RAJA SHAHID MEHMOOD ABBASI, J: - Through this single judgment, we intends to dispose of Criminal Appeal No. 24 of 2011 filed by appellant (convict) against his conviction and sentence as well as Murder Reference No. 22-J of 2011 transmitted by the learned trial Court for confirmation or otherwise of the sentence of death awarded to accused being derived from the judgment dated 15-03-2011 passed by the learned Addl. Sessions Judge, Taxila in case FIR No. 365 dated 17-10-2005, under Sections 302,341,34 PPC, registered at Police Station Taxila, whereby the appellant was convicted and sentenced as under:- u/s 302 (b) PPC, death sentence for the murder of Rehmat Ali and to pay compensation of Rs.2 ,00,000/- under section 544-A Cr.P.C. to the legal heirs of deceased; in default thereof to further undergo S.I. for six months. Benefit of Section 382 B Cr.P.C. was extended infavour of the appellant.
2. Brief facts of the case as set forth in Ex.PC/1 FIR No.365 dated 17-10-2005, under section 302, 341,34 PPC, registered at Police Station Taxila recorded on the complaint Ex.PC of Muhammad Mehrban, complainant are that he used to cultivate land in the village. On 17-10-2005 at about 12.0 noon a minor quarrel took place between his paternal cousin Munawar (PW.8) and his Mamoo Aslam, present appellant and afterwards they went towards their homes. In the evening at Aftari time, complainant came out of his house to see his brother Rehmat Ali (deceased), who had gone to the land with the tractor in day time and while seeing about 5.40 pm, he reached near the land of Nawab Asad Ullah and when he was at some distance, he saw that his brother Rehmat (deceased) was coming on tractor and the appellant/accused Muhammad Aslam armed with rifle 12 bore and his son Khadim Hussain, co-accused (since acquitted) armed with hatchet were standing while way laying Rehmat Ali (deceased). Muhammad Aslam, appellant/accused raised a Lalkara and fired with rifle 12 bore which landed at the abdomen of Rehmat Ali (deceased), who fell down.
Muhammad Aslam, accused tried to made second fire shot, then he alongwith Ahmed Din after saving themselves rescued him. The accused persons decamped from the spot while brandishing the weapon of offences. The injured Rehmat Ali (deceased) succumbed to the injuries on the way to the hospital.
The motive behind the occurrence was a previous quarrel took place between Muhammad Aslam, appellant and Munawar Hussain (PW.8).
3. In order to prove its case, the prosecution produced as many as 15 witnesses during the trial; Munawar Hussain (PW.8), Muhammad Mehrban (PW.12) and Ahmad Din (PW.13) furnished the ocular account.
4. Dr. Tanveer Afsar Malik, (PW.9), who conducted the post mortem examination on the dead body of deceased and found one injury on his body. According to her opinion, the probable casuke of death was shock and hemorrhage due to injury which was sufficient to cause death in ordinary course of nature. . The probable time between injuries and death was within half an hour and between death and postmortem was two to four horus.
5. Investigation of the case was conducted by Khalid Hussain, SI (PW.14), who narrated various steps taken by him during the investigation.
6. The prosecution after producing report of FSL, Ex.PP, report of Chemical Examiner Ex.PQ and report of Serologist Ex.PR closed its evidence.
7. The statement of the appellant under Section 342 Cr. P.C. was recorded. He denied the allegations levelled against him and claimed his innocence. In answer to a question, "why this case against you and why the PWs had deposed against you", Muhammad Aslam, appellant stated as under:- "The case is false one and due to grudge of PW, we were falsely involved in an unseen murder case....The Pws are close relatives and are interested witnesses who has a grudge against me whereas other witnesses are the police officials who deposed falsely."
The appellant opted not to appear as his own witness under Section 340(2) Cr. P.C. in disproof of the allegations levelled against him by the prosecution nor opted to produce defence evidence.
8. Upon completion of the trial the learned trial court found the case against the appellant Muhammad Aslam to have been proved beyond any shadow of doubt and thus convicted and sentenced him as mentioned above. Hence, the appeal before this Court. Whereas learned trial court acquitted co-accused namely Khadim Hussain acquitted of the charge.
