Sadaqat Ali Khan, J.--This single judgment shall dispose of Criminal Appeal No, 234-J of 2013 filed by Waqas Ahmad @ Khota (against his conviction) and M.R. No, 230 of 2013 sent by trial Court for confirmation of death sentence of Waqas Ahmad @ Khota appellant or otherwise, as both the above stated matters have arisen out of the same judgment dated 22.6.2013 passed by learned Addl. Sessions Judge, Lahore, according to which appellant was convicted and sentenced as under:-- Waqas Ahmad @ Khota s/o Iftikhar Ahmad 302(b), PPC He was sentenced to Death as Tazir' on two counts along with compensation Rs, 1,00,000/- payable to the legal heirs of the deceased u/S. 544A, Cr.P.C. and in default thereof further undergo six months S.I.
In case FIR No, 1005 dated 05.10.2008 u/S. 302/324/34, PPC Police Station Shafiqabad, District Lahore.
2. The facts of the case have been stated by Muhammad Asif complainant (PW2) real brother of Muhammad Atif deceased, in his statement before the learned trial Court, which is hereby reproduced for narration of the facts:-- "Stated that on 05.10.2008 at about 02.15 am (night) there was a function of Mehandi in the Muhalla where I along with my brother Atif, Muhalla Dar Salman Butt son of Muhammad Sadiq, Ijaz Ahmad son of Ch. Miraj Din Caste Jutt Resident of Ali Pura Data Nagar Badami Bagh Lahore, Muhammad Iqbal son of Miraj Din Caste Rajput Resident of Street No, 7 Mali Pura Lahore was present in said ceremony. Waqas @ Khota son of Iftikhar Hussain Resident of Street No, 7 Mali Pura Lahore accused present in the Court and accused Amjad Ca, Goga Caste Dogar Resident of Street No, 7 Mali Pura Lahore were also present there with whom a quarrel took place with my brother Atif and Muhalla Dar Salman Butt. The said quarrel was intervened by the Muhalla Dars and was settled. Then both the accused went away from there. After some time Waqas ( Khota armed with pistol .30-bore, Amjad @ Goga armed with pistol .30-bore and one unknown person empty handed came there on motorcycle. The unknown person was driving the motorcycle and remaining two accused were sitting behind him. Accused Amjad @ Goga raised lalkara that a lesson be taught to Atif & Salman Butt for quarreling with them. Upon which accused Waqas @ Khota made a straight fire which hit my brother Atif on right side of his chest. Accused Amjad @ Goga made fire shot which hit Salman Butt on his right arm. They fell on the ground and we hide near the wall. The said accused fled away on their motorcycle while resorting to firing. The occurrence was witnessed by me, Muhammad Iqbal and Ijaz Ahmed PWs. Thereafter we shifted both the injured to Mayo Hospital in emergency ward where my brother Atif succumbed to the injuries. Salman Butt remained admit in emergency ward.
Motive behind the occurrence was that a quarrel took place sometime prior to the occurrence between the accused person and the deceased and injured PW due to this grudge the accused persons committed the occurrence."
3. After registration of the case, investigation started and on completion of the same report under Section 173, Cr.P.C. was submitted in the trial Court.
4. Learned trial Court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 09.3.2010 against the appellant under Section 302/324/34, PPC to which he pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Muhammad Siddique PW1, Muhammad Asif PW2 (complainant), Muhammad Iqbal PW3, Mukhtar Ahmad PW4, Syed Muhammad Younas Bukhari draftsman PW5, Sher Khan, S.I PW6, Muhammad Akram PW7, Syed Hussain Haider, Inspector PW8, Murad Rasool PW9, Dr. Muhammad Iqbal PW10, Meer Kashif All Khalil, SHO PW11, PW7, Javaid Ahmad PW8, Muhammad Sarfraz PW9, Rana Muhammad Ameen S.I, PW10, Muhammad Iqbal PW11, Dr: Rafaqat All PW12, whereas PW namely Shaukat Ali & Muhammad Asif 13581/C, were given up by the prosecution being unnecessary and Muhammad Suleman Butt & Ijaz Ahmad PWs were given up being won over and after tendering documentary evidence i,e, (Exh.PG) closed the prosecution evidence.
6. Medical evidence has been furnished by Dr. Muhammad Iqbal PW10 and Dr. Rafaqat Ali PW-12 whose details are as under:-- Dr. Muhammad Iqbal PW10 stated that on 5.10.2008 he medically examined Muhammad Atif injured(now deceased) and observed following injuries on his person:-- "Injuries.
1-A. A lacerated wound of 2 x 1 em circular with inverted margins and collar of abrasion on the lower chest area at mid-clavicle area 5 cm from mid-line on the right side.
1-B. A lacerated wound of 4 x 3 cm with everted margins on the left back of lower chest 7 cm from mid-line.
Opinion: In my opinion, all the above stated injuries were anti-mortem in nature and by fire-arm. Cause of death in this case was Injury No, 1 which damaged colon, liver, spleen, pancreas and left kidney and its complication.
