Syed Shahbaz All Rizvi, J.--This judgment shall dispose of Criminal Appeal No, 385-J of 2012 titled as Ali Akbar v. The State filed by the appellant against his conviction and sentence and Murder Reference No, 166 of 2011 titled as The State v. Ali Akbar sent by the learned trial Court under Section 374 of the Code of Criminal Procedure 1898 for confirmation or otherwise of sentence of death awarded to Ali Akbar (convict), being originated from the same judgment, dated 31.10.2011 passed by the learned Additional Sessions Judge, Chichawatni, District Sahiwal in case FIR No, 165 dated 16.05.2009 registered under Section 324 of Pakistan Penal Code, 1860 (Section 302, PPC was added later on) at Police Station Saddar Chichawatni, District Sahiwal whereby the appellant was convicted under Section 302 (b) of the Code ibid and sentenced to death for committing the murder of his wife Mst. Shamim with direction to pay Rs, 1,00,000/- as compensation to the legal heirs of the deceased as provided under Section 544-A of the Code of Criminal Procedure, 1898 and in default thereof, to undergo simple imprisonment for six months.
2.Precise facts of the case unfolded by the complainant Bashi. Ahmad (PW.2) in his application (Exh.PB) on the basis whereof crime report (Exh.PB/1) was registered, are that his daughter Mst.
Shamim (deceased) was married to the appellant and out of this wedlock,two daughters and three sons were born. Both the spouses used to do labour at the house of one Raja Aziz. On 14.05.2009, his daughter called him on telephone and told that the appellant used to beat her. On the following day, i,e, 15.05.2009 at 01:30 p.m. the complainant (PW.2) along with Nazir Ahmad (given up PW) and Muhammad Anwar (PW.3) went to see his daughter. When they reached there, they heard shrieks of his (complainant's) daughter from the rooms. They went inside and in their view, Ali Akbar, appellant inflicted four `churri' blows on right side of her abdomen. The complainant tried to rescue his daughter but due to threats of life extended by the appellant, did not step forward., The appellant again inflicted three injuries with his `churni' on right thigh of. Mst. Shamim and while defending herself, she also sustained `churni' blows on her right palm as well as its first and middle finger. Due to the injuries sustained by her, Mst. Shamim became unconscious whereas the appellant fled away while brandishing the `churni'. The injured was shifted to hospital where she succumbed to the injuries.
Motive as described is that the appellant used to ask the deceased to bring Rs, 50,000/- from her father, the complainant for construction of their house, which she denied.
3.After his arrest on 29.01.2010, the appellant got recovered `churni' (P. 4) at his instance which was taken into possession vide recovery memo. (Exh.PF) on 07.02.2010. The investigation culminated into submission of report under Section 173 of the Code of Criminal Procedure, 1898 before the learned trial Court. Charge was framed against the appellant to which he pleaded not guilty and claimed trial. 4.The prosecution examined as many as twelve witnesses during the trial, Bashir Ahmad, complainant (PW.2) and Muhammad Anwer (PW.3) are the eye-witnesses of the incident.
Muhammad Sharif, C/895 (PW.5) is the witness of recovery of crime weapon at the instance of the appellant. Medical evidence was furnished by Dr. Hina Amber (PW.11) who, on 15.05.2009 at 02:00 p.m. conducted medico legal examination and on 17.05.2009 at 09.45 a.m., conducted postmortem examination of Mst. Shamim and observed eleven incised wounds on the person of deceased. According to her opinion, cause of death was peritonitis and septic shock due to Injury No, 8 which was sufficient to cause death in ordinary course of nature. Probable duration between injury and death, as observed by the medical officer, was 24 to 36 hours while between death and post-mortem examination about 08 to 16 hours. Muhammad Ameen, SI (PW.8), Muhammad Tairq, SI (PW.9), Mumtaz Ahmed, SI (PW.10) and Muhammad Siddique, SI (PW.12) are the Investigation Officers of this case. Muhammad Saeed Akhtkr, Draftsman (PW.4) prepared scaled site plan of the place of occurrence (Exh.PE), whereas rest of the witnesses are formal in nature.
5.In his statement recorded uhder Section 342 of the Code of Criminal Procedure, 1898, the appellant refuted the allegations levelled against him and while replying the question that "why this case was made against you and why the PWs deposed against you" he stated us under: It is a false case. The complainant and PWs are inter-se relatives. No independent witness has been associated. Owing to enmity and personal grudge, I have falsely been involved in this case."
He neither adduced evidence in his defence nor did he opt to appear as his own witness to make statement on oath as provided under Section 340 (2) of the Code of Criminal Procedure, 1898.
6.The learned trial Court while concluding the trial, found the appellant guilty, convicted and sentenced him as mentioned above.
