' RAJA SHAHID MEHMOOD ABBASI, J.---Through this Criminal Appeal under Section 410, Cr.P.C.
Ahmed Ali, appellant has called in question judgment dated 27th of June, 2015 handed down by learned Additional Sessions Judge, Chakwal wherein the appellant was convicted under Section 302(b), P.P.C. For causing the death of Mst. Uzma Batool and was sentenced to undergo imprisonment for life. He was also ordered to pay compensation of Rs,1,00,000/- to the legal heirs of deceased under section 544-A, Cr.P.C. Or in default in payment thereof to further undergo simple imprisonment for six months. He was given benefit of section 382-B, Cr.P.C.
2. Brief facts of the case are as narrated by Muhammad Ali, complainant (PW.5) before Muhammad Akram, S.I./I.O.(PW.9) are that he was resident of village Haral and was labourer by profession. About one and half years prior, he contracted marriage with his paternal cousin- namely Mst. Uzma Batool. His father who was engaged in the business of Hoteling for the last 15 years in Karachi and when he wind up his business from Karachi, a boy namely Ahmad Ali, aged 20 years also accompanied him. The father of the complainant claimed the said boy to be his son, who was presently residing with him but due to some dispute said parental uncle had ousted him from his house due to which he started residing with in complainant's house since last some time.
On 16-06-2013, said. Ahmad Ali, appellant/accused went out from house and returned at about 10.30 am, when he (complainant) along with Saleem Akhtar and his wife were present in the house.
Ahmad Ali, appellant/accused asked his wife that due to her, Toraiz, his paternal uncle has expelled him from his house and at the same time he took out pistol .30 bore and directly fired at his wife Uzma Batool, which landed at her chest near the neck which went through and through and she died at the spot. The accused Ahmad Ali after achieving his nefarious design while brandishing pistol in his hands took to his heals.
' Motive behind the occurrence, as stated by the complainant was a conflict of demand of hand of sister-in-law of the complainant by Ahmad Ali, accused due to which he accused committed murder of Mst. Uzma Batool, wife of the complainant.
3. Muhammad Akram, S.I./I.O. (PW.9) after receiving the information of incident reached at the spot and got recorded complaint .(Ex.PD). He after endorsing his proceedings sent the same to Police Station, on the basis of which FIR (Ex.PD/2) was registered by Tanveer Azam, SI (PW.7); he inspected the dead body and prepared application for post mortem (Ex.PJ). He inspected the place of occurrence; prepared rough site plan (Ex.PK). He also secured blood from the spot through cotton and one empty, both were taken into possession vide recovery memo (Ex.PE) and (Ex.PF) respectively. He recorded the statements of PWs. After the arrest of the accused by Khalid Mehmood, SI (PW.10), he was remanded to judicial custody.
4. After completion of investigation, the challan was prepared and submitted before the trial court against the appellant. The trial court after observing codal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against him to which he pleaded not guilty and claimed trial.
' The prosecution produced as many as 11 witnesses to bring home the guilt of accused. The ocular account was furnished by Muhammad Ali, complainant (PW.5) and Saleem Akhtar (PW.6).
Muhammad Munir, draftsman appeared as (PW.4), who prepared scaled site plan in duplicate (Ex.
PC) & (Ex . PC/1). Muhammad Akram, SI (PW.9), Khalid Mehmood, SI (PW.10) and Adalat Khan, SI (PW.11) were the Investigating Officers of instant case, who stated about the various steps taken by them during investigation of the case.
' The autopsy on the dead body of deceased Uzma, Batool was conducted by Doctor Munnaza Feroz, (PW.3) who observed following injuries on her body:-- INJURIES
1. A circular wound about 01.2 x 1.1 cm with black margins at medial end of right clavical, cavity deep and cavity was full of blood and internal structures were found perforated.
2. A circular wound about bigger than injury No,1 with everted margins at back of chest 01 inch from midline on right side and 05 inches from the base of neck.