It was a hospital death and the probable time between death and post-mortem was 07 hours and 10 minutes.
On the same day i.e (5.10.2008) Dr. Rafaqat Ali, PW12 also conducted post-mortem examination on the dead body of Muhammad Atif s/o Allah Rakha deceased and observed as under:-- Injuries:
1. A lacerated wound 1 x 1 cm on front of right side of lower part of chest, 5 cm from mid-line, 13 cm from umbilicus at 11-o-clock position.
2. A lacerated wound 1.5 x 1.5 cm on back of middle part of left side of chest.
On the same day Dr. Rafaqat Ali PW-12 also conducted medico legal examination of Salman Butt s/o Sadiq injured and observed as under:-- Injuries:
1. A. lacerated wound 1.5 cm x 0.5 cm on front of right elbow.
A lacerated wound 1.5 x 1.5 cm on medial side of right lower arm 6 cm above from right elbow.
Opinion.
Injuries No, 1 & 2 were kept under observation for surgical notes/treatment notes. Injuries were caused by fire-arm weapons and duration between injury and examination was within 04 hours.
After conducting M.L. examination I handed over the police carbon copy MLR with operation Notes Form.
7. On the other hand, statement of Waqas Ahmad alias Khota appellant was recorded under Section 342, Cr.P.C. who refuted the allegations so leveled against him. The appellant has not opted to appear as a witness under Section 340(2), Cr.P.C. and produced in oral defence evidence Salman Butt DW1, Nisar Ahmad DW2 and Muhammad Nabeel DW3 and in reply to question "why this case against you and why the PWs deposed against you?" Waqas Ahmad alias Khota appellant replied as under: -- "I do not know the complainant or the deceased. I have been falsely involved in this case. It was an aerial firing during the marriage ceremony. It was an aerial firing by me and other relatives of the deceased and the deceased himself. Meanwhile there came a noise that deceased Muhammad Atif has been murdered. I do not know by whom the fire hit at the deceased. Thereafter we fled away from the spot. I am innocent and have not committed the murder."
8. After conclusion of the trial, learned trial Court convicted Waqas, Ahmad alias Khota appellant with above said sentence. Hence this appeal.
9. Learned counsel for the appellant has contended that:--
(i) the judgment of the trial Court dated 22.6.2013 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 pf law;
(iv) lastly submitted that instant appeal may be accepted and the judgment of the trial Court dated 22.6.2013 may kindly be set aside and appellant/convict may be acquitted.
10. On the other hand, learned D.P.G assisted by learned counsel for the complainant has vehemently opposed the appeal and submitted that:--
(i) the 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 D.P.G assisted by learned counsel for the complainant and perused the record.
12. The detail of prosecution case 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 05.10.2008 at about 02.15 am (night), whereas FIR was registered on the same day (05.10.2008) at 10.30 am (day time) on the written application (Exh.PA) moved by Muhammad Asif complainant PW2, real brother of Muhammad Atif deceased.
Injured of this case is Suleman Butt (not produced by the prosecution as witness). Place of occurrence is the street. Prosecution has introduced following accused in this case:-- (1) Amjad @ Goga (this accused has been exonerated by the complainant party during the investigation and has not been Summoned by the learned trial Court to face the trial as stated by the learned DPG)
(2) Waqas @ Khota (appellant).
14. Muhammad Asif PW2, (real brother of Muhammad Atif deceased) stated in his statement (examination-in-chief) as under:-- "Stated that on 05.10.2008 at about 02.15 am (night) there was a function of Mehandi in the Muhalla where I along with my brother Atif, Muhalla Dar Salman Butt son of Muhammad Sadiq, Ijaz Ahmad son of Ch. Miraj Din Caste Jutt Resident of Ali Pura Data Nagar Badami Bagh Lahore, Muhammad Iqbal son of Miraj Din Caste Rajput Resident of Street No, 7 Mali Pura Lahore was present in said ceremony. Waqas @ Khota son of Iftikhar Hussain Resident of Street No, 7 Mali Pura Lahore accused present in the Court and accused Amjad Goga Caste Dogar Resident of Street No, 7 Mali Pura Lahore were also present there with whom a quarrel took place with my brother Atif and Muhalla Dar Salman Butt. The said quarrel was intervened by the Muhalla Dars and was settled. Then both the accused went away from there. After some time Waqas @ Khota armed with pistol .30-bore, Amjad @ Goga armed with pistol .30-bore and one unknown person empty handed came there on motorcycle. The unknown person was driving the motorcycle and remaining two accused were sitting behind him. Accused Amjad @ Goga raised lalkara that a lesson be taught to Atif & Salman Butt for quarreling with them. Upon which accused Waqas @ Khota made a straight fire which hit my brother Atif on right side of his chest. Accused Amjad @ Goga made fire shot which hit Salman Butt on his right arm. They fell on the ground and we hide near the wall. The said accused fled away on their motorcycle while resorting to firing. The occurrence was witnessed by me, Muhammad Iqbal and Ijaz Ahmed PWs. Thereafter we shifted both the injured to Mayo Hospital in emergency ward where my brother Atif succumbed to the injuries. Salman Butt remained admit in emergency ward.
