QAZI MUHAMMAD AMIN AHMED, J.---Raja Muhammad Riasat, 80, and his son Hamid Mehmood, 40/45, hereinafter referred to as the deceased, were done to death on 13-10-2009 at 2:30 p.m. within the area of Chuha Khalsa, at a distance of 12-kilometers from Police Station Kallar Syedin, Rawalpindi; the incident was reported by Tariq Amjad (PW-9) through statement (Ex.PK), recorded by Ijaz Ahmed S.I (PW-10) 3:40 p.m. same day at RHC Kallar Syedan. According to the complainant, his father Raja Muhammad Riasat, deceased, Nazim Union Council Chua Khalsa along with the PWs accompanied officials to the spot reserved to set up a water distribution project when the appellants armed with pistols along with Khudadad acquitted co-accused confronted them; Mouladada appellant made first fire shot hitting Hamad Mehmood deceased on right side below umbilicus followed by a fire shot on the left; third fire shot is attributed to Mutahar appellant landing on the right side of Hamad Mehmood deceased; Mutahar appellant dealt another fire shot hitting Muhammad Riasat deceased on left side of his chest followed by another fire shot by Imran on right side of chest; two consecutive fire shot by Mouladada landed on the left elbow and shoulder of Muhammad Riasat deceased; within witnesses' view, while brandishing their weapons, the appellants decamped from the scene. A dispute over installation of the project served as a motive.
Dr. Mansoor Ahmad (PW-1) conducted autopsy on the dead body of Raja Muhammad Riasat at 9:00 p.m. and noted as many as six injuries that included four entry wounds respectively measuring lx1 cm and 1.5 x 1.5 c.m. on chest and right border of sternum at the level of nipple, right elbow joint with two exits; the injuries damaged the vital organs i,e, heart, lungs and liver and, thus, caused hypovolemic shock and cardio respiratory arrest resulting into immediate death; duration between death and postmortem was estimated as 5-7 hours. Dr. Sajjad Hussain (PW-13) conducted postmortem of Hamid Mehmood, deceased same day, with no reference of time and observed three entry wounds measuring 1.5 x 1.5 cm and 2 x 1.5 cm on left upper arm, right side of chest and front of right cubital fossa of right arm with two exits; the injuries, owing to bleeding, generated hypovolemic shock and cardiopulmonary arrest resulting into death within 10-15 minutes; interregnum between death and postmortem was estimated as 2-8 hours.
Spot inspection by Muhammad Azam, S.I (PW-17) include seizure of blood, 7 casings of 30-caliber (P-6/1-7); subsequently, the investigation was taken over by Safdar Hussain, S.I(PW-16); he arrested the appellants as well as co-accused Khudadad on 4-11-2009; pursuant to a disclosure, the appellants led to the recovery of pistols ( P-7, P-8 & P-9); indicted before a learned Addl. Sessions Judge at Rawalpindi, the accused claimed trial on 21.12.2009, pursuant whereto, prosecution produced as many as seventeen witnesses; of them, Liaqat Ali (PW-8) and Tariq Amjad (PW-9) furnished ocular account, prosecution's main reliance; confronted by the appellants with a denial, alleging their false implication, however, one of them, namely, Mauladad admitted the liability excluding his sons.
The learned Additional Sessions Judge unimpressed by the plea, vide impugned judgment dated 29-01-2010 acquitted Khudadad, co-accused attributed proverbial exhortation, however, proceeded to convict the appellants under Section 302(b) of the Pakistan Penal Code, 1860 and sentenced them to death on two counts with payment of compensation in the sum of Rs,200,000/- or to undergo six months simple imprisonment in the event of default, vires whereof, are being challenged through Crl. Appeal No,264 of 2010 clubbed with Murder Reference No,34 of 2010 seeking confirmation of death penalty; Criminal Appeal No,381 of 2010 by Tariq Amjad complainant is aimed at reversal of acquittal; there being a common thread inter se, these are being decided together through this single judgment.
2. Learned counsel for the appellants contends that prosecution case is fraught with doubts, improbabilities and inconsistencies and as such appellants' conviction with capital punishment is not sustainable; that evidence disbelieved qua acquitted co-accused cannot be relied upon in the absence of independent corroboration, according to the learned counsel, hopelessly lacking; that motive set up by the prosecution is false, even not proved, as such does not extend structural strength to the prosecution case. Contrarily, the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment and prayed for confirmation of death penalty on the ground that two innocent persons were done to death in a most callous and brutal manner; that prosecution case is firmly structured on ocular account furnished by witnesses, whose presence at the crime scene given the nature and locale of injuries cannot be doubted; while arguing Crl. Appeal No, 381 of 2010, learned counsel for the complainant argued that there was no occasion for the learned trial Judge to take a different view vis-a-vis the respondent, squarely situated in the community of intention with co-accused and, thus, according to him interference was most called for as the impugned acquittal resulted into miscarriage of justice.
3. Heard. Record perused.
4. Ocular account has been furnished by Liaqat Ali (PW-8) and Tariq Amjad (PW-9); they have related graphic details of the occurrence as well as events collateral therewith, in a comfortable unison with each other; despite lengthy cross-examination, learned counsel for the appellants has not been able to point out any discrepancy, contradiction or infirmity that may discredit their testimony; being straightforward, consistent and confidence inspiring, both the witnesses have satisfactorily explained their presence at the spot; seemingly no animus or grudge against the appellants, they have no axe to grind against them. There is no space to entertain hypothesis of mistaken identity or substitution, otherwise "a rare phenomena antithetical to retributive human instinct. Ocular account is duly corroborated by medical evidence; timings given in the autopsy report coincide with the point of time mentioned in complaint (Ex.PK). Casings secured from the spot dispatched earlier to arrest of the accused were found. wedded with pistols P-8, P9 & P-10.
Plea taken by Mouladad appellant to take upon himself the entire blame is manifestly a desperate attempt to save the family. The learned trial Court 'has rightly returned a guilty verdict.
Consequently, Crl. Appeal No,264 of 2010 fails. However, insofar as question of quantum of sentence to be exacted from the appellants is concerned, it warrants serious reconsideration. It is prosecution's own case that inauguration of a water supply scheme in the village brought the appellants and the deceased face to face with no previous background of any serious enmity;, calamitous death of a father and son, though awfully unfortunate, a situation cropped up all of a sudden wherein Muhammad Mutahar and Muhammad Imran appellants reacted under the sway of their father with a barrage of fire shots that collectively played havoc are the aspects that cannot be lost sight of. Certainly, pain and anguish endured by the deceased's family cannot be comparatively quantified so as to commensurate with quantum of sentence, nonetheless, suggestion of the ultimate wage for the crime involving a father and his two sons would go too far.
It has been held in the case of Ghulam Mohy-ud-Din alias Haji Babu v. The State (2014 SCM R 1034), "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."
Thus, alternate penalty of imprisonment for life would meet the ends of justice. Consequently, penalty of death is altered into imprisonment for life; sentences shall run concurrently with benefit of Section 382-B of the Code of Criminal Procedure, 1898; amount of compensation and consequence in the event of default are kept intact MURDER REFERENCE No, 34 of 2010 is answered in the NEGATIVE and death sentence is NOT CONFIRMED.
5. As a necessary corollary of above findings, Crl. Appeal No 381 of 2010 stands dismissed.