SADAQAT ALI KHAN, J.---This single judgment shall dispose of Criminal Appeal No, 168-J of 2013 filed by Ashfaque alias Shaka appellant (against his conviction) and M.R. No,202 of 2013 sent by the learned trial court for confirmation of the death sentence, of appellant Ashfaque alias Shaka or otherwise as both the above stated matters have arisen out of the same judgment dated 30.5.2013 passed by learned Additional Sessions Judge, Kasur according to which the appellant was convicted and sentenced as under:- "Ashfaque alias Shaka was convicted under section 302(b), P.P.C. And sentenced to death as Tazir' along with compensation Rs,1,00,000/- payable to the legal heirs of the deceased under section 544-A, Cr. P. C. And in default thereof further undergo six months' S.I."
Whereas his co-accused namely Farayad alias Tolu, Ijaz alias Jajj, Shahzad Masih and Abid Masih were acquitted by the trial court in private complaint under sections 302/324, 148/149, P.P.C. Arising out of case FIR No,464 dated 18.06.2010 under sections 302, 324,148/149, P.P.C. Police station Raiwind Sadar (Now Kot Radha Kishan).
2. The facts of the case have been stated by Hanif Masih complainant PW-1 in his statement before the learned trial court which is hereby reproduced for narration of the facts:- "On oath stated that on 18th of 6th month 2010 at about 5:00/5:30 in the evening I was present in my residential house situated at Diptywala when accused Ashfaque alias Shaka armed with .12 bore Carbine, Ijaz alias Jay also armed with .12 bore Carbine, Farayad Tolu armed with .30 bore Pistol, Shahzad armed with Rifle, Abid armed with .12 bore Gun all present in court came in front of outer door of my residential house and started abusing I myself along with my bhabhi Mst.
Khurshid Bibi and Shahid came outside when accused Ashfaque Shaka fired a shot from his .12 bore Carbine to my bhabhi Khurshid Bibi which hit her on chest and abdomen. Ijaz Jajj accused made a fire shot from his .12 bore Carbine to Shahid which hit him on his abdomen and arms. Both Khurshid Bibi and Shahid fell on the ground on suffering fire-shot injuries. Accused Shahzad, Farayad Tolu and Abid made firing there and fled away towards east. I saved myself while lying on the ground. PWs Shaukat and Rafi also witnessed the incident of this case along with me.
Motive of this case was that in the morning of the day of occurrence I myself had exchange of hot words with Ashfaque accused in the village when other co-accused also came there and threatened me to teach a lesson of said altercation. All accused have committed said occurrence in consultation with one and another and murdered Mst. Khurshid Bibi and also injured Shahid. I shifted these injured Mst. Khurshid Bibi and Shahid to RHC Kot Radha Kishan wherefrom both of them were referred to Jinnah Hospital Lahore however Mst. Khurshid Bibi succumbed to those injuries on the way. Whereas Shahid was admitted there. MLC of injured Shahid was conducted at RHC Kot Radha Kishan. I filed an application Ex.PA before SHO PS Raiwind Sadar (presently Kot Radha Kishan) for registration of criminal case whereon my thumb impression is EXPA/1 and formal FIR was registered. I named accused Abid present in court who is their bahnoi and later on got recorded supplementary statement while narrating his real name as Abid and my supplementary statement is Ex. PB.
' Investigation of this case was not conducted on merits and I.O. Held accused Abid as innocent and also did not show recovery of crime weapons of Abid, Shahzad and Ijaz Jajj on receiving illegal gratification however crime weapons were recovered from all said accused so I have to file this private complaint Ex. PC written on my instructions whereon my thumb impression is Ex. PC/1. I also filed list of witnesses which is Ex. PD and same bears my thumb impression Ex. PD so all accused be punished accordingly".