7.Learned counsel for the appellant contends that the appellant has falsely been implicated in this case; that there is delay of one day in lodging the crime report (Exh.PB/1); that none of the eyewitnesses was present at the scene of occurrence and their presence at the spot has been shown only to strengthen the prosecution case; that the ocular account is discrepant with the medical evidence; that there are material discrepancies in the statements of eye-witnesses; that the recovery of crime weapon is inconsequential; that motive has also not been proved in this case; that the prosecution has failed to prove its case against the appellant beyond shadow of a reasonable doubt; that this appeal may be accepted, conviction and sentence of the appellant may be set aside and he may be acquitted of the charge.
8.On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the appeal and, inter alia, maintains that the appellant could not prove mala fide or ill will on the part of the police or the complainant as well as the eye- witnesses for his false implication in this case; that there is no deliberate or conscious delay in reporting the matter to the police; that the eye-witnesses have furnished confidence inspiring and trustworthy; evidence against the appellant which is fully supported by the medical evidence as well as recovery of crime weapon and finally, craves that this appeal may be dismissed and murder reference may kindly be answered in affirmative.
9.We have heard the arguments of learned counsel for the parties as well as learned Deputy Prosecutor General and also scanned the record with their assistance.
10.The fact of medico-legal examination of deceased Mst. Shamim at 02.00 p.m. on 15.05.2009 after the occurrence that took place at 01 .30 p.m. reflects presence of the witnesses at the place of occurrence otherwise, this prompt transportation of the deceased, in injured condition, would not have been possible. So far as the delay in getting the crime report registered is concerned, we have observed that in view of the relations of the deceased and the appellant and that of the appellant with the eye-witnesses (PW-2 & PW-3) and of course, because of the priority of the complainant to save the life of his then injured daughter, this delay is not something unnatural or improbable. Even otherwise, nomination of the appellant, his son-in-law, as a sole culprit by the complainant and the eye-witnesses in this case transpires that no unchaste advantage of this delay has been derived and the delay is neither conscious nor deliberate.
11.The prosecution, in order to prove its case, through the ocular account, examined Bashir Ahmad, the complainant (PW.2) and Muhammad Anwar (PW.3), whereas the eye-witness Nazir Ahmad was given up being unnecessary. Both the eye-witnesses, i,e, Bashir Ahmad, complainant (PW.2) and Muhammad Anwar (PW.3) made consistent and unswerving statements qua the role of the appellant during the occurrence. Despite having undergone the test of cross-examination they remained stuck to their stance and the defence could not shake their confidence as nothing beneficial to the appellant could be surfaced. Though, Bashir Ahmad, complainant (PW.2) and Muhammad Anwar (PW.3) being father and paternal uncle of the deceased, are closely related to her, yet the defence, during cross-examination, has not even alleged them any motive to falsely implicate the appellant in such a case of heinous nature and keeping in view the above mentioned relationship between Mst. Shamim (deceased) and eye-witnesses, their presence at the scene of occurrence is quite natural and justified as sufficiently explained by them. Moreover, in view of the time of occurrence and relationship between the appellant and the eye-witnesses, the question of identification of the appellant does not arise. In the circumstances of the case, it cannot be expected from Bashir Ahmad (PW.2) and Muhammad Anwar (PW.3) that they would substitute the real culprit with their innocent son-in-law, against whom they have no previous enmity, for the murder of their dear one as the same amounts to nothing but to let the actual culprit go scot-free.
The defence could not point out any material contradictions in their statements with regard to the actual role played by the appellant during the fateful occurrence. No dishonest improvement in their earlier stance taken by them after the occurrence could be brought to surface by the defence. We are of the view that the ocular account furnished by Bashir Ahmad (PW.2) and Muhammad Anwar (PW.3) is confidence inspiring and trustworthy.
12.The injuries consistently assigned by the prosecution witnesses to the appellant which ultimately resulted into unnatural death of the deceased are reflected in medico legal examination report (Exh.PR) and post-mortem examination report (Exh.PK) of the deceased, as observed by the Medical Officer (PW.11).
13.Though the prosecution has alleged a specific motive that the appellant asked the deceased to bring Rs, 50,000/- from her father, the complainant (PW.2) yet the same could not be substantiated through any independent evidence in this regard by the prosecution before the Earned trial Court. Even the complainant Bashir Ahmad ( PW.2) and Muhammad Anwar (PW.3) have not claimed themselves to be the witnesses of the said conversation between the appellant and the deceased rather as per both the eye-witnesses, same was disclosed to them by the deceased in the hospital. Thus in our view, the motive in this case could not be proved by the prosecution and real facts leading to the fateful occurrence remained veiled.
14. As regards recovery of crime weapon, we have noticed that the occurrence took place on 15.05.2009 and the crime weapon, i.e chirri" (P.4) was recovered on 07.02.2010, i,e, about more than eight months after the occurrence from underneath the cot in a cattle shed which was sent to the Chemical Examiner on 15.04.2010 and thereafter to the Serologist and as per report of Serologist (EE,x.PP), it was stained with human blood. It is not believable that the appellant would have kept the crime weapon as it is while having an ample opportunity of washing or destroying the same. It is further improbable and unnatural that the appellant kejt the `chhuri' (P.4) safe, so that it could be produced to the Investigation Officer to make the same as an incriminating evidence against him.
