ABDUL SAMI KHAN, J.---Through this single judgment, we intend to dispose of Criminal Appeal No,579 of 2012 filed by Nasir alias Nasiree appellant and Reference sent by the learned trial Court under Section 374, Cr.P.C. for confirmation or otherwise, of the sentence of death awarded to the appellant, numbered as Murder Reference No,177 of 2012, as both these matters have arisen out of one and the same judgment dated 13.03.2012 passed by the learned Additional Sessions Judge, Gujranwala in case FIR No,45/2006 dated 11.02.2006 under sections 302, 324, 148 and 149, P.P.C.
Police Station Tatley-Aali District Gujranwala whereby the appellant Nasir alias Nasiree was convicted and sentenced as under:-- Under Section 302(b), P.P.C. to death with compensation to the tune of Rs,5, 00,000/- (Rupees Five Hundred Thousand only) as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. and in default thereof to further undergo simple imprisonment for six months.
2. The prosecution's case unfolded in the complaint Ex.PA got lodged by Shahbaz Ahmad (PW-1) that on 11.02.2006 at about 9.30 p.m. the complainant along with his brother Muhammad Nawaz, his nephew Suleman Ahmad son of Iftikhar were going to village from their Dera Muwashian and when they reached in the village near Church, from the village the nephew of complainant namely Rizwan Ahmad son of Iftikhar Ahmad and Shakeel son of Ammonal Misih caste Christian were also coming for going to Dera Muwashian. The accused Qaisar Mehmood armed with pistol .30 bore, Nasir Mahmood alias Nasiree (appellant) armed with pistol 30 bore sons of Farooq Ahmad, Pervaiz Ahmad son of Nasar Ullah armed with carbine along with two unknown accused were already in ambush there. As soon as the accused saw Rizwan, the accused Qaisar made fire shot with his pistol .30 bore which hit him on his mouth at left jaw and second fire shot was made by Nasir alias Nasiree with his pistol which hit him at neck near left shoulder, due to which Rizwan fell on the ground. He succumbed to his injuries and died at the spot whereas accused Pervaiz Ahmad made fire shot with his carbine which hit Shakeel at his face and head, due to which he also fell on the ground. The unknown accused continued aerial firing at the spot. The occurrence was witnesses by complainant and others in the light of bulb.
Motive behind the occurrence was that in the Local Bodies Election of 2005, a quarrel took place between the complainant and accused party thereafter a compromise was effected due to the intervention of respectable but the accused party nourished grudge and murdered nephew of the complainant namely Rizwan and also caused firearm injury to Shakeel Masih in order to murder him.
3. After registration of FIR, investigation of the case was conducted by Munir Ahmad S.1. (PW-11) and after completion of the same, report under section 173, Cr.P.C. was accordingly submitted in the learned trial Court for initiation of regular trial against co-accused Qaisar Mehmood and Pervaiz who were convicted and sentenced by the then learned Additional Sessions Judge, Gujranwala vide judgment dated 19.12.2006. After arrest of appellant Nasir alias Nasiree, Sultan Mahmood SI (PW-12) got transferred him from District Jail Sheikhupura, to District Jail Gujranwala and conducted the investigation of the case and after completion of the same report under section 173, Cr.P.C. was accordingly submitted in the learned trial Court for initiation of regular trial. At the commencement of trial, after observing legal formalities, learned trial Court framed charge against the appellant Nasir alias Nasiry on 17.01.2011, to which he pleaded not guilty and claimed trial.
4. To substantiate its version at the trial, the prosecution produced as many as thirteen witnesses during trial before the learned trial Court. Ocular account was furnished by Shahbaz Ahmad, complainant (PW-1), Shakeel Masih injured (PW-2) and Muhammad Nawaz (PW-3). Munir Ahmad, SI/investigating officer (PW-12) and Sultan Mehmood, SI/investigating officer (PW-13) are the investigating officers who both deposed about various steps taken by them during the investigation of this case. The medical evidence was furnished by Dr. Nawazish Ali (PW-13) who on 11.02.2006 medically examined Shakeel Masih and on i2.02.2006 conducted the post mortem examination on the dead body of Rizwan Ahmad. Rest of the prosecution witnesses are more or less formal in nature. After tendering in evidence the reports of Chemical Examiner Ex.P.P and Serologist Ex.PQ, the prosecution evidence was closed.
5. The appellant in his statement recorded under section 342, Cr.P.C. professed his innocence and pleaded false implication in this case. Neither he opted to get record his statements under section 340(2) Cr.P.C. in disproof of allegations levelled by the prosecution against him, nor he produced any defence evidence.