' In the opinion of the doctor all injuries were caused with firearm and were ante mortem. Death was due to haemorrhage of major vessels in the neck. Probable time that elapsed between injury and death within few minutes whereas between death and post mortem was 5 to 5 and half hours.
5. The prosecution after tendering in evidence reports of Forensic Science Agency (Ex.PK) and FSL pertaining to Serologist (Ex.PL) closed its evidence.
6. The statement of the appellant under section 342 of Code of Criminal Procedure, 1898 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?" Ahmad Ali, appellant replied as under:-- "I am step-brother of complainant. The complainant and his family never recognized me as a brother or a son of my father. The complainant after the death of my father, occupying the whole property of my father. On my demand of my legal share in the inherited property of my father, the complainant got registered this false case just to deprive me from my legal share.
Complainant himself murdered his wife and leveled false accusation on me. I am innocent. "
' The appellant neither opted to appear under Section 340(2) of Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him by the prosecution, nor produced any defence evidence.
7. After conclusion of the trial, the appellant was convicted and sentenced as noted hereinabove, by the learned trial court, hence this criminal appeal before this Court.
8. The learned counsel for the appellant, contended emphatically that factual and legal aspect of the case have not been appreciated in its true perspective which resulted in grave miscarriage of justice; that the FIR in this case was recorded after due deliberations and consultations; that the eye-witnesses produced by the prosecution are in fact chance witnesses; that there are glaring 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 namely Muhammad Ali, complainant (PW.5) and Saleem Akhtar (PW.6) are inter see related and interested witnesses; that the alleged recovery of crime weapon at the instance of the appellant is inconsequential; that the motive is also not proved against the appellant; both the eye-witnesses are not trustworthy and 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 accused not as a matter of grace but as a matter of right. It is further contended that medical evidence was in conflict with ocular version which aspect of the case has not been dilated upon properly but on the contrary medical evidence is misconstrued and the oral version has not been appreciated thoroughly; that this appeal may be accepted, conviction and sentence of the appellant may be set aside, he may be acquitted of the charge.
9. Conversely, learned Deputy Prosecutor General: assisted by the learned counsel for the complainant vehemently opposed the contentions raised by the learned counsel for the appellant and, inter alia, maintain that the ocular account is well corroborated by medical evidence; that the eye-witnesses of the occurrence have fully supported the prosecution case; that as the parties are well known to each other, therefore, there is no chance of misidentification; that the presence of eyewitnesses at the place of occurrence is natural and also proved the motive part of the occurrence; that the prosecution has proved its case against the appellant beyond any shadow of reasonable doubt. Finally, prayed that the appeal may be dismissed.
10. I have heard the arguments of learned counsel for the appellant, Deputy Prosecutor General assisted by learned counsel for the complainant and also scanned the record with their assistance.
11. Perusal of record would reveal that the incident in this case took place on 16-06-2013 at 10.30 am in the area of Haral within the territorial jurisdiction of Police Station, Choa Saidan Shah, whereas matter was reported by the complainant, Muhammad Ali (PW.5) to Muhammad Akram, S.I./I.O.
(PW.9), who sent the same to police station for registration of formal FIR. The FIR (Ex.PD/2) was recorded by Tanveer Azam, SI (PW.7) on the same day at 1.15 p.m., whereas the police station is about twenty one kilometers from the place of occurrence. Considering the time of incident, the place of occurrence and the manner in which occurrence took place and distance from the police station, I am of the view that there was no delay in reporting the matter to police and it is case of promptly lodged FIR, which rules out the possibility of due deliberation and false implication.
12. The case of the prosecution mainly rests upon the ocular account furnished by prosecution in the shape of statements of Muhammad Ali, complainant (PW.5) husband of deceased Mst. Usma Batool and Saleem Akhtar (PW.6), the eye-witness, medical evidence furnished by Doctor Munnaza Feroz (PW.3), recovery of weapon of offence i,e, 30 bore pistol (P5) from Ahmad Ali, appellant/accused, lastly the evidence of motive.