3. After filing of private complaint, learned trial court recorded the cursory evidence produced by the complainant and thereafter summoned the appellant and his co-accused mentioned above to face the trial.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 08.02.2012 against the appellant/convict and his co-accused (since acquitted) under sections 302, 324,148/149, P.P.C. To which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Hanif Masih, PW-1, Shaukat Masih PW-2, Dr. Ijaz ul Hassan PW-3, Muhammad Aslam Dispenser PW-4, Muhammad Jahangir PW-5, Master Sadiq Ali Qamar Draftsman P:7-6, Muhammad Azim SI PW-7, Shahzad alias Shahid CW-1, Shahadat Ali SI CW-2, Khalid Mahmood CW-3 whereas PWs namely Muhammad Asif constable (being unnecessary) and Shahid Masih (being won over by the accused) were given up by the prosecution and after tendering documentary evidence i,e. Report of Chemical Examiner Ex.PN, report of Serologist Ex.PO, report of FSL Ex.PQ, closed the prosecution evidence.
6. Medical evidence has been furnished by Dr. Ijaz ul Hassan PW-3 who stated as under:- "Dr. Ijaz-ul-Hassan PW-3 stated that 18.6.20.10 at 7:30 pm, he medically examined Mst. Khurshid Bibi (then injured) and observed following injuries on her person:-
1. Multiple lacerated wounds present on the whole abdomen. Margins were inverted and blackened.
Advised X-Rays.
2. Multiple lacerated wounds on left forearm. Margins inverted and blackened. Holes on the clothes correspond to the injuries on the wound.
(Note: Women medical officer was not available. As the patient was in very serious condition due to firearm injury on her body to save life she was given immediate medical aid by me and referred to Jinnah Hospital Lahore by the consent (special) of her husband Sadiq Masih and son. MLC was being issued as they had no objection to get MLC from a male doctor. In these circumstances, on humanitarian basis, MLC is being issued.
Injuries Nos. 1 and 2 were kept under observation and duration of injuries was fresh and it was done by firearm. Ex. PH is the correct carbon copy of MLC No, 377/2010 dated 18.6.2010 which is in my hand and signed by me.
He further stated that on the same day and time, he medically examined Shahid Masih injured and observed following injuries on his person:-
1. Multiple lacerated wounds on the abdomen, margins were inverted and blackened. Advised X- rays.
2. Multiple lacerated wounds on the right iliac fossa margins inverted and blackened.
3. Multiple lacerated wounds on the front of lower right fore-arm and palmer aspect of hand margins inverted and blacked. Advised x-rays.
4. Multiple lacerated wounds on the front of right thigh upper portion margins blackened and inverted. Advised x- rays. Holes on the clothes correspond to the injuries. All the injuries were kept under observation and duration of injuries was fresh and were caused by firearm.
Further, Muhammad Aslam Dispenser PW-4 stated that Lady doctor Nuzzhat Jahan remained posted at THQ Hospital Chunian for about one year. She had left the job and went to abroad. He remained posted with her. He is acquainted with her hand writing and signatures. As per record, she conducted the postmortem examination on the dead body of Mst. Khurshid Bibi deceased."
7. On the other hand, statements of appellant and his co-accused (since acquitted) were recorded under section 342, Cr.P.C. Who refuted the allegations so leveled against them and the appellant has not opted to appear as a witness under section 340(2), Cr.P.C. And also did not produce any oral as well as documentary defence evidence and in reply to question "why this case against you and why the PWs deposed against you?" the appellant Ashfaque alias Shaka replied as under:- "The story of prosecution is totally false and concocted one. I along with my whole family namely real brothers Ijaz alias Jajj, Farayad alias Tolu and Shalizad and our Bahnoi Abid Masih have falsely been implicated in this case. My father had already been died. Our mother is very old and sick lady. On 18.6.2010 no alleged occurrence as narrated by the PWs took place. Neither I nor my brothers and Bahnoi was present at the spot nor we went in front of the house of complainant nor abused nor raised any lalakara there nor we made any firing on the deceased or alleged injured.
