both the sentences shall run concurrently with amounts of compensation kept intact. We have also considered extension of benefit of Section 382-B of the Code of Criminal Procedure, 1898 in the wake of conversion of sentences in the light of law declared in the cases of Shah Hussain v. The State (PLD 2009 SC 460) and Muhammad Zaheer alias Tiko v. The State (2011 SCM R 38). In the case of Shah Hussain, five. Hon'ble Judges of the Supreme Court of Pakistan examined the question of grant of benefit under Section 382-B of the Code ibid with concomitant remissions; the relevant portion of conclusion drawn for the convenience of reference is advantageously reproduced below:--- ' "The refusal to take into consideration the pre-sentence custody ,period at the time of passing the sentence is illegal inasmuch as if a Court sentences a convict to imprisonment for life, which is, the alternate but maximum sentence for the offence of murder, but does, not make allowance for the pre-sentence custody period, it would be punishing the convict prisoner, with imprisonment for life plus the pre-sentence custody period, that is to say, more than the maximum legal punishment;"
' A separate mite recorded by one of the Hon'ble members of the Bench; Ch. Ljaz Ahmed, as Ns Lordship then was, somehow escaped publication alongwith the reported judgment; It fa an integral part of the supra case and relevant portion thereof is reproduced below:--- `The object of this Section is to compensate the accused if he has remained incarcerated for long period as under-trial prisoner and bail was not granted to him. The object of this new provision of law is to grant to the accused the benefit of a concession by treating, in appropriate cases, the period of a detention undergone by him as an under-trial prisoner as that spent by him as a convict, so as to relieve him from the burden of undue incarceration to which he may have been subject as a result of any delay in the trial. In view of the mandatory language of this section, the Court is duty bound in each case to apply its mind to this question, but this does not mean that it is bound in all cases to grant the concession. The Trial Court should, therefore, in each case record its reasons for withholding the, said concession. Since the provision is founded in equity, this Section should be liberally applied, unless for certain strong or special reasons, to be expressly recorded, the Court considers otherwise."
' The above clearly Illustrates that Court while passing sentence must take into account the period of incarceration preceding pronouncement of sentence so as to consider the desirability of extending benefit there under, however, the Court may decline for "certain, strong or special reasons to be expressly recorded" to withhold the benefit, nonetheless, in such a manner that in consequence thereof a convict does not undergo period of detention in excess to the punishment provided for the crime. In the case of Muhammad Zahid alias Tiko, again the question of extending benefit of Section 382- the ibid is left with the discretion of the Court certainly to be structured judiciously having regard to the facts and circumstances of each case. The appellants were arrested on 27.9.2009 and convicted on 12.2.2011. Under Section 57 of the Pakistan Penal Code, 1860, imprisonment for life is to be reckoned as equivalent to 25-years, therefore, in the event of denial of benefit under Section 382-B of the Code of Criminal Procedure, 1898 to them, their sentences would remain within the permissible period provided under the law as they still can possibly avail remissions under Section 55 of the Code ibid; in this backdrop given the enormity of their crime, wherein they brutally murdered two real brothers, no other than their first cousins; one of them, a brother-in-law as well within the view of their aging father and real sister on a petty issue origin whereof remains shrouded in mystery, through successive fire shots in broad daylight, we do not feel inclined to extend them benefit provided under Section 382-B of the Code of Criminal Procedure, 1898. Murder Reference No, 113 of 2011 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.