' SHEHRAM SARWAR CH., J.---Abid Masih (appellant) was tried by the learned Addl. Sessions Judge, Daska in case FIR No,483 dated 05.10.2011, offence under sections 302 and 34, P.P.C., registered at Police Station Motra District Sialkot for the murder of Ali Hassan (deceased) brother of complainant.
Vide judgment dated 28.11.2013 passed by the learned Addl. Sessions Judge, Daska, Abid Masih (appellant) has been convicted under section 302(b), P.P.C. And sentenced to death, with a further direction to pay Rs,2,00,000/- (rupees two lakh only) as compensation under section 544-A, Cr.P.C.
To the legal heirs of deceased and in default whereof to further undergo simple imprisonment for one year. Assailing the above conviction and sentence, the appellant has filed the appeal in hand whereas the learned trial court has sent Murder Reference No,417 of 2013 for confirmation or otherwise of appellant's sentence of death, as required under section 374, Code of Criminal Procedure. Since both these matters have arisen out of the same judgment, therefore, shall be decided together through this single judgment.
2. Prosecution story, as set out in the FIR (Ex.PA) registered on the statement (Ex.PH) of Suleman David, complainant (PW.11) is that on 05.10.2011, he along with his mother Razia Bibi was sleeping on the rooftop of house whereas his brother Ali Hassan aged about 25/26 years was sleeping in the room. At about 1.30 a.m. (night), the complainant and his mother heard noise from lower portion, they came downstairs immediately and witnessed Abid (appellant) cutting throat of Ali Hassan with chhurri. One unknown person was also standing nearby and on seeing the complainant party, both of them fled away. Ali Hassan brother of complainant succumbed to the injuries within their view.
' Motive behind the occurrence as alleged in the FIR was that Abid Masih (appellant) suspected that Ali Hassan (deceased) has illicit relations with his maternal niece (bhanji).
3. After completion of investigation, report under section 173, Code of Criminal Procedure was submitted in the case. Abid Masih (appellant) was summoned by the learned Addl. Sessions Judge, Daska to face the trial. Copies of relevant documents were provided to him, as required under section 265-C, Code of Criminal Procedure and formal charge under sections 302 read with section 34, P.P.C. Was framed against him on 25.07.2012, to which he pleaded not guilty and claimed trial. After the closure of prosecution evidence, statement of the appellant under section 342, Code of Criminal Procedure was recorded on 23.11.2013, wherein he refuted all the allegations of the prosecution and professed his innocence. In answer to a question as to why the case against him and why the prosecution witnesses had deposed against him, the appellant stated as under:- "Ali Hassan deceased was my close friend. He embraced Islam. The family of Ali Hassan apprehended that I had convinced Ali Hassan deceased and Asima Bibi to embrace Islam and got contracted their marriage after their conversion to Islam, due to which his family was unhappy with me, inspite of the fact that I myself am still a Christian. Due to conversion of Ali Hassan from Christianity to Islam his family was also annoyed with him. Thus, Ali Hassan was murdered by his own family and I was made scapegoat by his family. They deposed against me due to their relationship with the deceased."
' The appellant neither opted to appear as his own witness, in disproof of the allegations levelled against him, as provided under section 340(2), Code of Criminal Procedure nor did he produce any defence evidence. However, after conclusion of trial, the learned trial court convicted and sentenced the appellant as detailed above. Hence this appeal and murder reference.
4. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that there is a delay of about half an hour in the registration of FIR and no plausible reason for such delay 'has been assigned in the FIR or disclosed before the learned trial court; that the story of prosecution is highly improbable and presence of witnesses of ocular account namely Mst. Razia Bibi (PW.10) and Suleman David, complainant (PW.11) at the place of occurrence at relevant time is of doubtful nature as they were sleeping on the rooftop of house; that a vague motive has been set out in the FIR as well as brought before the learned trial court which has not been proved; that the prosecution case is not supported by the medical evidence; that the alleged recovery of chhurri (P2) at the instance of the appellant is inconsequential as it was secured from an open place and even it was not mentioned in the recovery memo that the chhurri was blood stained; that the version of the appellant is more probable, convincing and even gets full support from the prosecution's own case; that viewing from all angles, the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
5. On the other hand, learned Deputy Prosecutor General vehemently opposes this appeal on the grounds that there was no conscious or deliberate delay in reporting the crime to the police; that Mst. Razia Bibi (PW.10) and Suleman David, complainant (PW.11) have no enmity with the appellant to falsely implicate him in this case; that the eye-witnesses have reasonably explained their presence at the spot at relevant time which is quite natural and probable; that the medical evidence is in line with the ocular account; that the prosecution has proved its case to the hilt against the appellant, which is further corroborated by the recovery of blood stained chhurri (P2) and positive reports of Chemical Examiner (Ex.PQ) and Serologist (Ex.PQ/1); that the version of the appellant is nothing but an afterthought; that the prosecution has successfully brought home guilt against the appellant beyond any shadow of doubt and there is no merit in this appeal.
6. We have heard arguments of learned counsel for the appellant as well as learned Deputy Prosecutor General for the State to their entire satisfaction, given serious consideration to their respective submissions and also perused the record.
7. This unfortunate incident wherein Ali Hassan brother of complainant lost his life, took place on 05.10.2011 at around 1.30 a.m. (night) in the house of complainant situated in Mauza Jamkey Cheema, within the jurisdiction of Police Station Motra District Sialkot. The matter was reported to the police through statement (Ex.PH) of Suleman David, complainant (PW.11) on the same night at 2.00 a.m. i,e, after half an hour of the incident and formal FIR (Ex.PA) was got registered at 2.15 a.m.
(night). Distance between the place of occurrence and the police station is three kilometers.
Postmortem examination of the dead body of Ali Hassan (deceased) was conducted on the same day at 10.00 a.m. Duration between the death and post mortem examination as noted by Dr. Shaukat Ali Bhatti (PW.9) was 08 to 16 hours, which coincides with the time of occurrence given by the prosecution. Therefore, considering overall circumstances of the case, it can safely be concluded that the matter was reported to the police with due promptitude.
8. The ocular account has been furnished by Mst. Razia Bibi (PW.10) and Suleman David, complainant (PW.11). This incident took place in the house of complainant, which has not been disputed by the defence. Both the witnesses of ocular account are residents of the same house and they have reasonably explained their presence at the spot at the time of occurrence by stating that on the night of incident, they were A sleeping on the rooftop of house whereas Ali Hassan (deceased) was sleeping in the room and on hearing the noise, they came down to the room of Ali Hassan (deceased), where they witnessed that Abid Masih (appellant) slit the neck of deceased. Therefore, presence of both the eyewitnesses in their own house at the time of incident (midnight) is quite natural and probable. It is a case of single accused so far as the actual incident of killing the deceased is concerned. Even otherwise substitution in such like cases is a rare phenomenon as the complainant would not implicate an innocent person by letting off the real culprit. The eye-witnesses were subjected to lengthy cross-examination but they remained consistent on material aspects of the case and nothing favourable to the defence could be extracted. Therefore, we hold that the witnesses of ocular account namely Mst. Razia Bibi (PW.10) and Suleman David, complainant (PW.11) were present at the spot and had witnessed the occurrence.
9. The motive as set out in the FIR and brought before the learned trial court was to the effect that Abid Masih (appellant) suspected that Ali Hassan (deceased) has illicit relations with his maternal niece (bhanji). The name of maternal niece (bhanji) of the appellant has not been mentioned in the FIR or disclosed during examination-in-chief of Mst. Razia Bibi (PW.10) and Suleman David, complainant (PW. 11). However, Mst. Razia Bibi (PW.10) during cross-examination stated that only she knows sister of Abid Masih (appellant) who is mother of Asima Bibi as she had been living in a rented house in their neighbourhood. She (PW.10) further stated that since Asima Bibi was residing with her parents in their neighbourhood, so it was in their knowledge that Abid Masih (appellant) was her mamu. Suleman David, complainant (PW.11) has also admitted during cross-examination that the name of his bhabhi is Asima Bibi and his deceased brother contracted marriage with her about two months prior to his murder. We have observed that a vague motive has been introduced by the prosecution which is based on oral assertion. No independent witness qua motive was produced during investigation or before the learned trial court. Therefore, in our view, the prosecution has not been able to substantiate the motive.