We have no any weapon. Shaukat Masih PW is real Bahnoi of complainant Hanif so both Shaukat and Hanif Masih the alleged eye-witnesses are interested witnesses and they have falsely deposed against us. Actually there are two shrines in village Diptywala i,e. Baba Noor Shah and Baba Rang Shah and their Urs/Mela was being solemnized in the said village on 18.6.2010 (5th of Haar). A firing took place between two rival groups in the said Mela/Urs. One Iftikhar son of Shaukat caste Khokhar resident of Ghaniaki (Mahmood Abad) made firing in the Mela and some pellets of firing made by said Iftikhar hit to Mst. Khurshid Bibi and Shahid Masih injured who were also observing Mela. Said Iftikhar decamped from the spot and entered in village Kot Mangal Singh and concealed himself in a house there. Some people chased him but he succeeded in fleeing from there but we all have been falsely implicated by the complainant on the instance of Haji Gulfraz owner of brick kiln and Javed Iqbal ex-Naib Nazim real brother of Dr. Ijaz PW-3.
Moreover both the parties were labourers at the said brick kiln and Haji Gulfraz owner of brick kiln was having good relations with the complainant party and we had obtained some advance money from him and due to some reason we could not return the said advance in time due to which Haji Gulfraz nourished a grudge against us, therefore he and said Naib Nazim had got involved us in this false and fabricated case. Mst. Khurshid Bibi deceased and Hanif Masih complainant are not residents of village Diptywala rather they are residents of Hamid Town which is at a distance of three Kilometers from village Diptywala so they are imported witnesses who have not seen the alleged occurrence. Since we all male members including our Bahnoi Abid co- accused of the family have been involved in this case so my old and sick mother approached the 1.0./SHO to bring on record the real facts mentioned by me above but her version was not recorded by the I.O. Intentionally. Moreover our said version has also not been brought on record by the 1.0 who was in league with the complainant. My mother Bashiran Bibi since is old, sick and illiterate lady so she could not approach the higher forum for redressal of her grievance.
Furthermore our version has also been supported by Shahid Masih injured PW who was summoned as a court witness on the application of complainant. Said Shahid Masih has categorically stated in the statement that we were not present at the place of alleged occurrence and that he had not sustained the injuries at our hands. He also admitted that the complainant and the deceased had no house at village Diptywala".
8. After conclusion of the trial, learned trial court while acquitting Farayad alias Tolu, Ijaz alias Jajj, Shahzad Masih and Abid Masih co-accused of the appellant, convicted the appellant Ashfaque alias Shaka with above stated sentences. Hence this appeal.
9. Learned counsel for the appellant has contended that:-
(i) the judgment of the trial court dated 30.5.2013 is against law and facts on the file and is liable to be set aside;
(ii) that the prosecution has failed to prove its case against the appellant/convict as there are many major discrepancies in the statements of the PWs and the learned trial court has convicted the appellant on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law;
(iv) lastly submitted that instant appeal may be accepted and the judgment of the trial court dated 30.5.2013 may kindly be set aside and appellant/ convict may be acquitted.
10. On the other hand, learned D.PG assisted by the learned counsel for the complainant has vehemently opposed the appeal and submitted that:-
(i) prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the appeal.
11. We have heard the learned counsel for the parties as well as learned DPG and perused the record.
12. The detail of prosecution case as given by Hanif Masih complainant PW-1 has already been given in para 2 of this judgment, therefore, there is no need to repeat the same to avoid the duplication, and repetition.
13. According to the FIR, occurrence took place on 18.06.2010 at 5.30 p.m. Whereas FIR was registered on the same day at 7:15 pm on the written application (Ex.PA) moved by Hanif Masih complainant PW-1 brother-in-law (Dewar) of Mst. Khurshid Bibi deceased. Injured of this case is Shahzad alias Shahid CW-1.
