' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Khuda Bakhsh son of Muhammad Bakhsh, caste Mohana, resident of Dajal, Tehsil and District Bhakkar, appellant, along with Muhammad Ibrahim (since acquitted) and Sohran Khan (did not face trial) was involved in case FIR No,484/12010, dated 14.08.2010, offence under sections 302/34, P.P.C., registered with Police Station Saddar Bhakkar and was tried by learned Sessions Judge, Bhakkar. The learned trial court seized with the matter in terms of judgment 01.02.2012 convicted and sentenced the appellant as under:-- ' Under Section 302(b), P.P.C., sentenced to death as Ta 'zir with direction to pay Rs,2,00,000/- as compensation to legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months.
2. Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed his conviction and sentence through filing Cr1. Appeal No,49-J/2012 while the learned trial court forwarded Murder Reference No,87 of 2012 for confirmation of death sentence inflicted upon the convict in terms of section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment.
3. Prosecution story as portrayed in the FIR (Exh.PD) lodged on the statement of Azhar Hassnain son of Ghulam Sarwar, caste Qassab; resident of Bashi Makkal Mouza Daulat Wala (PW-S) is that he earns his livelihood through labour. On 14.08.2010 Ghulam Sarwar father of the complainant was returning to his house from Kotla Jam while riding on a cycle. At about 6:30 p.m. When he reached near Pukhta Road near Tube-well of Malik Ghazanfar Ali Kahawar within the local limits of Mouza Daulatwala all of sudden (1) Khuda Bakhsh son of Muhammad Bakhsh caste Mohana, resident of Dajal armed with Kalashnikov rifle, (2) Muhammad Ibraheem son of Allah Wassaya caste Mohana, resident of Janoobi Bhakkar, (3) Sohnra Khan son of unknown, caste Balouch, resident of Darban Khurd, District Dera Ismaeel Khan empty handed, emerged at the road. Muhammad Ibraheem and Sohnra Khan raised lalkara to Ghulam Sarwar father of the complainant for teaching lesson on account of filing suit for jactitation of marriage and while stopping the cycle they got him down.
When Ghulam Sarwar started running towards the complainant, Khuda Bakhsh, one after the other, made fire shots with his Kalashnikov-numa rifle, out of which two fire shots landed at left side of chest, right shoulder, neck and on right bicep of Ghulam Sarwar. After sustaining injuries father of the complainant fell down on the ground. The complainant and Ghulam Akbar son of Ghulam Rasool and Shah Nawaz son of Ghulam Rasool, both Chughtai by caste and residents of the same village, who were cutting fodder nearby, attracted towards the spot and witnessed the occurrence.
The accused extended threats of dire consequences and went towards northern side. Thereafter the complainant along with other PWs took care of his father, however, he had already succumbed to the injuries.
' Motive behind the occurrence as disclosed in the crime report was that Rasheeda Mai wife of Khuda Bakhsh had dissolved her marriage with the appellant through filing a suit in the family court and-the accused had nourished grudge that Ghulam Sarwar was instrumental in dissolution of that marriage. Due to this grudge the accused committed the murder of Ghulam Sarwar father of the complainant.
4. The complainant in order to report the matter to the police reached Police Station where he appeared before Muhammad Aslam Khan, ASI (PW-8) and made his statement, which culminated into FIR. After registration of the case the investigation was entrusted to Malik Sultan Ahmed, Inspector (PW-10), who visited the spot and after inspecting the dead body he prepared injury statement (Exh.PF), drafted inquest report (Exh.PG) and dispatched the dead body to mortuary under the escort of Mureed Hussain 290/C (PW-3). From the spot the Investigating Officer secured blood stained earth vide recovery memo Exh.PH. He also prepared rough site plan of the place of occurrence (Exh.PJ). After the postmortem examination, last worn clothes of the deceased shalwar (P-3) and qameez (P-4) were produced before the Investigating Officer, which were taken into possession vide recovery memo Exh.PC. On the direction of the Investigating Officer and on the pointing out of the PWs, on 18.08.2010, Wazeer Ahmed Patwari (PW-1) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PA). On 07.11.2010, the Investigating Officer arrested the appellant and obtained his physical remand. During the course of interrogation, on 10.11.2010 in pursuance of disclosure the appellant led to the recovery of Kalashnikov (P-1) along with five live cartridges (P-2/1-5), which were secured vide recovery memo Exh.PB. The Investigating Officer also prepared rough site plan of the place of recovery (Exh.PK). On reaching the police station the Investigating Officer deposited the case property with Moharrar Malkhana for safe custody and onward transmission to the quarter concerned. He also recorded statements of the prosecution witnesses under Section 161, Cr.P.C.
