' MUHAMMAD TARIQ ABBASI, J.---Through the above titled appeal, Zulfiqar Zulli (hereinafter referred to as the appellant) has challenged his conviction and sentence, awarded to him through the judgment dated 6.6.2011, passed by the learned Sessions Judge, Chiniot, whereby in case FIR No. 790, dated 24.9.2009, registered under sections 302/324, P.P.C., at Police Station Saddar Chiniot, the appellant has been convicted and sentenced as under:-
(i) Under section 302(b), P.P.C. - to death, with compensation of Rs. 2,00,000/-, payable to legal heirs of the deceased, in default to undergo simple impn'sonment for six months.
(ii) Under section 324, P.P.C. - rigorous imprisonment for 10 years and fine of Rs.50,000/-, in default whereof to undergo simple imprisonment for one year.
It was directed that the appellant shall be entitled to the benefit of section 382-B, Cr.P.C.
2. The State, through the above mentioned Murder Reference has sought confirmation of death sentence, awarded to the appellant. Therefore, this judgment shall decide the above captioned matters.
3. The facts, in short, which resulted into registration of FIR (Ex.PD), were that Ameer Ali (PW-8) had moved an application (Ex.PD/1) in the Police Station, contending therein that the appellant, with .30 bore pistol, made firing and caused an injury to Atif Ali (hereinafter referred to as the deceased) and also to Walait Ali (PW-9);- consequently Atif Ali succumbed to the injury in the way to hospital, whereas Walait Ali (PW-9) was admitted in the hospital. The motive, as alleged in the compliant, was a quarrel between the appellant and the deceased as well as Walait Ali (PW-9) over playing Snooker.
4. The appellant was challaned to the court. Formal charge against him was framed on 5.1.2010. He pleaded not guilty and claimed the trial. Hence, the prosecution evidence was summoned and recorded by the learned Trial Court. As many as 11 witnesses had made statements. The material witnesses and summary of their evidence were as under:-
(i) PW-2 Dr. Muhammad Arshad, had conducted postmortem examination of dead body of Atif Ali on 24.9.2009 and prepared the report (Ex.PA), when a fire shot entry wound on back side of head, whereas an exit wound on right eye brow of the deceased was noticed. Both the injuries were ante-mortem in nature, caused by firearm and result of death.
(ii) PW-6 Dr. Siraj-ud-Din, had medically examined Walait Ali, injured (PW-9), when a firearm wound on his neck was noticed.
(iii) PW-8 Ameer Ali, was the complainant as well as an eye-witness of the alleged occurrence, who deposed almost the same facts as were described by him in the complaint (Ex.PC/1).
(iv) PW-9 Walait Ali injured had supported the version of the above named complainant (PW-8) in all its four corners.
(v) PW-10 Jaffer Ali, SI had investigated the case, during which he carried on the proceedings and prepared the documents, fully detailed in his statement.
5. After completion of the prosecution evidence, the appellant was examined under section 342, Cr.P.C., during which the questions, arising out of prosecution evidence were put to him, but he denied almost all such questions, while pleading his innocence and false involvement in the case with mala fide. The question "Why this case against you and why the PWs deposed against you?" was replied by him in the following words:- "PWs are related inter se and are inimical towards me as the PWs were always voting in favour of Ex-MNA Zafar Abbas Syed, who was always in a position to snub me and my family, due to which this case was falsely registered against me."
At that time, he opted to lead evidence in his defence, but refused to make statement under section 340(2), Cr.P.C. Later on, through statement dated 3.5.2011, he also declined to lead any evidence in his defence. On completion of all the proceedings, the impugned judgment was passed in the above mentioned terms. Consequently, the matters in hand.
6. The learned counsel appearing on behalf of the appellant argued that appellant was innocent and falsely involved in the case, with mala fide; neither he was available at the spot nor participated in the alleged occurrence, in any manner whatsoever and as such his involvement was a substitution; the statement of the material witnesses being full of alarming contradictions were not believable, but erroneously not considered by the learned Trial Court; the medical evidence had not supported the ocular account, but ignored by the learned Trial Court; eye- witnesses being closely related inter se as well as with the deceased had made false statements; the prosecution case and the charge against the appellant was not established and proved, hence he was entitled to acquittal and as such the impugned judgment could not be termed justified.
