Qazi Muhammad Amin Ahmed, J.--Crl. Appeals Nos.307- J/2012 and 1247 of 2012 by Muhammad Hanif and Saeed Ahmad, convicts, appellants herein, along with Murder Reference No. 290 of 2012 arise out of incident dated 1-7-2009 wherein Muhammad Safdar, 25, hereinafter referred to the deceased, was stabbed to death within the area of Rafiabad, located at a distance of 9 1/4 k.m. from Police Station Saddar Dipalpur District Okara where it was reported straight at 4:10 p.m. by Mst.
Illahi Hussain (PW-1) through application Ex.DA; she blamed the appellants for the crime, as according to her, the deceased was married with Mst. Rani Bibi, acquitted co-accused; the couple was blessed with children, however, the marriage went on rocks and latter went to her parents. On the eventful day, her brother Muhammad Sharif, since acquitted, deceitfully took the deceased to the Dera of Nosher Khan Watto, ostensibly for reconciliation; the complainant along with Husna Bibi (PW-3) followed them, as they were little short of the Dera, Saeed Ahmad appellant surprised the deceased from his rear and clutched him while Muhammad Hanif appellant dealt a dagger blow to the deceased near his heart; this happened, all of a sudden within the view of the witnesses.
Solitary incised wound, caused by a sharp edged weapon, measuring 2 cm x 1 cm, penetrating deep on the upper left front in 11'0 clock position was noted by Dr. Abdul Rehman (CW-1), who conducted autopsy at 1:00 a.m; chest wall, ribs, cartridges, pleura, left lung and blood vessels were found ruptured; violence generated hemorrhagic shock, opined as sufficient to cause death in the ordinary course of nature, occurred within 30 minutes; estimated time between death and post- mortem was noted as 9 to 10 hours.
Muhammad Ismail, SI (CW-6) attended the spot to take various investigative steps that included seizure of blood, forensically reported as of human origin. Muhammad Hanif appellant taken into custody on 15-7-2009, pursuant to a disclosure, led to the recovery of Churra (P-4); remainders of the accused were exonerated and this prompted the complainant to institute a private complaint wherein process was issued against all of them by a learned Addl. Sessions Judge at Dipalpur; indicted on 21-7-2010, they claimed trial, pursuant whereto, prosecution furnished ocular account comprising of three witnesses, nine witnesses were examined as Court witnesses. Muhammad Hanif appellant confronted prosecution evidence with his own story wherein he admitted to have struck the deceased albeit under different circumstances and with a different object; bottom line of his position is that immediately after meeting at the Dera, the deceased assaulted his mother and offended her modesty as well; according to him, as he resisted the deceased, he struck with a Churri tied on the rear of appellant's bicycle and received injury on his chest. Saeed Ahmad appellant as well as acquitted co-accused pleaded false implication. Upon conclusion of trial, the learned trial, Judge unimpressed by the position taken by the appellants proceeded to convict them under Section 302(b) of the Pakistan Penal Code 1860 and sentenced them to death and imprisonment for life respectively with payment of compensation in the sum of Rs.200,000/- each or to undergo six months simple imprisonment in the event of default; the lifer was extended benefit under Section 382-B of the Code of Criminal Procedure, 1898; Rani Bibi and Muhammad Sharif, co-accused were acquitted from the charge. Criminal Appeals as well as Murder Reference bearing a common thread are being decided through this single judgment.
2. Learned counsel for the appellants contend that prosecution case is fraught with doubts, contradictions and improbabilities; that presence of the eye-witnesses at the crime scene is <highly improbable and unnatural and as such their evidence merited outright rejection; that acquittal of co-accused goes a long way to reflect upon the prosecution case; that plea taken by Muhammad Hanif appellant sounds probable and thus merits acceptance. Contrarily, the learned Law Officer assisted by learned counsel for the complainant has defended the impugned judgment on the ground that an innocent person has deceitfully been done to death while making a sincere effort to save his family life. It is concluded that witnesses being natural hailing from the same locality, there was no occasion to entertain hypothesis of improbability of their presence. It is further argued that since the appellant is assigned fatal blow to the deceased, according to the learned Law Officer, acquittal of co-accused attributed inconsequential roles does not adversely impact upon the prosecution case; the bottom line is that prosecution successfully drove home the charge beyond reasonable doubt; confirmation of death penalty has been prayed for.
3. Heard. Record perused.
4. Rani Bibi, real sister of Muhammad Hanif appellant was married with the deceased; the marriage was on rocks and according to the prosecution, deceased attempted more than once for reconciliation without much success; it was in this backdrop that a meeting was scheduled on the fateful day when Muhammad Hanif appellant and the deceased came face to face, in broad daylight. Strained relations between the spouses and intervention of a local notable are the common grounds. In this background, infliction of a solitary Churri blow by Muhammad Hanif appellant is neither improbable nor unnatural and trial Court's reliance upon the witnesses to the extent of Muhammad Hanif appellant is not open to exception as the injury attributed to him is consistent with the weapon allegedly used and found stained with blood of human origin.
Durations given in the autopsy report also coincide with the timings given in the crime report; venue being inside a village Abadi presence of the witnesses cannot be doubted either; plea taken by the appellant is ludicrous to say the least; his culpability can be safely spaced within the framework of prosecution evidence, as every hypothesis of his innocence stands excluded; he has rightly been convicted; Criminal Appeal No. 307J/2012 fails.
However, insofar as case of Saeed Ahmad appellant is concerned, it is structured on entirely different premises; he is alleged to have taken the deceased by surprise in order to facilitate Muhammad Hanif appellant while the former was being deceitfully taken to the venue. The only injury suffered by the deceased is on left side of his chest; this hardly needed any assistance or facilitation and, if at all, he had clutched the deceased, there would have been no occasion for Muhammad Hanif appellant to remain content with single blow; argument that Saeed Ahmad appellant has been taken under a wider net is not seemingly entirely beside the mark; it would be perilous to maintain his conviction, thus, by extending him benefit of doubt, he is acquitted from the charge; Criminal Appeal No. 1247 of 2012 is allowed; he shall be released forthwith, if not required in any other case.
Muhammad Hanif appellant has been sentenced to death; quantum of sentence, to be exacted from him, merits serious reconsideration; matrimonial bond between the spouses was intact and it is prosecution's own case that the deceased made multiple efforts to woo back his wife, whose family also appears to be amenable to a settlement; attempts, however, terminated into a tragedy and what exactly preceded the incident, allegation of deceit notwithstanding, remains shrouded into mystery; solitary blow, though awfully fatal, with a Churra, not a choice instrument of assault in a society infested with lethal weapons in vogue, would also space the hypothesis that the actual background of the occurrence is not being shared with the Court. The above circumstances cumulatively make out a case to visit the appellant with alternate penalty of imprisonment for life, as in the given facts and circumstances of the case, it would meet the ends of justice. Reliance is placed in the case of "Ghulam Mohy-ud- Din alias Haji Babu vs. The State" (2014 SCM R 1034), relevant portion whereof 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 with benefit of Section 382-B of the Code of Criminal Procedure, 1898; amount of compensation and consequences in the event of default are kept intact. Murder Reference No. 290 of 2012 is answered in the NeEative and death sentence is not confirmed.