6. At the end of trial, after thrashing entire evidence and evaluating the arguments advanced by learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence Nasir alias Nasiree appellant as mentioned in paragraph No,1 of this judgment.
7. It has been argued by learned counsel for the appellant that the prosecution has failed to prove the case against the appellant beyond reasonable shadow of doubt. The prosecution witnesses made dishonest improvements in order to bring their testimony in line with the medical evidence.
On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant submits that the prosecution has proved the guilt of the appellant to the hilt by producing injured witness whose presence at the place of occurrence is beyond any doubt.
8. We have heard the learned counsel for the parties at length, have given our anxious consideration to their arguments and have also minutely scanned the record with great care and caution.
9. The occurrence in this case took place on 11.02.2006 at 9.30 p.m. whereas the matter was reported to the police through application of the complainant 10.30 p.m. and formal FIR was chalked out at 10.45 pm on 11.02.2006 whereas the distance between the place of occurrence and that of Harr Chowki is twelve kilometers. Even the post-mortem examination on the deadbody was conducted in this case al 4.00 a.m. on 12.02.2006 and Dr. Nawazish Ali, Medical Superintendent, Tehsil Headquarter Hospital, Kamoke (PW13) while appearing in the witness-box before the learned trial court also, stated that time between the death and the post-mortem examination of the dead body was 6 to 10 hours which timing absolutely commensurate with the timing mentioned by the complainant in the FIR and stated by the eye-witnesses before the learned trial court. All these facts show that the matter had been reported through application of Shahbaz Ahmad, complainant (PW1) within shortest possible time and we have not seen any unusual or unconscionable delay in registration of the FIR which could cause harm to the case of the prosecution. We are, therefore, of the view that the FIR in this case had been chalked out without any deliberations or consultations.
10. The ocular account in this case has been furnished by Shahbaz Ahmad, complainant (PW1), Shakeel Masih, injured victim (PW2) and Muhammad Nawaz (PW3). Although the occurrence in this case has taken place during night yet admittedly the source of light has not only been mentioned in the FIR but the same is also mentioned in un-scaled site-plan (Ex. PJ) and scaled site-plan (Ex.
PC). The appellant was duly named in the FIR wherein specific roles of making fatal fire-shot with pistol .30 bore at the deceased has been attributed to him which landed on his neck near left shoulder. All the eyewitnesses mentioned above had explained time, date, place of occurrence, specification of weapon of offence inasmuch as each and every segment of the occurrence in a straightforward and clear-cut manner during their statements adduced before the learned trial court in addition to that they had also explained the mode and manner of taking place the occurrence. Although they had to endure a lengthy cross-examination by the defence wherein the learned counsel for the defence had asked multiple questions to shatter their credibility yet all of them remained consistent on all material points and remained stick to the involvement and culpability of the appellant in this case. During, their evidence they had sufficiently proved their presence at the place of occurrence at relevant time and witnessing the occurrence vis--vis identifying the appellant at the spot. The learned counsel for the appellant has vociferously argued that in the FIR the eye-witnesses have maintained that fire made by Qaiser, co-convict (since died) hit deceased on face at right jaw which is an exit wound (injury No, 2) which fact shows that they were not present at the scene of crime at relevant time. He has also drawn our attention that in the FIR the complainant has attributed firearm injury to the appellant on left side of neck near the shoulder of the deceased whereas both the other eye-witnesses have attributed firearm injury to the appellant on the back of his chest which fact shows that it was a blind murder and eye- witnesses were not present at the spot. Had they seen the occurrence at the spot they would have mentioned exact seat of injury sustained by the deceased. We, however, remained unable to appreciate this submission of the learned counsel for the appellant because it is not expected from an eye-witness that he would note exact location/seat of injuries on the person of victims especially in a situation when assailants were making firing at them, rather the eye-witnesses in such an austere and hazard situation would try to save themselves from the clutches of assailants to save their own life. We may also observe here that in the occurrence, like the one, where the deceased sustained firearm injury at the hands of appellant and during the same occurrence one eyewitness, i,e, Shakeel Masih (PW2) also received firearm injury on his face and the unknown persons also kept on firing in the air, failure on the part of an eye-witness to give accurate seat of injury in such a nasty situation cannot be considered a ground to disbelieve the eye-witnesses. The evidence adduced by such eye-witnesses cannot be disbelieved only on this trivial point-when otherwise they have sufficiently explained not only their own presence but presence of the assailants at the scene of crime at relevant time inasmuch as the whole occurrence in an un- ambiguous manner. All the eye-witnesses have shown their natural conduct at the place of occurrence and they have brought the true story in the same manner as they have witnessed at the spot, thus, the variance with regard to seat of injury attributed to co-convict (since died) pointed out by the learned counsel for the appellant as well as the exact seat of injury on the person of deceased by the eyewitnesses is not fatal to the case of the prosecution. Even otherwise layman is not expert enough to explain accurate descriptions, calculations and design made by the assailants who emerged at the scene of crime all of a sudden to bump off his enemy.