9. The learned counsel for the appellant contends that judgment dated 15-03-2011 passed by Learned Additional Sessions Judge, Taxila is result of misreading and non-reading of evidence recorded during trial; that there are noticeable discrepancies between the eye witnesses but the learned trial court has ignored the same, that the eye witnesses of the occurrence produced by the prosecution in shape of Munawar Hussain (PW.8), Muhammad Mehrban (PW.12) and Ahmad Din (PW.13) are inter se related to each other and interested witnesses; that the alleged recovery of crime weapon at the instance of the appellant is inconsequential; that on the same set of evidence, the co-accused of the appellant has been acquitted by the learned trial court; the motive is also not proved; the eye witnesses are not trustworthy or reliable witnesses because in their cross examination they have made glaring improvements which create serious doubts in the prosecution story. The prosecution has miserably failed to prove its case against the appellant and it is golden principle of Criminal Jurisprudence that benefit of doubt, if any, has to be given to the appellant not as a matter of grace but as a matter of right; that the prosecution has failed to prove its case against the appellant beyond shadow of any reasonable doubt; that this appeal may be accepted, conviction and sentence of the appellant may be set aside, he may be acquitted and murder reference be answered in negative.
10. Conversely, learned Deputy Prosecutor General vehemently opposes the contentions raised by the learned counsel for the appellant and, inter alia maintains that the appellant is involved in a prompt lodged FIR with specific role of causing murder of an innocent person; that as the parties are closely related, therefore, there is no chance of mis-identification; that the presence of eye witnesses at the place of occurrence is natural; that prosecution case finds corroboration from medical evidence; that the prosecution has proved the motive part of the occurrence; that the prosecution has proved its case beyond any shadow of reasonable doubt. Finally, prayed that the appeal may be dismissed and the murder reference may be answered in affirmative.
11. We have heard the arguments of learned counsel for the appellant, learned Deputy Prosecutor General and also scanned the record with their assistance.
12. The daylight occurrence of this case, as per prosecution case took place on 17-10-2005 at 5.40 pm in the area of Dhoke Aksar Khan, Tehsil Taxila, District Rawalpindi within the territorial jurisdiction of Police Station, Taxila, the matter was reported to the police at 7.00 pm at Civil Hospital, Taxila while the distance between the place of occurrence and police station is 12 kilometers. Considering the place of occurrence, time of occurrence, the status of the parties and relation of appellant with the complainant, we are of the view that the matter was reported without any deliberate or conscious delay.
13. As to the involvement of the appellant in the commission of the crime, it would appear from the evidence that the appellant Muhammad Aslam, armed with 12 bore rifle alongwith Khadim Hussain, co-accused (since acquitted) armed with hatchet and with premeditated motive with the intention to commit murder of Rehmat Ali, deceased came in the land of Nawab Asad Ullah. In this regard, there is sufficient, satisfactory and reliable evidence of Muhammad Mehrban, complainant (PW.12) and Ahmad Din (PW.13). Both of whom appear to be natural witnesses of the incident, as their presence at the scene of offence can hardly be doubted. Their testimony is further strengthened and fully supported by the evidenced of Munwar Hussain (PW.8), who was attracted to the place of incident on hearing firearm report and saw the appellant Muhammad Aslam armed with 12 bore gun while the accused Khadim Hussain, empty handed were running towards their homes and saw that Rehmat Ali, deceased was lying at the spot in injured condition. He alongwith Ahmad Din, Mehrban and other persons took the injured Rehmat Ali to the hospital but on the way the said Rehmat Ali, deceased succumbed to the injuries. All the witnesses have been cross examined at quite some length and despite lengthy and grueling cross examination, we are of the view that their veracity has not been shattered so as to suspect their evidence or to discredit the same.
14. Mere circumstances that deceased Rehmat Ali was the brother of first informant Muhammad Mehrban, in our view does not militate against the credential of this witness who being close kith and kin is supposed to be fully conversant with the incident and a natural person to set the law into motion. Needless to observe stranger and third party do seldom to come forward to volunteer for their evidence and generally there is an attitude of hesitation to appear as a witness before the police agencies. Likewise, if Ahmad Din (PW.13) happens to be brother-in-law of Rehmat Ali,deceased, we do not think this circumstance as a disqualification for a witness or to treat such evidence with an amount of suspicion or discredit. Indeed it is the quality of the evidence which should weigh for determining the guilt or otherwise a person rather than quantity. The said PW categorically stated in his examination-inchief that due to their intervention Muhammad Aslam, appellant/accused failed to repeat the second fire. The deposition of the eye witnesses is very much natural. Mere relationship of Muhammad Mehrban (PW.12) with the deceased would not diminish, and itself, the evidentiary value of his statement, he being a close relative would certainly not substitute real culprits with an innocent person as substitution is a rare phenomenon antithetically retributive to human instinct. Reliance is placed upon case law titled Zahoor Ahmad vs. The State (2007 SCM R 1519). No doubt certain questions have been put to the witnesses suggesting events of the so-called enmity but essentially these are two remote and do not inspire confidence so as to brush aside the impact of evidence which has rightly been relied upon by the learned trial court.