10. In the FIR and before the learned trial court, the case of complainant was that the appellant cut the neck of Ali Hassan (deceased). Dr. Shaukat Ali Bhatti appeared before the learned trial court as PW.9, who stated that he conducted postmortem examination of the dead body of deceased and found four incised wounds on the neck and chest of the deceased, caused by sharp edged weapon. As per opinion of the doctor, injuries Nos.1 and 2 (on neck) were fatal injuries causing damage to major blood vessels of the neck. Same injuries are available in the postmortem examination report (Ex.PG to PG/2) of the deceased. Therefore, we hold that ocular account is fully supported by the medical evidence.
11. As far as recovery of chhurri (P2) allegedly effected at the instance of the appellant, which was taken into possession vide recovery memo (Ex.PF) and positive reports of Chemical Examiner (Ex.PQ) as well as Serologist (Ex.PQ/1) are concerned, the same are inconsequential because of the reasons that the chhurri was got recovered from canal bridge of Jamkey Cheema, which is an open place and accessible to everyone. Moreover, there is no mention in the recovery memo (Ex.PF) that the chhurri was blood stained.##TE#
12. Now we take up the version of the appellant disclosed by him in his statement recorded under section 342, Code of Criminal Procedure, reproduced in para 3 above. The appellant neither opted to appear as his own witness in disproof of the prosecution allegations as provided under section 340(2), Code of Criminal Procedure nor he produced any evidence in his defence. Considering the above circumstances, it is concluded that the appellant has failed to prove his version and learned trial court has rightly discarded the same with sufficient reasons.
13. From the above circumstances, we are of the considered view that even if the evidence of motive and the recovery of chhurri (P2) at the instance of the appellant is excluded from consideration, there is sufficient incriminating evidence on the record against him in the form of straightforward and confidence inspiring ocular account furnished by Mst. Razia Bibi (PW.10) and Suleman David, complainant (PW.11), fully supported by the medical evidence i,e, statement of Dr. Shaukat Ali Bhatti (PW.9) and postmortem examination report (Ex.PG to PG/2), to maintain conviction of the appellant under section 302(b), P.P.C., which is accordingly maintained. However, it is not a case of capital punishment because of the reasons: (i) the motive set up by the prosecution has not been believed by us and (ii) the alleged recovery of chhurri (P2) at the instance of the appellant has not been proved.
14. All the above facts of the case lead us to the conclusion that there are sufficient extenuating circumstances, on the basis of which the appellant could not be made liable to the maximum punishment provided under section 302(b), P.P.C., rather the ends of justice would be met, if his death sentence is converted into imprisonment for life. In this regard, we respectfully refer the case titled as "Mir Muhammad alias Miro v. The State" (2009 SCM R 1188) wherein the Hon'ble Supreme Court of Pakistan has held as under:- "9. 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 case titled as "Muhammad Riaz and another v. The State and another" (2007 SCM R 1413) decided by the Hon'ble Supreme Court of Pakistan, it was held as follows:- "No doubt normal penalty for an act of commission of Qatl-i-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."
' Therefore, while maintaining the conviction under section 302(b), P.P.C., we alter the sentence of Abid Masih (appellant) from death to imprisonment for life. The amount of compensation imposed upon the appellant as ordered by the learned trial court is maintained with the modification that in default of payment of compensation amount, the appellant shall undergo six months simple imprisonment instead of one year. Benefit of section 382-B, Code of Criminal Procedure is extended to the appellant. The appeal in hand stands dismissed with the above modification in the quantum of sentence.
15. Murder Reference No,417 of 2013 is answered in the NEGATIVE and the sentence of death awarded to Abid Masih (convict) is NOT CONFIRMED.