Moreover mentioning wrong seat of injury has never been considered as ground for acquittal of an accused who has been charged in a murder case. Reliance in this regard can be placed upon the cases of Sultan Ahmad and another v. The State (PLD 1970 SC 206) wherein it has been held as under:-- "The only criticism that has been repeated before us against their statements is that they have moulded their versions to bring them in conformity with the medical evidence. It was argued that according to the F.I.R. made by P.W. Nazar Hussain, both the appellants had fired two shorts each at Mst. Rabia, but as the injuries on her person were found by medical evidence to consist of only two entrance wounds with corresponding exit wounds, the number of the shots fired at Mst. Rabia was reduced to two at the trial, one each by the two appellants. The Courts below have considered this discrepancy and have come to the view that the number of injuries caused to Mst.
Rabia as mentioned in the FIR was due to the mistaken impression of the first informant, P. W.
Nazar Hussain, with regard to the number of shots actually fired. Viewing the circumstances of the case as a whole, we agree with the Courts below that this discrepancy is not of a nature which should result in the total rejection of the statements of these two eye-witnesses, namely, Nazar Hussain and Talib Hussain whose .account of the occurrence is otherwise true and has been rightly accepted by the Courts below."
The same view thereafter has also been endorsed by the Hon'ble Supreme Court of Pakistan in the cases of Muhammad Uris and 5 others v. The State (1971 SCM R 92) and Mir Muhammad v. The State (1995 SCM R 610).
It goes without saying here that the injury attributed to the appellant at the neck near the shoulder of the deceased is not disputed which is an entry wound and the same has not been attributed to anybody else except the appellant. The appellant cannot take premium of injury attributed to his co-convict, if any. Admittedly Qaiser was also convicted by the learned trial court and was awarded life imprisonment and his appeal before this Court was abated to his extent due to his death. It is also significant to point out here that through the same appeal Criminal Appeal No, 08 of 2007, Pervaiz Ahmad another convict has also challenged his convictions and sentences passed by the learned trial court and vide judgment dated 22.04.2015 his conviction to the extent of an offence under section 324, P.P.C. for causing injuries to Shakeel Masih, injured victim (PW2) has been reduced to that which he has already undergone and that judgment has not been challenged before any higher forum, so the same has already attained finality. If the case against Pervaiz Ahmad co-convict is proved and his conviction has attained finality then the case against the appellant also surely proved because both of them were convicted with regard to one and the same occurrence. However, in separate proceedings this Court cannot take contrary view to the extent of conviction of appellant.
11. Apart from what has been discussed above, we have also observed that being residents of the same locality the parties to this case are known to each other so there is no chance of mistaken identity of the appellant in this case. Admittedly, the complainant Shahbaz Ahmad (PW1) was maternal uncle of the deceased, Shakeel Masih (PW2) was close friend of the deceased whereas Muhammad Nawaz (PW3) was his close relative so being close kith and kin of the deceased they would not allow the real culprit to go scot-free and substitute him with an innocent person. It is now well settled principle of law that the fact of relationship of the witnesses with the complainant or with the deceased, would not be sufficient to smash the evidence adduced by such witnesses.
Such PWs can be believed if intrinsic worth of their testimony inspires confidence of the court and the same leads to an inference that the witnesses were present at the scene of the crime at relevant time and contention of the learned counsel for the appellant that all the eye-witnesses are either related or close friends of deceased has got no force. Reliance is placed on the case of Muhammad Ahmad and another v. The State and others (1997 SCM R 89). Even otherwise the rule requiring independent corroboration of testimony of interested witnesses is a rule of prudence which is not to be applied rigidly in each case. There can be cases like the present one where implicit reliance can be placed on the testimony of an interested witness if it otherwise inspiring confidence of the Court. Even otherwise due to lack of civic sense independent persons do not come forward to become eye-witness in murder cases in order to avoid enmity with the accused.
