' SADAQAT ALI KHAN, J.---This single judgment shall dispose of Criminal Appeal No, 106-J of 2013 filed by Shahid alias Shahidi appellant (against his conviction) and M.R. No, 177 of 2013 sent by the learned Trial Court for confirmation of the death sentence of appellant Shahid alias Shahidi or otherwise as both the above-stated matters have arisen out of the same judgment dated 25.4.2013 passed by learned Additional Sessions Judge, Ferozewala accofding to which the appellant was convicted and sentenced as under:- "Shahid alias Shahidi was convicted under Section 302(b), PPC and sentenced to death as alongwith compensation' Rs, 5,00,000/- payable to the legal heirs of the deceased u/s. 544-A, Cr.P.C. And in default thereof further undergo six months' S.I."
' Whereas his co-accused namely Sajjad alias Shehzad was acquitted by the Trial Court in case F.I.R. No, 626, dated 23.9.2010 under Section 302/34, PPC police station, Sharakpur District Sheikhupura.
2. The facts of the case have been stated by Muhammad Javaid 'complainant PW-5 real brother of Aamir deceased in his statement before the learned Trial Court which is hereby reproduced for narration of the facts:--- "On 23.09.2010 I alongwith Aamer deceased and Yousaf were present in our home. It was at about 12.45 p.m. When Shahzad alias Shahu accused present in Court came to our home and called my brother Aamar deceased and they both went to the bazaar. I and Muhammad Yousaf on suspicion chased them and went outside behind the deceased Aamar and accused Shahzad alias Shahu where we were at about a distance of 10/12 karams from them. When Aamar deceased and 'accused Shahzad reached in front of shop of Baba Nawab, Haddianwala at Fattuwala bazaar.
Suddenly the accused Shahid-_ alias Shahidi present before Court armed with pistil 30 bore came and he made firing, upon Aamar deceased. (First fire hit on the chest near right. Armpet of Aamer whereas second fire shot hit on chest near left shoulder, third fire shot hit on elbow of right arm, fourth fire shot hit on wrist of left hand and the fifth fire shot hit on his abdomen). Both the accused while brandishing the pistol fled away whereas Aamer deceased fell down on the ground and succumbed to the injuries at the spot. The motive behind the occurrence was that accused Shahid took the mobile of my brother Aamar deceased 2/3 days prior to the occurrence to use the same and when my brother asked for return of mobile, he became angry who in consultation with the Rescued Shahzad Murdered my brother. The occurrence except me was also witnessed by Yousaf and Arif PWs. I informed the police who, reached at the spot. I presented written application Ex.PD before the for registration of F.I.R. On which I marked my thumb impression as a token of its correctness."
3. After registration of the case, investigation started and on completion of the same report under Section 173, Cr.P.0 was submitted in the Trial Court.
4. Learned Trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 5.3.2011 against the appellant/convict and his co-accused (since acquitted) under Section 302/34, PPC to which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Dr. Zahoor Ahmad PW- 1, Rab -Nawaz Shah Draftsman PW-2, Tajdin PW-3, Muhammad Jehangir PW-4, Muhammad Javed PW-5, Muhammad Yousaf PW-6, Muhammad Younis PW-7, Imran Ahmad, ASI (T) PW-8, Muhammad Irshad, ASI PW-9, Ghulam Farid, SI PW-10 whereas PW namely Muhammad Arif was given up by throes elution being unnecessary and after tendering documentary evidence i,e, report of Chemical Examiner (Ex.PN), report of Serologist (Ex.P0) and report of FSL (Ex.PP) closed the prosecution evidence.
6. Medical evidence has been furnished by Dr. Zahoor Ahmad PW-1 who stated as under:- "Dr. Zahoor Ahmad PW-1 stated that 23.9.2010 at 8:00 p.m. He conducted the post-mortem examination on the dead-body of Aamir deceased and observed as under:--- ' Injuries:
1. A fire-arm wound of entry 1.5 x .7 cm with collar of abrasions, 7 cm from left nipple at 11-0, clock position making an exit 1.5 x 1.5 cm, 5 cm from right nipple at 10-0, clock position.