Motive behind the occurrence was that a quarrel took place sometime prior to the occurrence between the accused person and the deceased and injured PW due to this grudge the accused persons committed the occurrence."
15. Muhammad Iqbal (maternal cousin of complainant and Muhammad Atif deceased) PW3 has supported his evidence.
16. These two witnesses have absolutely no grudge or to falsely implicate the appellant in the present case. 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 straight forward, trustworthy and confidence inspiring.
17. Medical evidence has been furnished by Dr. Muhammad Iqbal, PW10 who conducted post- mortem, examination on the dead body of Muhammad Atif t eased and. Dr. Rafaqat Ali PW-12, who conducted medical exatniteon of Muhammad Atif deceased in injured condition whose details are mentioned in para 6 of this Judgment, therefore there is no need to repeat the same to avoid duplication and repetition. However, medical officer has observed fire-arm entry wound on the person of Muhammad Atif deceased attributed to the appellant which was ante-mortem and was sufficient to cause death in ordinary course of nature, therefore, medical evidence has fully supported the ocular account furnished by above mentioned' eyewitnesses.
18. Muhammad Asif (complainant PW2) has stated in his statement (examination-in-chief) regarding motive of the occurrence as under:-- "Motive behind the occurrence was that a quarrel took place sometime prior to the occurrence between the accused person and the deceased and injured PW due to this grudge the accused persons committed the occurrence."
Likewise, Muhammad Iqbal (maternal cousin of Atif deceased PW3) stated in his statement (examination-in-chief) regarding motive of the occurrence as under: "Motive for the occurrence was that some quarrel took place prior to the occurrence and thereafter accused came again at the spot and committed the occurrence."
No independent person has been produced by the prosecution to support motive story.
Muhammad Asif complainant PW2 stated in his cross-examination that when the quarrel took place between the deceased and accused person, he was present at that time there in the ceremony. He further stated that the quarrel took place in the house of Nisar (who has not been produced by the prosecution to support the motive story rather has been produced by the defence as DW-2). Considering the facts of this case we are of the view that the prosecution has failed to prove its motive.
19. Recovery of .30-bore pistol P4 on pointing out of the appellant on 14.10.2009 by Meer Kashif Ali Khalil, Inspector (PW11) is inconsequential in the present case in absence of positive report of FSL regarding matching of the crime empties recovered from the place of occurrence with the weapon of offence.
20. Adverting to the defence plea of the appellant, he stated in answer to question "why this case against you and why the PWs deposed against you?" Waqas Ahmad @ Khota appellant replied as under:-- "I do not know the complainant or the deceased. I have been falsely involved in this case. It was an aerial firing during the marriage ceremony. It was an aerial tiring by me and other relatives of the deceased and the deceased himself. Meanwhile there came a noise that deceased Muhammad Atif has been murdered. I do not know by whom the fire hit at the deceased. Thereafter we fled away from the spot. I am innocent and have not committed the murder."
21. The appellant has not opted to appear u/S. 340(2), Cr.P.C. and produced in oral defence evidence Saleman Butt (DW-1) Nisar Ahmad (DW2), and Muhammad Nabeel (DW3). Considering above, it is concluded that appellant Waqas Ahmad @ Khota has failed to prove his defence plea and learned trial Court has rightly discarded his defence plea with sufficient reasons.
22. In view of the above discussion, even if evidence of motive and recovery of .30-bore pistol (P4) is excluded from consideration, A even then prosecution has proved its case beyond shadow of doubt r against Waqas Ahmad @ Khota appellant through ocular account furnished by above mentioned eye-witnesses supported by medical evidence discussed earlier.
23. Now, coming to the quantum of sentence, we have noted some mitigating circumstances in this case. Firstly, recovery of .30- bore pistol (P4) on pointing out of the appellant has become inconsequential in the present case in absence of the positive report of FSL regarding matching of the crime empties recovered from the place of occurrence with the weapon of offence. Secondly single fire shot has been attributed to the appellant and there is no allegation against the appellant for repetition of the fire-arm injuries on the person of Muhammad Atif deceased. Thirdly motive story has been discarded with the reasons mentioned in para-18 of this judgment. It is not determinable in this case as to what was the actual 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.
24. It is well recognized principle by now that the accused is entitled to the benefit of doubt as an extenuating circumstance while c deciding his question of sentence as well. Reliance is placed on case titled Mir Muhammad alias Miro vs. 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."
25. 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 & 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 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 fire-arm 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 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 circumstance, 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".
26. Considering above, conviction of Waqas Ahmad @ Khota appellant under Section 302(b), PPC for committing the murder of Muhammad Atif 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 also maintained and upheld. Benefit of Section 382-B, Cr.P.C. is given to the appellant.
28. Consequently, with the above said modification in the impugned judgment, Criminal Appeal No, 234-J of 2013 is hereby dismissed. Murder Reference No, 230 of 2013 is answered in NEGATIVE and death sentence of Waqas Ahmad. @ Khota appellant is NOT CONFIRMED