Reliance in this regard can be placed on the cases of Muhammad Ahmad and another v. The State and others (1997 SCM R 89) and Afzaal Ahmad v. The State (2003 SCM R 573).
12. Another important fact in this case is that the eye-witnesses, i,e, Shakeel Masih (PW2) who is an independent injured witness of the occurrence has also received fire-arm injuries on his face and head. He is also a natural witness in this case because occurrence has taken place near the church and he was going to his Dera at the time of occurrence on fateful night. Admittedly during murderous assault upon the complainant party he has received injuries at the hands of the assailants (Pervaiz Ahmad) so token of receipt of injury on his person itself proves his presence at the place of occurrence at relevant time. He has categorically pointed accusing fingers towards the appellant as the assailant who had fired with his pistol .30 bore at the deceased. So the ocular account in this case has been furnished by injured victim and his testimony of course does not leave any possibility of false implication of the appellant in this case especially when he himself has no axe to grain against the appellant. Thus, his evidence cannot be disbelieved by us. The minor discrepancies, highlighted by learned counsel for the appellant in the statements of the eye- witnesses, is a result of passage of time between the occurrence and statements recorded before the learned trial court by the eye-witnesses.
13. Another significant feature in this case needs to be discussed here is that just after committing the occurrence the appellant has made himself fugitive from law and he remained absconder for a period of three years, three months and seventeen days in spite of the fact that his real brother Qaiser and cousin Pervaiz Ahmad were facing trial in the same criminal case in which he was also an accused. It is also worth mentioning here that the appellant was arrested in this case when he was already in jail in connection with some other criminal case. It is trend in our society that innocent person immediately approached the police and courts of law to prove their innocence but the appellant did not do so because his guilty conscious forbade him to surrender before the police to avoid from criminal prosecution. He tried his level best to save his skin from criminal prosecution in connection with this case which fact blatantly proved his involvement and culpability for committing murder of Rizwan deceased. Law has now quite settled on the point that absconscion of an accused can be considered as corroborative piece of evidence against him J when it is considered in conjunction with the ocular testimony and other pieces of evidence.
Reliance in this regard can be placed on the case of Qaisar Khan and others v. The State and others (2009 SCM R 471) wherein the Hon'ble Supreme Court of Pakistan has held as under:- "No doubt abscondence by itself is not sufficient to convict an accused person but is strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. When an accused persons remains fugitive from the law for long time without any plausible and reasonable explanation, then his conduct after the occurrence becomes indicative of his guilt when it is considered in conjunction with the ocular and circumstantial evidence."
14. The medical evidence in this case has been furnished by Dr. Nawazish Ali, Medical Officer, Tehsil Headquarter Hospital, Kamoke, District Gujranwala (PW13) who has medically examined Shakeel Masih, injured victim (PW2) and found four injuries on his face and head. These injuries have also been borne out from his medico-legal certificate (Ex. PN). The doctor has also conducted Post- mortem Examination on the dead body of the deceased and prepared Post-mortem Examination Report (Ex. PQ). He while appearing before the learned trial court has sufficiently explained time, date, seat of injuries and weapons used for committing the murder of the deceased. The doctor has categorically stated that injury No, 1. (attributed to the appellant) sustained by the deceased was sufficient to cause death of the deceased. Although exact locale of injury was not explained by the complainant in the FIR yet the fact remains that there is only one firearm injury on the body of deceased and that has been attributed to the appellant only. This injury is not attributed to anyone else except the appellant. Even otherwise all the three eye-witnesses have attributed this injury to the appellant and while appearing before the learned trial court they have categorically stated that it was the appellant who has caused fatal injury on the person of the deceased which caused his death. We have no manner of doubt in our mind to observe that the medical evidence in this case is in line with the ocular account and the same provides full support to the ocular account in this case. quarrel or thereafter compromise between the parties. It is settled law that once a motive is alleged by the prosecution it is the duty of prosecution to prove the same and if prosecution failed to prove motive it can be taken as a mitigating circumstance in favour of the accused as for as question of sentence is concerned. The real cause of death of the deceased is shrouded in mystery. Hence, we have come to a definite conclusion that prosecution has failed to prove motive.
15.So far as the recoveries of weapons of offence, i,e, pistols .30 bore from the appellant is concerned which has been taken into custody by the investigating officer vide recovery memo Ex.
PF. we have observed that during his first visit at the place of occurrence the investigation officer has not collected crime-empties of pistol .30 bore, therefore, there is no report of Forensic Science Laboratory in this case. Therefore, the recovery effected in this case is inconsequential and the same remained unable to provide corroboration to the ocular account.
