QAZI MUHAMMAD AMIN AHMED, J.--- Nazakat Hussain, 40, henceforth referred to as the deceased, was gunned down at 9:40 a.m. on 1-05-2010 within the area of Malik Market, at a distance of 2 (1/2)
Kilometers from Police Station Airport, Rawalpindi; the incident was reported by his nephew Awais Nasir (PW-11) through statement (Ex.PE) recorded by Kafayat, SI (PW-12) 12:5 am. at Benazir Bhutto Hospital. According to the complainant, during the fateful night, at 9:30 p.m. he came across the appellant while on way home and snubbed him for his obnoxious stare, however, left the scene after a brief altercation, to share the incident with the deceased who took up the issue with the appellant; when approached, instigated by Zahid, co-accused (since absconder), the appellant resorted to repeated fire shots, targeting both the deceased as well as Awais Nasir (PW-11), within witnesses' view.
Dr. Muhammad Ashraf (PW-7) conducted autopsy following day at 9:15 a.m. and noted two entry wounds measuring .75 x .75 cm and .5 x .75 cm on posterior surface of left shoulder and front of abdomen with an exit on mid of right buttock; the injuries damaged the vital organs; excessive bleeding generated hemorrhagic shock resulting into death within few minutes; interregnum between death and post-mortem was estimated as 4 to 20 hours. Awais Nasir (PW-11) was medically examined same day under a police docket at 10:30 a.m. by Dr. Shaheen Akhtar (PW-8); he was noted to have an entry wound measuring .5 x .5 cm on right thigh with corresponding exit.
Muhammad Kafayat, SI (PW-12) carried out spot inspection; collected blood-stained earth and two casings (P5/6), led bullet (P-7), secured vide inventories; arrested on 17-6-2010, pursuant to a disclosure, the appellant led to the recovery of pistol (P-4); indicted on 30-9-2010 before a learned Addl. Sessions Judge, Rawalpindi, he claimed trial, pursuant whereto, besides relying upon forensic reports, prosecution produced as many as twelve witnesses to bring home the charge. Malik Sajid (PW-10) and Awais Nasir (PW-11) furnished ocular account, it constitutes the mainstay of the prosecution case. Forensic Science Laboratory Report (Ex.PT) is in the positive; Zahid, co-accused stayed away from law and was proceeded against accordingly. Upon conclusion, the appellant confronted prosecution evidence with a denial, shifting the blame upon absconder. The learned trial Judge, however, unimpressed by the plea, proceeded to convict the appellant under Section 302(b) of the Pakistan Penal Code, 1860 and sentenced him to death with payment of compensation in the sum of Rs, 100,000/- or six months simple imprisonment in the event of default; he is additionally convicted under Section 324 of the Code ibid and sentenced to ten years rigorous imprisonment with a fine of Rs, 10,000/- or six months simple imprisonment in default of payment thereof; for the .injuries sustained by Awais Nasir (PW-11), he stands convicted under Section 337-F(i) of the Code ibid with direction to pay Daman in the sum of Rs, 250,000/- with benefit of Section 382-B of the Code of Criminal Procedure, 1898, wires whereof, are being impugned through Crl. Appeal No, 137 of 2015 clubbed with Murder Reference No, 62 of. 2016 seeking confirmation of death penalty; since a common thread binds the both, these are being decided through this single judgment.
2. Learned counsel for the appellant contend that plea raised by the appellant sounds more plausible than the story set up in the crime report Ex.PE and, thus, merited acceptance; that the motive asserted by the prosecution does not extend structural support to the prosecution; the bottom line is that prosecution has not been able to prove its case beyond reasonable doubt.
Contrarily, the impugned judgment is defended by the learned Law Officer assisted by learned counsel for the complainant on the ground that through ocular account, duly corroborated by medical evidence, the prosecution successfully drove home the charge, excluding every hypothesis of appellant's innocence; the presence of an injured witness, according to the learned Law Officer, left no space to entertain any hypothesis of appellant's innocence in the absence of any evidential basis to infer substitution or mistaken identity; confirmation of death penalty has been prayed for..