13. At first, I would like to discuss the ocular account furnished by the prosecution in this case. It has been observed by me that while appearing before the learned trial court as (PW.5) Muhammad Ali, complainant has reiterated the same facts and leveled the same allegations against the appellant in a mode and manner as he mentioned in his statement (Ex.PD) before the police and on the basis whereof FIR (Ex.PD/2) was chalked out. The other eyewitnesses i,e, Saleem Akhtar (PW.6) had also supported the stance taken by Muhammad Ali, complainant in the FIR (Ex.PD/2) as well as in his statement recorded before the learned trial court as (PW.5). Admittedly, the place of occurrence is the house of complainant. Both the eye-witnesses have made consistent statements regarding involvement of the appellant in the present case. It has been established on record that on the fateful day, Muhammad Ali, complainant (PW.5) along with his wife Mst. Uzma Batool and Saleem Akhtar (PW.6) was present at his house, when Ahmad Ali, appellant/accused in their presence pulled out pistol 30 bore from his dub and made a straight fire shot upon said Mst. Uzma Batool, which landed at her chest near neck, which went through and through, she fell down and succumbed to the injuries at the spot. Muhammad Ali, complainant (PW.5) being inmate of the house and Saleem Akhtar (PW.6) their close relative are natural witnesses and their presence at the spot at the relevant time of occurrence cannot be doubted and they have sufficiently accounted for their presence at the spot. Both the eye-witnesses have made consistent statements before the trial court and their credibility cannot be shaken during searching cross- examination. The name of the eye-witnesses and role of appellant/accused for firing at the deceased had been mentioned therein, which is fully corroborated by the medical evidence, which proves the fact that the deceased died by firearm injuries. ##T## The appellant being adopted son of Touraiz, paternal uncle of the complainant and presently residing at the same house was well known to them. The mere fact that the eye-witnesses remained unheard or there are minor discrepancies in their statements, cannot be considered as sufficient ground for discrediting their evidence. Reliance in this respect can safely be placed on the esteemed judgment of Hon'ble Supreme Court of Pakistan in case reported as lqbal alias Bhala v. The State (1994 SCM R 1).
' Moreover, they have further corroborated with each other on all material aspect of the case and their evidence is not only straightforward but the same also inspired my confidence. Even otherwise, law does not permit the Court to choose few sentences from the evidence and base its decision in favour of defence while reading only those sentences in isolation to the remaining evidence available on the record.
14. The appellant/accused has taken the plea that in fact complainant himself murdered his wife and in order to usurp the property of his father involved him in this case appears to be absurd and ridiculous. It was a daylight occurrence and neither the defence taken by the appellant spelt out from the prosecution evidence nor any evidence was led by the accused to substantiate it during the trial. Even, there was no motive alleged that as to why the complainant would murder his own better half.
15. The medical evidence of the prosecution was furnished by Doctor Munnaza Feroz (PW.3). I have observed that the medical evidence had fully supported the ocular account furnished by the prosecution in the shape of statements of Muhammad Ali, complainant (PW.5) and Saleem Akhtar (PW.6). According to the FIR (Ex.PD/2), the deceased had received firearm injuries on her body at the hands of the appellant/accused, thus, after taking into consideration the whole prosecution evidence, I have come to the conclusion that ocular account of the prosecution is in line with the medical evidence furnished by Doctor Munnaza Feroz (PW.3). The ocular evidence of the prosecution about the kind of weapon used during the occurrence and the time of incident as narrated by the eyewitnesses of the occurrence has fully tallied with the medical evidence.
16. Learned counsel for the appellant submitted that now it has been settled that courts in a case involving capital punishment will not base conviction of an accused solely on the testimony of interested witnesses unless finds corroboration by some independent and unimpeachable piece of evidence or circumstance in the case but in the present case both the eye-witnesses are quite natural and submission made by the learned counsel is not convincing one. The only reason that a witness is relative of the deceased, is not per se enough to discredit the witness unless it is established that the witness was inimical towards the accused and if it is found, that in circumstances of the case, the presence of such a witness cannot be denied, then his evidence could not be discredited. An interested witness is a person who has a motive to falsely implicate a person. Considering the testimony of these eye-witnesses on the touchstone of aforesaid criteria, I do not find their testimony to be tainted and they had any motive to falsely implicate the appellant. In this context, reference may be made to Sharafat Ali v. The State (1999 SCM R 329).