5. During the course of investigation having found the appellant guilty, the Investigating Officer prepared report under Section 173, Cr.P.C. While placing his name in column No,3, which was sent to the court of Sessions en-routed through the Illaqa Magistrate as provided under Section 190(2), Cr.P.C. On 17.03.2011, the learned trial court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as ten (10) prosecution witnesses.
6. Azhar Hassnain (PW-5) is the complainant of the case while Shah Nawaz (PW-6) is the other eye-witness of the occurrence. Muhammad Aslam, ASI (PW-8) had chalked out formal FIR while Wazeer Ahmed Patwari (PW-1) had prepared scaled site plan of the place of occurrence.
Investigation in this case was carried out by Malik Sultan Ahmed, Inspector (PW-10).
' Dr. Muhammad Nasir Kamran (PW-9), on 14.08.2010 at 11:30 p.m. Had conducted postmortem examination on the dead body of Ghulam Sarwar deceased and observed following injuries on his person: - "1 (A) An entrance wound of firearm measuring 2 cm x 1 cm at left side of chest, 9 cm above left nipple. Margins were inverted. There was no blackening. Corresponding holes were present in shirt and Saluka.
2(A). An entrance wound of firearm 1.5 cm x 1 cm at front of right shoulder, 5 cm from top of right shoulder. Margins inverted, corresponding holes were present in shirt and Saluka. No blackening was present.
3(A). An entrance wound of firearm 1 cm x 1 cm at outer side of right arm, 27 cm above right elbow joint margins were inverted, corresponding holes were present in wearing clothes. No blackening was present.
1(B). An exit wound of firearm, 2.5 cm x 1.5 cm at right shoulder, 11 cm from top of right shoulder.
Margins were everted. Corresponding holes were present in wearing clothes.
2(B). An exit wound of firearm 2 cm x 1 cm at back of right shoulder, 8 cm behind top of right shoulder. Margins everted. Corresponding holes were present in shirt and Saluka.
3(B). An exit would of firearm 8 cm x 4 cm at front and inner side of right arm, 9 cm above right elbow joint. Margins were everted. Corresponding holes were present in wearing clothes."
' After conducting the post mortem examination the doctor rendered the following opinion:- In my opinion, the death was caused due to injury No,1 which caused damage to trachea, major blood vessels of right side of neck and upper lobe of right lung with its pleura leading to severe haemorrhage shock and death. All the injuries were ante-mortem in nature and were sufficient to cause death in ordinary course of nature. All the injuries were inflicted by firearm. The duration between injuries and death was within 15 minutes; however duration between death and post mortem 4 to 8 hours."
' Statements of rest of the prosecution witnesses are formal in nature.
7. Vide his separate statements recorded on 17.05.2011, learned ADPP gave up Ejaz Hussain and Zulfiqar Ali, AS I, PWs being unnecessary. Sona Pehlwan and Ghulam Akbar, PWs, were given up on 26.09.2011 again being unnecessary while on 02.11.2011 learned ADPP tendered in evidence the report of Chemical Examiner (Exh.PL) and report of Serologist (Exh.PM). Vide his statement recorded on 20.12.2011, learned ADPP tendered in evidence attested copy of judgment and decree dated 01.06.2009 in a case titled "Rasheedaan Mai v. .Khuda Bakhsh" (Exh.PN and Exh.PP), attested copy of FIR No,285/2010 (Exh.PQ) and closed the prosecution evidence.
8. The appellant was examined under section 342, Cr.P.C. Wherein he opted neither to appear as his own witness in terms of section 340(2), Cr.P.C. In disproof of allegations levelled against him in the prosecution evidence nor he opted to adduce evidence in his defence. While replying to the question why this case against him and why the PWs deposed against him, the appellant made the following deposition: - "A false case has been registered against me and my co-accused. One unknown person has committed murder of Ghulam Sarwar and it is case of blind murder. I am a poor man. When the police failed to trace out the actual culprit, they planted a false and fictitious story of murder of Ghulam Sarwar against me and my relatives. All the PWs are interested witnesses and no independent evidence has been placed against me from the nearest locality."