15. In addition to ocular account, we have also noticed evidence of Doctor Tanveer Afsar Malik, (PW.9), who conducted autopsy on the dead body of Rehmat Ali, deceased. The evidence of this witness lends support to the oral evidence which has been found to be convincing and reliable. He has observed a single injury on right hypochondrium right side of umbilicus and opined that the probable cause of death was shock of hemorrhage due to this injury, which was sufficient to cause death in ordinary course of nature. The aforementioned opinion of the doctor confirms the weapon used by the appellant during the occurrence. Thus, the medical evidence taken from any angle is absolutely in line with the ocular account. In the backdrop of such a situation, we have noticed that statement of the doctor made before the learned trial court although subjected to cross examination by the defence but nothing helpful to the defence could be extracted from the same.
Post-mortem Examination Report fully corroborates the ocular account regarding nature of injuries, weapon of offence used by the appellant and locale of injuries sustained by the deceased, thus, the medical evidence has provided full corroborative support to the ocular account in this case.
16. No casing was secured from the spot, however, gun P.10 recovered at the instance of the appellant was found with a spent cartridge in the chamber; both were dispatched through Muhammad Akram, 500/c (PW.1) to the Punjab Forensic Science Laboratory and there is a positive report being relied upon by the prosecution to corroborate ocular account. Occurrence took place on 17-10 2005 and gun P.10 with a spent cartridge in its chamber was recovered on 03-11-2005, we are at lost to understand as to why the appellant kept gun with him without ejecting the casing for such a long time. Apparently, there is no explanation for that, does not exclude the possibility as suggested by the learned counsel for the appellant that the casing was fabricated to secure a positive report. In this view of the matter, we held the recovery as inconsequential.
Though, awfully fatal, it is a case of single shot; there is nothing on the record which even obliquely suggests that anything impeded the appellant to repeat fire shot.
17. So far as motive alleged in the crime report is concerned, there is a reference to a quarrel preceding the incident, same day at 12.00 noon between Munawar Hussain (PW.8) and Muhammad Aslam. Munawar Hussain (PW.8) claims to be present at the spot during the occurrence he remained unscathed. In this backdrop, it is mind boggling as to why the person centre of the controversy was spared. This renders motive as beside the mark.
18. From the aforementioned reasons, we are of the opinion that the prosecution has successfully proved its case through confidence inspiring ocular account furnished by Muhammad Mehrban (PW.12), Ahmad Din (PW.13) and Munawar Hussain (PW.8), which is strongly corroborated by medical evidence, motive and the result of investigation, that has led to us an irresistible conclusion that learned trial court has rightly convicted Muhammad Aslam, appellant through the impugned judgment.
19. Now coming to the quantum of sentence awarded to the appellant, we have noted certain mitigating circumstances in his favour calling for reduction in quantum of his sentence. FIRSTLY, the recovery is inconsequential. SECONDLY, we are of the view that on the fateful day at 12.00 noon quarrel took place between Munawar Hussain (PW.8) and Muhammad Aslam appellant/accused and not with the deceased Rehmat Ali. THIRDLY, on the same set of evidence co-accused Khadim Hussain was acquitted by the learned trial court and FOURTHLY, it was a case of single blow and the shot was not repeated. Therefore, in our opinion alternate sentence of imprisonment for life to Muhammad Aslam (appellant) shall meet the ends of justice. We have also fortified our view qua the quantum of sentence by the case reported as Ghulam Mohy-ud-Din alias Haji Babo and others Ys. The State (2014 SCM R 1034) and Sharafat Ali Khan vs. The State (2010 SCM R 1205), wherein the Hon'ble Supreme Court of Pakistan has observed as under:- "In Muhammad Riaz and another v. The State (2007 SCM R 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 the 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 SCM R 502)."
20. For what has been discussed above, the conviction PPC for the murder of Rehmat Ali, deceased is maintained, however, his sentence is altered from death to rigorous imprisonment for life. The amount of compensation imposed upon him and imprisonment in default thereof is also maintained. He is awarded the benefit of section 382 (B) Cr.P.C.
21. Consequently, with the above modification Crl. Appeal No.22-J of 2011 filed by the appellant is hereby dismissed.
22. Murder Reference No.24 of 2011 is answered in negative and sentence of death awarded to Muhammad Aslam (convict) is not confirmed.