17. As far as the evidence of recovery of pistol .30 bore (P.5) recovered from deserted coal mine of Ashiq Hussain in the presence of Habib Khan, PW (given up) is concerned, same is highly doubtful and inconsequential because of the reasons that firstly, the pistol has been recovered from a place, which is easily accessible to the public at large. Moreover, recovery witness was also not examined. It is also observed that as per report of Punjab Forensic Science Agency, Lahore (Ex.PK), the crime empty secured from the place of occurrence was found to have not been fired from the pistol allegedly recovered at the instance of the appellant. So, the recovery of weapon of offence in this case has become insignificant and same is of no help to the case of prosecution.
18. So far as the motive in this case is concerned, according to the complainant (PW.5), the appellant is said to have taken the life of the wife of the complainant for a petty matter that the appellant/accused Ahmad All committed the murder as he was under the impression that due to her (deceased), Toraiz, the parental uncle of the complainant has ousted him from his house. The complainant further alleged that the motive behind the occurrence was a conflict over demand of hand of sister-in-law of the complainant. Likewise, Saleem Akhtar, (PW.6) deposed only to the extent of first part of motive i,e, desertion of accused from the house of his uncle but he remained silent about the, demand of hand of sister-in-law of the complainant. From the statements of both the witnesses, it is not clear as to what was actually bone of contention. Moreover, no further evidence was led to substantiate the motive of the occurrence. Thus. I am of the considered opinion that prosecution remained failed to prove the motive.
19. In light of above discussion and having guidance from the esteemed judgment passed by the Hon'ble Supreme Court of Pakistan in cases of Muhammad Nisar v. The State (2006 SCM R 161) and Muhammad Nadeem alias Deemi v. The State (2011 SCM R 872). I am of the considered view that even if the evidence of recovery of crime weapon at the instance of appellant and motive is excluded even then the prosecution has successfully proved its case against the appellant to the extent of murder of Mst. Uzma Batool through confidence inspiring ocular account furnished by Muhammad Ali, complainant (PW.5) and Saleem Akhtar (PW.6), which is strongly corroborated by medical evidence. The appellant had remained absconder for considerable period of one year without assigning any explanation in this regard, which alone cannot form basis for conviction but is a strong circumstantial evidence, which in this case does provide necessary corroboration to the prosecution that led the court to an irresistible conclusion that the trial court has rightly convicted the appellant through the impugned judgment.
20. Now adverting to the quantum of sentence passed against the appellant, in this context, I may observe here that it is well recognize principle by now that accused is entitled for benefit of an extenuating circumstance while deciding the quantum of his sentence. The prosecution failed to prove the motive part of the occurrence as discussed in preceding para No,18 of the judgment.
Moreover, I have held the recovery as inconsequential. It is the case of a single shot not repeated by the appellant. All these factors are taken as mitigating circumstances in favour of the appellant,' thus, the learned trial Court was well justified for not awarding capital sentence to the appellant. I, too have no option to differ with the conclusion arrived at by the learned trial court. I would like to place reliance in this regard upon the case of Sharafat Ali Khan, v. The State (2010 SCM R 1205) wherein the Hon'ble Supreme Court 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-i-amd it was observed "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. Reference in the contest may also be made to Iftikhar Ahmad Khan v. Asghar Khan and another (2009 SCM R 502)."
' In view of all above, I am of the considered view that the learned trial court has rightly convicted and sentenced the appellant under section 302(b), P.P.C. And awarded him life imprisonment. I do not find any good reason to differ with the judgment passed by the learned trial court which is based upon proper appreciation of evidence available on the record and is in accordance with the principles of appreciation of evidence set down by Horeble Supreme Court of Pakistan in this regard. I, therefore, uphold the conviction and sentence passed against the appellant, resultantly, this Criminal Appeal No, 429 of 2015 filed by the appellant is dismissed.