14. Prosecution has introduced following accused in this Case:-(I) Farayad alias Tolu (2) Ijaz alias Hajj (3) Shahzad Masih (4) Abid Masih (these four have been acquitted by the trial court through the impugned judgment. Learned DPG submits that .Complainant/state has not filed any appeal against their acquittal) (5) Ashfaque alias Shaka (appellant).
15. Hanif Masih. PW-1 and Shaukat Masih PW-2 claim themselves to be the eye-witnesses of the occurrence.
16. They stated to the extent of role of Ashfaque alias Shaka appellant that he made fire shot with his .12-bore Carbine which hit Mst. Khurshid Bibi on her abdomen and chest. They further stated that Ijaz alias Jajj (acquitted co-accused) also made fire shot with his Carbine which hit Shahzad alias Shahid injured CW-1. Place of occurrence is the street near the house of complainant Hanif Masih PW-1.
17. Both these witnesses were cross-examined at length but their evidence could not be shaken during the process of cross-examination to the extent of appellant (Ashfaque alias Shaka). They corroborated each other on all material aspects of the case to the extent of appellant. They have also established their presence at the place of occurrence at the time of occurrence. Their evidence is straightforward, trustworthy and confidence inspiring to the extent of appellant.
18. Shahzad alias Shahid injured (CW-1) stated in his statement (examination in chief) as under:- "On oath stated that On 18.6.2010 a quarrel took place in a Mela held in village Diptywala. First fire was hit to me and 1 do not know who sustained second fire shot. I fell down and became unconscious. I do not know what happened thereafter".
19. This witness is passerby as stated by learned DPG.
20. Ijaz alias Jajj (co-accused of the appellant) to whom injury on the person of Shahzad alias Shahid CW-1 was attributed has been acquitted.
21. Medical evidence has been furnished by Muhammad Aslam Dispenser PW-4 who stated as under:- "Lady doctor Nuzzhat Jahan remained posted at THQ Hospital Chunian for about one year. She had left the job and went to abroad. He remained posted with her. He is acquainted with her hand writing and signatures. As per record, she conducted the postmortem examination on the dead body of Mst. Khurshid Bibf deceased".
Postmortem report (Ex.PK) shows that medical officer had observed firearm injuries on the person of Mst. Khurshid Bibi attributed to appellant which were ante-mortem and were sufficient to cause death in ordinary course of nature. Therefore, medical evidence has fully supported the ocular account furnished by above-mentioned eyewitnesses.
22. Hanif Masih PW-1 stated regarding motive of the occurrence in his statement (examination-in- chief), as under:- "Motive of this case was that in the morning of the' day of occurrence I myself had exchange of hot words with Ashfaque accused in the village when other co-accused also came there and threatened, me to teach a lesson of said altercation".
23. Considering above, we are of the view that appellant had no motive against Mst. Khurshid Bibi deceased to commit her murder, rather, motive has been attributed to appellant against Hanif Masih PW-1 who was present at the time of occurrence at the place of occurrence and was not the target of the appellant. This shows that motive disclosed by Hanif Masih PW-1 mentioned above was not actual motive of the occurrence and prosecution has concealed motive of the present occurrence with the reasons best known to it.
24. Shahadat Ali SI CW-2 I.O. Of this case stated his statement (examination-in-chief) that on 11.7.2010 appellant was arrested and on 23.7.2010 he during interrogation, disclosed and got recovered .12-bore carbine C-1 from his house which was taken into possession through recovery memo Ex. CM. Report of FSL (Ex.PQ) shows that crime empties recovered from the place of occurrence were received in the office on 3.8.2010 after the arrest of the appellant (11.7.2010) and after the recovery of .12-bore carbine C-1 (23.7.2010), in these circumstances, possibility cannot be ruled out that crime empties have been manufactured before their dispatch to FSL to obtain the positive report of FSL Ex.PQ which is not believable and same is hereby discarded. Reliance is placed on case titled "Masood Aslam alias Shada D v. The State" (2002 PCr.LJ 1603) in which Hon' ble Division Bench of this Court has observed at page 1610 as under:- "The recoveries effected during the investigation of this case had not been believed by the learned trial Court for the detailed reasons recorded in the impugned judgment. Even otherwise the alleged recoveries of fire-arm weapons from the appellants were not of much avail to the prosecution as the statements of PWs 2, 5 and 11 show that the crime empties and the said weapons had been sent to the Forensic Science Laboratory together. Thus a possibility of manufacturing of the said crime-empties before their dispatch to the Forensic Science Laboratory could not be ruled out of consideration."