2. A fire-arm wound of entry 1x1 cm on outer side of left shoulder going deep. Blackening and tattooing present. On dissection skin, muscles, blood vessels both lungs and underlying ribs on the right side were damaged. Chest and cavity were full of blood. One bullet was recovered from right lung, sealed, signed and handed over to the police. B. A fire-arm wound of entry .7 x .7 cm just right to umbilicus making an exit on the back of mid abdomen lx1 cm, 1 cm right to midline.
' On dissection, skin, muscles, major blood vessels, small intestines and vertebrae with spinal card were damaged. Abdominal cavity was full of blood.
4. A fire-arm wound of entry .7 x .7 cm on back of left arm, 3 cm above elbow making an exit wound 1 x 1 cm on front of mid arm, underlying bone was fractured.
5. A fire-arm wound of entry .7 x .7 cm on back of left forearm, 3 cm below elbow making an exit 1 x 1 cm on front of mid fore-arm, underlying bone was fractured.
6. A fire-arm wound of entry .5 x .5 cm on back of right elbow making an exit, 1x1 cm on inner side of elbow, muscles were damaged.
7. An abrasion 4 x 4 cm on the back of right side of mid chest. Stomach had semi-digested food and urinary bladder contained 3 to 4 oz of urine. Death was immediate and time between death and postmortem was 6 to 12 hours.
' Opinion: ' In my opinion death occurred due to severe hemorrhage and shock and injury to vital organs. All injuries collectively except injury No, 7 and injuries No, 1 to 3 individually, are sufficient to cause death of a human being in natural course of death."
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 Shahid alias Shahidi replied as under:- "PWs deposed against me on party fiction because one person namely Saifullah is the Lumberdar of my village Fattuwala and he asked me to work with him on his agricultural land and on his Dera but I refused to do so and harsh words were exchanged between us prior to the alleged occurrence. So, on the direction of Lumberyard Saifullah, the complainant party falsely entangled me in this case and the PWs deposed against me to their close, relationship with the deceased. On the day and time of alleged occurrence I was actually present at Butchakey at the hoCise of my sister. I have nothing to do with the alleged occurrence."
8. After conclusion of the trial, learned Trial Court while acquitting Sajjad alias Shehzad co-accused of the appellant, convicted the appellant Shahid alias Shahidi with above-stated sentence. Hence this appeal.
9. Learned counsel for the appellant has contended that:---
(i) -the judgment of the Trial Court dated 25.4.2013 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 25.4.2013 may kindly be set aside and appellant/convict may be acquitted.
10. On the other hand, learned DPG 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 appellant as well as learned DPG and perused the record.
12. The detail of prosecution case as given by Muhammad Javed complainant PW-5 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 23.9.2010 at 12.45 p.m. Whereas F.I.R. Was registered on the same day at 2:20 p.m. On the written application (Ex.PD) of Muhammad Javaid complainant PW-5 real brother of Aamir deceased.
14. Place of occurrence is the passage in front of the shop of Baba Nawab 'Hadianwala'.
15. Prosecution has introduced following accused in this case:---(1) Sajjad alias Shehzad (this accused has been acquitted by the Trial Court through the 'impugned judgment and complainant/State has not filed any appeal against his acquittal) (2) Shahid alias Shahidi (appellant).
16. Muhammad Javaid PW-5 and Muhammad Yousaf PW-6 claim themselves to be the eye- witnesses of the occurrence. They stated in their statements that Shahid alias Shahidi appellant made fire shots upon Aamir deceased which hit on different parts of his body.
17. Both these witnesses have absolutely no grudge or to falsely implicate the appellant in the present occurrence. They were cross-examined at length but their evidence could not be shaken during the process of cross-examination. They corroborated each other on all material aspects of the case. They have also established their presence at the time of occurrence at the place of occurrence with their stated reasons. Their evidence is straightforward, trustworthy and confidence inspiring.
18. Medical evidence has been furnished by Dr. Zahoor Ahmad PW-1 whose detail are mentioned in para-6 of the judgment, therefore, no need to repeat the same to avoid duplication and repetition.