Moreover, , the detection of human blood on the blade of `chhuri' (P.4) after such a long period is again not believable. Reliance is respectfully placed on the case of Basharat and another vs. The State (1995 SCM R 1735) wherein the Hon'ble Supreme Court of Pakistan disbelieved the evidence of blood stained `chhuri' which was allegedly recovered from the accused after ten days of the occurrence.
15. As regards the defence version taken by the appellant in his statement recorded under Section 342, Cr.P.C. that due to enmity and personal grudge, he has been falsely implicated in this case neither any reason or said enmity nor any independent witness to prove this stance has been brought forward by the appellant. Even he himself has not preferred to appear on oath as his own witness as provided under Section 340(2), Cr.P.C. to fortify his stance and to rebut the on oath statements of prosecution witnesses. Therefore, we are of the view that the appellant could not establish the defence plea taken by him hence, he same is brushed aside.
16. In the light of above discussion, we have observed that prosecution has successfully proved its case through confidence inspiring ocular account furnished by Bashir Ahmad, the complainant (PW.2) and Muhammad Anwer (PW.3) which is supported by the medical evidence and the result of investigation. Thus, we have come to an irresistible conclusion that the learned trial Court has rightly convicted the appellant Ali Akbar through the impugned judgment however, to the extent of quantum of sentence awarded to him, we are of the view that as the prosecution remained fail to prove the alleged -motive and we have disbelieved the recovery of crime- weapon. alternate sentence of imprisonment for life a legal sentence under Section 302(b) of Pakistan Penal Code, 1860, to Ali' Akbar (appellant) shall meet the ends of justice. In this regard, we are fortified by an esteemed judgment of the Hon'ble Supreme Court of Pakistan passed in the case titled 'Muhammad Riaz and another v. The State and another (2007 SCM R 1413). Similarly, in another case titled. Israr Ali v.The State (2007 SCM R 525) the Hon'ble Supreme Court of Pakistan has held as under: "5 ...this brings us to the question of sentence more particularly that appellant/convict to whom death has been awarded. since in criminal cases, the question of sentence demands the utmost care on the part of the Court dealing with the life and the liberties of the people and that the accused persons are also entitled to extenuating benefit of doubt on the question of sentence...
8. It is pertinent to mention here that this provision does not spell out the circumstances in which either of the two punishments is to be awarded and as such it has been left for the superior Courts to lay down guidelines for awarding either of the punishment. Unamended Section 302, P.P.C. shows that a Judge is not required to give reasons for imposing death sentence for murder as that was considered to be the proper sentence for murder but if he imposed a lesser punishment he was required to give reasons for it as law laid down by this Court in Piran Ditta' case PLD 1976 SC
300. Now after the said amendment in Section 302, P.P.C. will be little different as a Judge while awarding either of the two sentences will have to give reasons meaning thereby the learned Judge has to award the death penalty or life imprisonment after judicial application of mind with reasons.
The purpose and object of the amendment is based on the principles of Islamic Criminal Law introduced an enforced through Criminal Law (Second Amendment) Ordinance, 1990 (Ordinance VII of 1990) promulgated from time to time since 1990 in view of Section 338-F of, P.P.C. as in Islam except for just cause and reason, a life cannot be taken away or in other words put to an end."
Moreover, benefit of every extenuating circumstance is to be extended to the accused/appellant as is held by Hon'ble Supreme Court of Pakistan in the case titled Sharafat All khan v. The State (2010 SCM R 1205). Likewise, in a recent case titled Ghulam Mohy-ud-Din alias Haji Babu and others v. The State (2014 SCM R 1034) the Hon'ble Supreme Court of Pakistan has held that if a single doubt or ground is available, creating reasonable doubt in the mind of Court/Judge to award death penalty or life imprisonment, it would be sufficient circumstance to adopt alternative course by awarding life imprisonment instead of death sentence.
17. In the light of above discussion, the conviction of Ali Akbar (appellant) under Sections 302(b) of Pakistan Penal Code, 1860, awarded to him by the learned trial Court is maintained, however, his sentence is altered from death to imprisonment for life. The amount of compensation imposed upon him and imprisonment in default thereof is also `maintained. He is, however, awarded the benefit of Section 382B of the Criminal Procedure Code, 1898.
18.Consequently with the above modification in the quantum of sentence of Ali Akbar (appellant), <b>Criminal Appeal No, 385-J of 2012</b> is hereby dismissed.
19.<b>Murder Reference No, 166 of 2011</b> is answered in the NEGATIVE and the sentence of death of Ali Akbar (convict) is NOT CONFIRMED.