16.The prosecution has alleged motive as previous enmity between the parties as according to the statements of eye-witnesses in the local election 2005 there had been altercation between the complainant and the appellant but the prosecution has failed to produce any documents in this regard to support the motive. Even otherwise motive was between the complainant and the appellant so in the backdrop of such a situation the actual target of the appellant should have been complainant and not Rizwan deceased with whom the appellant has no previousor bitterness. No independent person has been produced by the prosecution before the learned trial court to prove motive regarding previous.
17. For what has been discussed above the prosecution has proved the case against the appellant beyond any reasonable doubt through confidence inspiring evidence in shape of ocular account and medical evidence. However, at the same time, we have observed some peculiar features of this case and we are of the view that this case carries some exceptional/mitigating circumstances in favour of the appellant which are as under:-- a) The motive set up by the prosecution has not been believed by us and law is quite settled that when the prosecution set up a motive in the FIR it was none else but the prosecution who has to prove the same with cogent and trustworthy evidence. b) The appellant has been attributed one fire-shot to Rizwan deceased and he has not repeated fire upon him despite having ample opportunity. Recovery in this case is also inconsequential.
18. After attending all the circumstances of this case we are of the definite view that sentence of death awarded to the appellant is not justified in this case and the capital sentence of death passed against the appellant by the learned trial court under section 302(b), P.P.C. appeared to us to be harsh enough to be sustained as motive set up by the prosecution has not been proved in this case. Law is quite settled by now on the point that motive part of the prosecution story can be considered to determine the quantum of sentence of an accused in a murder case, if motive is not proved then this fact can be taken as mitigating circumstance. Reliance is placed on the cases of Muhammad Yaseen v. The State (2011 SCM R 905), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCM R 1165) and Hasil Khan v. The State (2012 SCM R 1936) wherein it has been held as under:-- "We agree with the proposition that motive is not sine qua non for the proof of commission of the crime and at time motive is not known to any other person other than the deceased or the accused person which never surfaced on the record. However, it cannot be denied that motive is always very relevant to determine the quantum of sentence that might be awarded to a person against whom charge of murder is proved."
We have further fortified our view from the judgment reported as Haji Muhammad Sadiq v. Liaquat Ali and others" (2014 SCM R 1034), wherein the Hon'ble Supreme Court of Pakistan has held as under:-- "A single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment. No clear guideline, in this regard can be laid down because facts and circumstances of one case differ from the other, however, it becomes the essential obligation of the Judge in awarding one or the other sentence to apply his judicial mind with a deep thought to the facts of a particular case. If the Judge/Judges entertain some doubt, albeit not sufficient for acquittal, judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows. So it is better to respect the human life, as far as possible, rather to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed....
In any case, 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 circumstances to adopt alternative course by awarding life imprisonment instead of death sentence."
We would also like to observe here that an accused is entitled for the benefit of an extenuating circumstance while deciding his question of sentence. Reliance is placed upon Mir Muhammad alias Miro v. The State (2009 SCM R 1188). In another judgment reported as Ansar Ahmad Khan Barki v. The State and another (1993 SCM R 1660), the Hon'ble Supreme Court of Pakistan has held that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to an accused for award of normal penalty of death. We have also fortified our view qua the quantum of sentence by the case reported as 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 SCMR 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 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 context may also be made to Iftikhar Ahmad Khan v. Asghar Khan and another (2009 SCMR 502)."
This fact along with other circumstances is considered by us as mitigating circumstance in favour of the appellant. So taking the same into consideration in favour of the appellant we feel that the capital punishment of death awarded to the appellant will not serve the interests of justice in this case. The above narrated peculiar features of this case convince us that life imprisonment to the appellant would be absolutely in-apt with the circumstances of this case. Thus, we convert the death sentences of Nasir alias Nasiree appellant into life imprisonment under section 302(b), P.P.C.
19.However, convictions to the extent of payment of compensation amounting to Rs, 500,000/- (Rupees five hundred thousand only) to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default of payment of compensation to further undergo simple imprisonment for six months is maintained and upheld. The benefit of section 382-B, Cr.P.C. is, however, extended in favour of the apellant Criminal Appeal No,579 of 2012 is, therefore, dismissed with the modification in the sentence of the appellant.
20.Murder Reference No,177 of 2012 is answered in the negative and the sentence of death passed against Nasir alias Nasiree appellant is not confirmed.