25. Adverting to the defence plea of the appellant Ashfaque alias Shaka, he stated in answer to question "why this case against you and why the PWs made statements to involve you?" as under:- "The story of prosecution is totally false and concocted one. I along with my whole family namely real brothers Ijaz alias Jajj, Farayad alias Tolu and Shahzad and our Bahnoi Abid Masih have falsely been implicated in this case. My father had already been died. Our mother is very old and sick lady. On 18.6.2010 no alleged occurrence as narrated by the PWs took place. Neither I nor my brothers and Bahnoi were present at the spot nor we went in front of the house of complainant nor abused nor raised any lalakara there nor we made any firing on the deceased or alleged injured. We have no any weapon. Shaukat Masih PW is real Bahnoi of complainant Hanif so both Shaukat and Hanif Masih the alleged eye-witnesses are interested witnesses and they have falsely deposed against us. Actually there are two shrines in village Diptywala i,e. Baba Noor Shah and Baba Rang Shah and their Urs/Mela was being solemnized in the said village on 18.6.2010 (5th of Haar). A firing took place between two rival groups in the said Mela/Urs. One Iftikhar son of Shaukat caste Khokhar resident of Ghaniaki (Mahmood Abad) made firing in the Mela and some pellets of firing made by said Iftikhar hit to Mst. Khurshid Bibi and Shahid Masih injured who were also observing Mela. Said Iftikhar decamped from the spot and entered in village Kot Mangal Singh and concealed himself in a house there. Some people chased him but he succeeded in fleeing from there but we all have been falsely implicated by the complainant on the instance of Haji ' Gulfraz owner of brick kiln and Javed Iqbal ex-Naib Nazim real brother of Dr. Ijaz PW-3. Moreover both the parties were labourers at the said brick kiln and Haji Gulfraz owner of brick kiln was having good relations with the complainant party and we had obtained some advance money from him and due to some reason we could not return the said advance in time due to which Haji Gulfraz nourished a grudge against us, therefore he and said Naib Nazim had got involved us in this false and fabricated case. Mst. Khurshid Bibi deceased and Hanif Masih complainant are not resident of village Diptywala rather they are residents of Hamid Town which is at a distance of three Kilometers from village Diptywala so they are imported witnesses who have not seen the alleged occurrence.
Since we all male members including our Bahnoi Abid co-accused of the family have been involved in this case so my old and sick mother approached the 1.0. /SHO to bring on record the real facts mentioned by me above but her version was not recorded by the I.O. Intentionally.
Moreover our said version has also not been brought on record by the I.O. Who was in league with the complainant. My mother Bashiran Bibi since is old, sick and illiterate lady so she could not approach the higher forum for redressal of her grievance. Furthermore our version has also been supported by Shahid Masih injured PW who was summoned as a court witness on the application of complainant. Said Shahid Masih has categorically stated in the statement that we were not present at the place of alleged occurrence and that he had not sustained the injuries at our hands.
He also admitted that the complainant and the deceased had no house at village Diptywala".
The appellant has not opted to appear as a witness under section 340(2), Ct.P.C. And also did not produce any oral as well as documentary defence evidence. Considering above, it is concluded that appellant Ashfaque alias Shaka has failed to prove his defence plea and learned trial court has rightly discarded his defence plea with sufficient reasons.