However, medical officer has observed fire-arm injuries on the person of Aamir deceased attributed to appellant which were ante-mortem in nature and were sufficient to cause death in ordinary course of nature. Therefore, we are of the view that medical evidence has fully supported the ocular account furnished by above-mentioned eye-witnesses.
19. Muhammad Javaid PW-5 (complainant) stated regarding motive story of the occurrence in his written application (Ex.PD) as under:--- {{URDU TEXT}}
20. No specific time and place of altercation allegedly took place between appellant and Aamir deceased two days prior to the present occurrence has been mentioned in the F.I.R. As well as in the statements of Muhammad Javaid PW-5 and Muhammad Yousaf PW-6. Further, matter of above-mentioned altercation and mobile has not been reported to the police.
21. Considering above, we are of the view that prosecution has failed to prove motive story of the occurrence.
22. Ghulam Farid, SI PW-10 I.O. Of this case stated in his statement (examination-in-chief that on 7.10.2010 Shahid alias Shahidi appellant was arrested by him and on 16.10.2010 he during interrogation disclosed and got recovered pistol 30-bore (P-8) from his house. Positive report of FSL (Ex.PP) shows that crime empties allegedly recovered from the place of occurrence and pistol 30- bore (P-8) were received in the office together. In view of the above, possibility of manufacturing of the crime empties before their dispatch to the said laboratory could not be ruled out of consideration and thus positive report of FSL (Ex.PP) is not believable and same is hereby discarded. Reliance is placed on case titled "Masood Aslam alias Shada v. The State" (2002 P.Cr.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."
23. Adverting to the defense plea of the appellant Shahid alias Shahidi, he stated in answer to question "why this case against you and why the PWs made statements to involve you? As under:- "PWs deposed against me on party faction because one person namely Saifullah is the Lumberdar of my village Fattuwala and he asked me to work with him on his agricultural land and on his Dera but I refused to do so and harsh words were exchanged between us prior to the alleged occurrence. So, on the direction of Lumberdar Saifullah, the complainant party falsely entangled me in this case and the PWs deposed against me to their close relationship, with the deceased. On the day and time of alleged occurrence I was actually present at Butchakey at the house of my sister. I have nothing to do with the alleged occurrence."
' 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. Considering above, it is concluded that appellant Shahid alias Shahidi has failed to prove his defence plea and learned Trial Court has rightly discarded his defence plea with sufficient reasons.
24. In view of the above discussion, even if evidence of motive and recovery of pistol 30-bore (P-8) is excluded from consideration, even then, prosecution has proved its case against Shahid alias Shahidi appellant through ocular account furnished by above-mentioned witnesses supported by medical evidence discussed earlier.
25. Now, coming to the quantum of sentence, we have noted some mitigating circumstances in the present case. Firstly, recovery of pistol 30-bore (P-8) has become inconsequential in present case with the reasons mentioned in para 22 of this judgment. Secondly, motive story of the occurrence has also been disbelieved with the reasons mentioned in . Pares 19 to 21 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.
26. 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 titled Mir Muhammad alias Miro v. The State (2009 SCM R 1188) wherein the Hon'ble Supreme 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.
27. Further reliance is placed on case reported as "Zafar lqbal and others v. The State" (2014 SCM R 1227) in which Hon'ble Supreme Court, of Pakistan has observed at pages 1235 & 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 needs 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 lftikhar 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 fire-arm from this appellant. At the same time appellant Asghar lqbal 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 Iftikhar. 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 circumstances, on the basis of which the appellants could not be made liable to the maximum punishment provided under Section 302(b), PPC, 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".
28. Considering above, conviction of Shahid alias Shahidi appellant under Section 302(b), PPC for committing the murder of Aamir (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.
29. Consequently, with the above-said modification in the impugned judgment, Criminal Appeal No, 106-J of 2013 filed by Shahid alias Shahidi appellant is hereby dismissed. Murder Reference No, 177 of 2013 is answered in NEGATIVE and death sentence of Shahid alias Shahidi appellant is NOT CONFIRMED.