9. Learned trial court after evaluating the evidence available on record, found version of the prosecution proved beyond shadow of reasonable doubt against the appellant, resulting into his conviction in the afore-stated terms.
10. At the very outset it has been argued by learned counsel for the appellant that the impugned judgment has been recorded by the learned trial court in a slipshod manner without adverting to real facts and circumstances. Learned counsel contended that both the prosecution witnesses of the occular account viz. Azhar Hassnain complainant (PW-5) and Shah Nawaz (PW-6) were not present at the place of occurrence and they made statements being interested witnesses. Further contended that the learned trial court has altogether ignored the circumstances under which the instant occurrence had taken place. It was argued that Khuda Bakhsh had married with Mst.
Rasheeda Mai real niece of the deceased and cousin of the complainant, which resulted into birth of two children, however, subsequently the marriage tie was broken for which the complainant party had nourished grudge. Next contended that the occurrence was committed by unknown accused persons, however, due to this grudge the appellant has been roped falsely in this case.
Further contended that the medical evidence does not corroborate the prosecution version on material aspects. Learned counsel vigorously argued that the prosecution was not certain about the weapon used by the assailant as according to contents of the crime report it was mentioned as Kalashnikov whereas subsequent to that it has been mentioned as Kalashnikov-numa.
Moreover, as no crime empty was collected from the place of occurrence, therefore question of any report of Forensic Science Laboratory does not arise. Next contended that while making his statement under section 342, Cr.P.C. The appellant has denied the whole prosecution accusations.
Learned counsel finally argued that as the prosecution case is pregnant with doubts, therefore, conviction and sentence recorded by the learned trial court is uncalled for.
11. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised on behalf of the appellant. He contended that the appellant was duly named in the promptly lodged HR with specific role of inflicting fatal injuries on the person of deceased. Further contended that the prosecution witnesses of occular account while appearing in the witness-box fully supported the prosecution case. Next submitted that the medical evidence corroborates the prosecution version on material aspects. It was vehemently argued that from the spot the Investigating Officer had collected blood stained earth, which was dispatched to the offices of Chemical Examiner and Serologist and according to reports of the concerned quarter, its origin was found as human blood. Learned counsel contended that though crime empties were not collected from the place of occurrence, however, recovery of Kalashnikov, after arrest of the appellant, fully establishes his link with the crime alleged. Moreover, during the course of investigation the appellant was found guilty as such his name was placed in column No,3 of the report prepared under section 173, Cr.P.C. It was finally argued that the appellant is sole proprietor of the occurrence, therefore, the sentence inflicted by the learned trial court is in exact proportionate to the act committed by him.
12. We have heard the arguments advanced from both sides and perused the record available on file with the able assistance of learned counsel for the appellant, learned counsel for the complainant, as well as, learned Deputy Prosecutor General.
13. It is salutary principle of law that each criminal case has its own facts and circumstances and evidence available on record has to be weighed according to its peculiar events. There is no second cavil to this proposition that in the instant case the occurrence had taken place on 14.08.2010 at 6:30 p.m. Whereas after the occurrence, the complainant by covering a distance of 7/8 miles proceeded to police station to report the matter where FIR was lodged at 8:00 p.m. Hence, in all eventualities it can be termed as promptly lodged FIR; wherein name of the appellant does figure with his specific role. In order to substantiate its version the prosecution has led evidence qua occular account, medical evidence, recovery of Kalashnikov, investigation, as well as, other corroborative pieces of evidence.
14. As fat as occular account in this case is concerned that has been substantiated through the statements of Azhar Hassnain (PW-5) and Shah Nawaz (PW-6). While appearing in the witness-box both the prosecution witnesses fully supported the prosecution version on material aspects viz. Time of occurrence, mode and manner of occurrence and the injuries ascribed to the appellant.
Nevertheless the prosecution witnesses were subjected to lengthy cross-examination; however, the defence could not shatter the veracity of their deposition. The defence failed to create any dent in their statements from which it could be gathered that their statements were not trustworthy or did not inspire confidence. Admittedly the occurrence had taken place in the month of August at 6:30 pm, when reasonable sunlight exists coupled with the fact that the parties were previously known to each other; therefore, question of misidentification does not arise.