7. Conversely, the learned District Public Prosecutor, assisted by the learned counsel for the complainant has vehemently opposed the appeal, with the contentions that the impugned judgment towards conviction and sentence of the appellant being result of correct appreciation and evaluation of the material available on the record, is call of the day, hence not interferable.
8. Arguments of all the sides have been heard and record has been perused.
9. Ameer Ali, complainant, when appeared in the witness box as PW-8, categorically deposed that when he along with Munir Ahmad and Muhammad Nawaz (given up PWs), to inquire about his son Atif Ali (deceased), reached near Government Boys Primary School, the deceased and Walait Ali (PW-9) were found there; in the meanwhile, the appellant while holding .30 bore pistol attracted there and fired at the deceased and the shot landed on his forehead above right eye brow, which passed through and through; another fire shot made by the appellant hit Walait Ali (PW-9) on right side of his neck; consequently, both fell down and when were being shifted to Allied Hospital, Faisalabad, Atif Ali succumbed to the injury, whereas Walait Ali (PW-9) was got admitted there.
Walait Ali (PW-9) while supporting and corroborating the above said version of the complainant (PW-8), confidently stated that when he along with the deceased was available at the spot, the appellant while, armed with a pistol, arrived there and by firing, caused injuries to him and the deceased; the injury to the deceased proved fatal and consequently, he died.
10. The statements of the above named witnesses, regarding involvement of the appellant for commission of murder of Atif Ali and injury to Walait Ali (PW-9) are consistent, corroborative and confidence inspiring. The defence has failed to contradict their above mentioned stance or bring on the record any other material, favourable to the appellant. Even during cross-examination, presence of the above named witnesses at the spot has not been denied.
11. No material contradiction in the statements of the above named witnesses has either been pointed out by the learned defence counsel or observed during perusal of the record. Therefore, the stance of the learned defence counsel that the statements of the witnesses are full of material contradictions, is nothing but a bald assertion. Although some minor discrepancies in statements of the witnesses have been noticed, but the same being casual in nature and sign of natural deposition, should not be taken into account. In this regard, we are fortified by the law laid down in the case titled "Dilbar Masih v. The State" reported as (2006 SCM R 1801), the relevant portion of which reads as under:- "We find that the ocular account would also be supported by the medical evidence to the extent of sustaining the fire-arm injury by the deceased at the hand of petitioner and in these circumstances, the minor discrepancies and contradictions pointed out by the learned counsel for the petitioner would not be material either to effect the credibility of the evidence of eyewitness or create any doubt or dent in the prosecution case."
12. Ameer Ali, complainant (PW-8) is real father of the deceased, whereas no direct relationship of Walait Ali (PW-9) with the complainant could be brought on the record. Even otherwise, as no previous enmity or grudge of the witnesses, with the appellant could be established on the record, therefore, their inter se relationship, if any, would not discard their testimony, which otherwise is trustworthy and confidence inspiring. In this respect, reference may be made to the case titled "Haji v. The State" reported as 2010 SCM R 650, wherein the Hon'ble Supreme Court of Pakistan has held as under:- "Both the ocular witnesses undoubtedly are inter se related and to the deceased, but their relationship ipso facto would not reflect adversely against the veracity of the evidence of these witnesses in absence of any motive wanting in the case, to falsely involve the appellant with the commission of the offence and there is nothing in their evidence to suggest that they were inimical towards the appellant and mere inter se relationship as above noted would not be a reason to discard their evidence, which otherwise in our considered opinion is confidence- inspiring for the purpose of conviction of the appellant on the capital charge being natural and reliable witnesses of the incident."
13. In the complaint (Ex.PD/1), Ameer Ali (PW-8) had narrated the alleged motive as a quarrel between the appellant, deceased and Walait Ali (PW-9) for playing Snooker, but when the above named complainant and the injured witness appeared in the witness box, failed to state any kind of motive, hence the motive alleged in the complaint remained unestablished and un-proved.
14. It has been observed that the above named PWs stated that the deceased had sustained a fire shot injury on his forehead, near right eye brow but during the postmortem examination, it revealed that in fact, the said injury was an exit wound, whereas the entry wound was back side of the head.