3. Heard. Record perused.
4. Ocular account has been furnished by Malik Sajid (PW-10) arid Awais Nasir (PW-11); they have furnished graphic details of the occurrence; both .of them are in a comfortable unison with each other in their narratives as despite an embarrassingly lengthy cross-examination, no flaw, discrepancy or contradiction could be detected that may possibly reflect upon their credibility; on the contrary, they are found straightforward, consistent and confidence inspiring, having satisfactorily explained their presence at the scene. Fire-arm injury suffered by Awais Nasir (PW-11) goes a long way. The incident was reported with a remarkable promptitude and that excludes possibility of consultations or deliberations. Ocular account, medical evidence, recovery and forensic reports are flawlessly synchronized with one and another in terms of durations, nature of injuries and weapon used on the strength of depositions by the Witnesses, seemingly having no axe to grind and, thus, exclusion of substitution or mistaken identity has validly been argued. The learned Trial Court has rightly placed implicit reliance on prosecution evidence so as to return a guilty verdict and, therefore, no interference is called for. Consequently, Crl. Appeal No, 137 of 2015 fails. However, insofar as question of quantum of sentence qua homicide, to be exacted from the appellant is concerned, we have carefully evaluated the prosecution case. In crime report (Ex.PE), the complainant alleged a chance encounter on fateful day atp.m. with the appellant, blamed as a drug pusher as well as a sodomist, to have obnoxiously stared upon him, taken exception by the former, an incident shared with the deceased, however, what is stated' in the examination-in-chief is that the appellant, 'ferociously looked upon' the witness, who candidly admitted absence of such overture in the past despite multiple face to face encounters. No doubt, motive is not a constituent of the crime and while human reactions and responses in any given situation cannot be visualized or deciphered with precision or certainty, nonetheless, once a seemingly apparent cause for the offence is suggested, it become's incumbent upon the prosecution to reasonably establish the same so as to demand ultimate wage for the crime; it is not the case in hand and on overall analysis of prosecution evidence as well as admissions made by the Investigating Officer with regard to point of time of his arrival at the crime scene at 2:00 a.m. that situated in the front of appellant's house, particularly during load shedding hours, clearly reflect upon the adequacy as well as veracity of motive and the argument that what exactly preceded the occurrence remains shrouded into mystery is not entirely beside the mark and, thus, prosecution's failure to satisfactorily establish the motive constitutes a mitigating circumstance. These circumstances taken together cumulatively make out a case to visit the appellant with alternate penalty of imprisonment for life which in our view, in the given situation, would meet the ends of justice.
Reliance is placed in the following cases:--- Naveed alias Need() & others v. The State & others (2014 SCM R 1464), relevant portion whereof is reproduced below:--- "Upon our own assessment of the evidence available on the record we have felt no hesitation in concluding that the specific motive set up by the prosecution had indeed remained far from being established on the record. The law recently declared by this Court in the case of Ahmed Nawaz and another v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165) and Muhammad Mumtaz and another v. The State and another (2012 SCMR 267) reiterates the settled and longstanding principle that failure of the prosecution to prove the motive set up by it may have a bearing upon the question of sentence and in an appropriate case such failure may result in reduction of a sentence of death to that of imprisonment for life for safe administration of justice."
Ghulam Mohy-ud-Din alias Haji Babu v. The State (2014 SCM R 1034), the relevant portion is advantageously reproduced below:-- "Once the legislature had provided for awarding alternative sentence of life imprisonment, it would be difficult to hold that in all the cases of murder, the death penalty was the normal penalty and should ordinarily be awarded. If the intent of the legislature was to take away the discretion of the court, then it would have omitted from S. 302(b), P.P.C. the alternative, sentence of life imprisonment. Sentence of death and life imprisonment were alternative to one another, however, awarding one or the other sentence essentially depended upon the facts and circumstances of each case."
Consequently, penalty of death is altered into imprisonment for life; amount of compensation and consequence in the event of default are kept intact; sentences shall run concurrently with benefit of Section 382-B of the Code of Criminal Procedure, 1898. Murder Reference No, 62 of 2016 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.