As far as relationship of the PWs with the deceased as raised by defence is concerned, though the complainant happens to be real son of the deceased but it has been the consistent view of the superior courts of the country that mere relationship of the witness with deceased would not discard his testimony if otherwise the same is trustworthy, confidence inspiring and appealing to reason while corroborated by independent circumstances as has happened in the case in hand.
Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of ljaz 'Alunad v. The State (2009 SCMR 99) and Talib Hussain and others v The State and others (2009 SCMR 825).
15. As far as medical evidence is concerned, Dr. Muhammad Nasir Kamran (PW-9) had conducted postmortem examination on the dead body of the deceased. The doctor while appearing in the witness-box had affirmed the locale/seat of injuries on the person of the deceased, which also coincides with the time of occurrence. Moreover, according to doctor injuries on the person of deceased were caused by firearm weapon. Fact also remains that postmortem examination in this case was conducted within eight hours, which itself rules out the factum of any fabrication/concoction. Therefore, medical evidence in this case fully corroborates the prosecution case.
16. It is established principle of law that occular account is always deemed to be principal evidence and if the same is corroborated by medical evidence that is sufficient to record conviction, whereas, the other constituents/factors like recovery, bloodstained earth, report of Chemical Examiner, report of Serologist, etc. Are always deemed to be corroborative piece of evidence.
TS####Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Amal Sherin and another v. The State through A. G. N. W. F. P (PLD 2004 Supreme Court 371); wherein it was held as under:-- "---S. 302(b)---Appreciation of evidence---Conviction on ocular testimony alone---Conviction , can be recorded even on the statements of the eye-witnesses alone without there being any corroboration. Provided their evidence inspires confidence."
' Similar view was held in the case of Anwarul Hag v. The State (2004 SCMR 252); wherein their Lordships in the august Supreme Court of Pakistan had held as under:-- "---S. 302(b)---Constitution of Pakistan (1973), Art. 185 (3)--- Occurrence had taken place in broad-daylight and the FIR was recorded with promptitude---Parties being known to each other prior to the incident, no question of mistaken identity of accused could arise--Eye-witnesses were natural witnesses of the occurrence who had given plausible explanation for their presence at the spot and they had no reasons for false implication of accused in an offence entailing capital punishment-- Occular account was corroborated by medical evidence and inspired confidence-- -No misreading of evidence was pointed out in the case---Leave to appeal was refused to accused in circumstances."
17. While scanning the whole prosecution case from all angles we are of the considered view that the prosecution has been able to advance its case wherein minute details have been brought forth. The defence has miserably failed to establish that the prosecution witnesses had any ill-will or motive to falsely implicate the appellant in the instant case. Similarly the plea of the appellant that he has been substituted in this case is not corroborated from any material available on record. Even otherwise substitution is a rare phenomenon, which is squarely missing in this case.
Moreover, during the course of investigation the appellant was found guilty and as such his name was placed in column No,3 of the report prepared under section 173, Cr.P.C.
18. While scrutinizing the whole prosecution evidence as discussed above we are of the considered view that the prosecution has been able to establish guilt against the appellant through reliable, trustworthy, substantial evidence on the record, which in other words is unshaken and confidence inspiring. Hence the .Prosecution has established its case beyond reasonable doubt, therefore, the learned trial Court was rightly justified in recording conviction against the appellant.