The said variation in ocular account and medical evidence would not adversely affect the prosecution case, because the witnesses were not supposed to give photographic picture of the injuries. Our said view has gained support from the dictum laid down by the august Supreme Court of Pakistan in the cases titled "Abdul Rauf v. The State and another" (2003 SCM R 522); "Ellahi Bukhsh v. Rab Nawaz and another" (2002 SCM R 1842) and "Ghulam Ullah and another v. The State and another" (1996 SCM R 1887). The relevant para of the case of "Abdul Rauf (Supra)" reads as under:- "We may observe that the minor discrepancies in the medical evidence relating to the set of injuries would also not negate the direct evidence as the witnesses are not supposed to give photo picture of each detail of injuries in such situation, therefore, the conflict of nature of ocular account with medical as pointed out being not material would have no adverse affect on the prosecution case."
15. Recovery of a pistol at the instance of the appellant has been alleged, but admittedly from the spot, no empty was collected, hence no comparison was made. Therefore, the said recovery has not given much benefit to the prosecution.
16. For what has been discussed above, we are of the considered view that the findings of the learned Trial Court, recorded in the impugned judgment, resulting into conviction of the appellant for commission of offence under section 302(b), P.P.C. Are quite justified. Similarly, the conviction and sentence awarded to the appellant in charge under section 324, P.P.C. Being call of the day, is not interferable, hence maintained. As about quantum of sentence, awarded to the appellant under section 302(b), P.P.C., it is stated that the motive alleged by the prosecution, in the complaint could not be proved and established. Furthermore, the deceased sustained only one fire shot injury at the hands of the appellant. The said facts, in our view, are sufficient to give premium to the appellant in quantum of sentence. It is well-recognized principle, by now that an accused is entitled for benefit of doubt as an extenuating circumstance, while deciding question of quantum of his sentence as well. In this regard, reference may be made to the cases titled "Hasil Khan v. The State and others" (2012 SCM R 1936) and "Abid Ali and 2 others v. The State and others (2014 SCM R 1034), wherein the august Supreme Court of Pakistan has held that if motive is alleged and not proved, it would be a mitigating circumstance to award lesser punishment to an accused. The relevant portion of the judgment is reproduced herein below:- "........Moreover, as rightly observed by the leaned Trial Cour the immediate motive remained shrouded in mystery and the Trial Court rightly did not award the maximum sentence of death provided under section 302(b), P.P.C. To the appellant. The enhancement of sentence by the learned High Court, we observe with respect, is not in accord with the law laid down by this court in Muhammad Ashraf Khan Tareen v. The State (1996 SCMR 1747) wherein at page 1755, the Court dismissed complainant's appeal and did not enhance the sentence by holding as follows:- "In respect of sentence, learned counsel for the complainant/State wanted conversion of the life imprisonment into death sentence. Learned counsel cited case of lftikhar Ahnlad v. The State (PLD 1990 Supreme Court 820) where criminal petition by the complainant challenging reduction of sentence by the High Court, was dismissed by this Court on the ground that the principle of origin of offence remained shrouded in mystery. This authority does not further prayer of the complainant for awarding death penalty to the appellant. In the present case prosecution did not allege any specific motive for commission of the offence. In the circumstances, the appellant could not have been awarded the death penalty."
17. Resultantly, the conviction of the appellant awarded by the learned Trial Court under section 302(b), P.P.C. Is maintained, but his sentence is altered from death to life imprisonment. The amount of compensation and imprisonment in its default, prescribed by the learned Trial Court is upheld. As stated above, the conviction and sentence of the appellant awarded under section 324, P.P.C., through the above mentioned judgment shall remain intact. The appellant shall be entitled to the benefit of section 382-B, Cr.P.C. It is also directed that both the above mentioned sentences shall run concurrently. The disposal of the case property shall be as directed by the learned Trial Court, in the impugned judgment.
18. With the above mentioned modification, the Criminal Appeal No. 44/2011 is dismissed, whereas Murder Reference No.271/2011 is answered in Negative and death sentence of Zulfiqar @ Zulli appellant is not confirmed.