26. In view of the above discussion, even if the evidence of recovery of .12-bore carbine C-1, motive and evidence of Shahzad alias Shahid injured CW-1 has been excluded from consideration, even then, prosecution has proved its case beyond shadow of doubt against Ashfaque alias Shaka appellant through ocular account furnished by above mentioned eye-witnesses supported by medical evidence discussed earlier.
27. Now coming to the quantum of sentence, we have noted some mitigating circumstances in this case. Firstly, we have discarded positive report of FSL (Ex.PQ) with the reasons mentioned in para 24 of this judgment and recovery of .12-bore carbine (C-1) has become inconsequential in the present case. Secondly, motive story has been disbelieved with the reasons mentioned in para 23 of this judgment. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which resulted into present unfortunate incident. Therefore, in our view death sentence awarded to the appellant is harsh one.
28. It is well recognized principle by now that the accused is entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence as well. In this regard we respectfully refer the case of titled Mir Muhammad alias Miro v. The State (2009 SCM R 1188) wherein the Hon'ble Supreme Court of Pakistan has held as under:- "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."
29. Further reliance is placed on case reported as "Zafar Iqbal and others v. The State (2014 SCM R 1227) in which Hon'ble Supreme Court of Pakistan has observed at pages 1235 and 1238 as under:- "The question of awarding of sentence is required by law to be adverted to in every criminal case and it is the duty of the Court to always consider this aspect of the matter while awarding sentence. In the present case trial Court has awarded death sentence to the appellants, which has been maintained by the High Court and the murder reference has been answered in positive.
On examination of the record certain facts have come to light, which need to be given serious consideration and they probably have in them material on the basis of which the case of mitigation in sentences could be found. Although in the ocular account it is alleged that appellant Iftikhar has fired with a rifle at Jaffar Hussain deceased on his head and he has also fired at Abdaal Hussain deceased on the left side of his chest but the prosecution has not been able to secure or recover any firearm from this appellant. At the same time appellant Asghar Iqbal is alleged to have fired with his rifle at Abdaal Hussain deceased on his left ear with his rifle.
Although 7 mm rifle was recovered on the pointation of this appellant but no recovery of empty of this rifle was made from the place of incident and there is no report of Forensic Science Laboratory (FSL) of connecting the recovered 7 mm rifle with the two crime empties recovered from the place of incident. It is also noted that the real motive as propounded in the prosecution version was against deceased Jaffar Hussain in that he was the one, who has beaten appellant Ifiikhar. The motive being against deceased Jaffar Hussain, it is not understandable as to why the appellant after having murdered Jaffar Hussain will proceed covering distance and murder Jaffar Hussain's two sons, namely,' Abdaal Hussain and Abrar Hussain. This will go to show that something very obnoxious may have happened at the place of occurrence of which neither the prosecution has given any evidence nor the same has come out from the side of defence.. Thus the immediate circumstance or cause for the happening of the events, which culminated into the murder of three persons namely, Jaffar Hussain, Abdaal Hussain and Abrar Hussain are altogether shrouded in mystery".
"All the above factors in the light of the law laid down by this Court as discussed above lead us to the conclusion that there are sufficient extenuating circumstance, on the basis of which the appellants 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 their death sentence is converted into imprisonment for life. While maintaining the conviction of the appellants and modifying the sentence benefit of section 382-B, Cr.P.C., this appeal is partially allowed in the above terms".
30. Considering above, conviction of Ashfaque alias Shaka appellant under section 302(b), P.P.C.
For committing the murder of Mst. Khurshid Bibi deceased is maintained but his sentence is altered from death to imprisonment for life. The compensation and sentence in default thereof awarded by the trial court through the impugned judgment are maintained and upheld. The benefit of section 382-B, Cr.P.C. Is also given to the appellant.
31. Consequently, with the above said modification in the impugned judgment, Criminal Appeal No, 168-J of 2013 filed by Ashfaque alias Shaka appellant is hereby dismissed. Murder Reference No,202 of 2013 is answered in NEGATIVE and death sentence of Ashfaque alias Shaka appellant NOT CONFIRMED.