19. Now the pivotal question before this Court is whether the learned trial court was justified in sentencing the appellant to capital punishment under Section 302(b), P.P.C., on the basis of evidence adduced by the prosecution, as well as, the circumstances floating on the record. There is no denial to this fact that besides the appellant two others namely Muhammad Ibraheem and Sohnra Khan were also arrayed as culprits of the occurrence. As far as Muhammad Ibraheem is concerned, he was declared innocent by the police during the course of investigation and his name was placed in column No,2 of the report prepared under section 173, Cr.P.C. And finally he was acquitted of the charge by the court of first instance and even the prosecution has not challenged his acquittal before this Court, which has attained finality. As far as case of third accused Sohnra Khan is concerned, the whole file is silent about his fate except the word `proclaimed offender' has been recorded in the judgment, hence admittedly the learned trial court has passed the conviction while discarding the same set of evidence qua the co-accused coupled with the fact that the prosecution was not certain about the fact whether the appellant was carrying Kalashnikov or a weapon Kalashnikovnuma at the time of occurrence. Moreover, as no crime empty was collected from the place of occurrence, therefore, the question of any report of Forensic Science Laboratory does not arise. All these factors when appreciated in the spirit of the circumstances that the instant occurrence had taken place due to the fact that the wife of appellant had obtained a decree after filing a suit for dissolution of marriage. Further this too is an admitted fact that the appellant had two sons out of the wedlock with Rasheeda Mai. It is also part of the record that the motive behind the instant occurrence was that the deceased was pursuing the case of his niece and was instrumental in getting divorce. When all these facts are perused conjointly, possibility cannot be ruled out that the appellant had committed the afore-said crime under the impulses of some psychological conditions, which might have erupted in his mind due to breakage of family bond resulting into such state of mind as the whole family was abandoned because of decree of dissolution of marriage alone, which might have prompted him to commit the afore-said crime due to the reasons beyond his control as a result of aggressive state of mind.
To meet such like situation, legislation was introduced in United Kingdom to evaluate the sentence through legislation "Homicide Act, 1957", the preamble of which reads as under:- "An Act to make for England and Wales (and for courts-martial wherever sitting) amendments of the law relating to homicide and the trial and punishment of murder, and for Scotland amendments of the law relating to the trial and punishment of murder and attempts to murder.
' Section 1(1) of the supra Act is relevant in this regard, which is reproduced herein below for ready reference:.- "1.---(1) Where a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought (express or implied) as is required for a killing to amount to murder when not done in the course or furtherance of another offence."
' The above Doctrine of Diminished Liability was elaborated in the English Jurisdiction in the cages of Queen v. M' Naghten (10 Clark & F.200, 2 Eng. Rep. 718 (H.L. 1843) and REGINA v. BYRNE {(1960) 2 QB 396).
20. The concept of diminished liability was also taken into consideration by the superior courts of this country from timeto-time and there are some salutary judgments available in this regard. In the case of Muhammad Shafi v. The State (PLD 1962 Supreme Court 472) though the august Supreme Court of Pakistan has not accepted the principle of diminished liability in strict sensu, however, the sentence of death altered by the High Court was not interfered and conviction and sentence passed by the High Court was maintained.
' Another judgment on this question was handed down in the case of Juma Khan v. The State (PLD 2003 Lahore 60); wherein the Doctrine of Diminished Liability was accepted in the following terms:- - "29. There is no motive to the occurrence. Appellant shot at the deceased and P. Ws. As he was disturbed by their game of cricket. Even if no ball fell into his house as has been pleaded in defence or his door not broke, causing him provocation. The fact of the matter is that it was on account of the abnormality afflicted on him which put him out of control and he committed the act. This could be one account of his abnormal condition. And as this probability is there, we feel bound in applying to this case the Doctrine of Diminished Responsibility and in accepting it as a mitigating circumstance.'
21. While drawing analogy from the legislation of "Homicide Act, 1957" coupled with the case law referred to above we are of the humble view that the time has come to take into consideration the Principle of Diminished Responsibility in strict sensu keeping in view the prevailing, circumstances in the society. This being so we are of the considered view that we have observed certain compelling circumstances, which might have directly or indirectly caused a negative impact which actually influenced the appellant to commit a crime in hand being beyond his psychological comprehension attracting the Doctrine of Diminished Responsibility, hence the alternative sentence of imprisonment for life would be adequate to meet the ends of justice. The net-result of the same is that Murder Reference No, 87 of 2012 forwarded by the learned trial court in terms of section 374, Cr.P.C. For confirmation of death sentence inflicted upon the convict is answered in negative. Criminal Appeal No,49-J/2012 filed by the appellant is dismissed with modification in his sentence from death to imprisonment for life under section 302(b), P.P.C., as Ta'zir. However, the burden of compensation in terms of section 544-A, Cr.P.C. As imposed by the learned trial Court and the effect in failure thereof, shall remain intact. Benefit of section 382-B, Cr.P.C. Is also extended in favour of the appellant.
22. Death sentence inflicted upon Khuda Bakhs/convict is not confirmed.