M. TABASSUM AFTAB ALVI, C.J.---The captioned Appeals and Reference arise out of the same judgment dated 16.08.2010. passed by the learned District Court of Criminal Jurisdiction, Mirpur, therefore, these are being consolidated and decided together through the instant judgment.
2. The facts precisely stated are that complainant, Muhammad Ramzan son of Haji Jalaldeen, submitted a written report to Aamir Shahzad Nawabi, SHO, at District Hospital, Mirpur, on 11.08.2006, at 22:35, stating therein that Muhammad Haneef's house is situated in front of his house. Miskeen is brother-in-law of Muhammad Haneef and now-a-days Muhammad Haneef's daughters came from England to stay there. On 10.08.2006, his wife was sitting in courtyard of the house, when daughters of Muhammad Haneef and Miskeen, standing on roof, hurled abuses. Thereupon, he called for Muhammad Haneef. on 11.08.2006, at 6:30 p.m., and was telling, him about abuses, meanwhile, Muhammad Haneef's wife Mst. Nasreen, also arrived there and at once started hurling abuses. He asked Muhammad Haneef, to forbid his wife; however, threatening him went inside the house. Thereafter, he and Muhammad Haneef also went to their houses. It was further averred that complainant along with his brother Muhammad Yaseen, Adnan (son) and Asif son of Yusuf, had seated in courtyard of his house, meanwhile, at about 8:30 p.m., they heard sound of hitting stones on main gate. On hearing sound, Muhammad Yaseen, Adnan, Asif and complainant went at the gate and as soon as Muhammad Yaseen, opened gate, accused (i) Nadeem, (ii) Muhammad Haneef, (iii) Miskeen, were armed with pistols, whereas (iv) Waseem, was armed with Kalashnikov like weapon, they at once started firing upon Muhammad Yaseen, who received two bullets injuries on chest, by the firing of Nadeem, accused, and bullets also landed on left side of his throat and shoulder, by the firing of Muhammad Haneef, accused, whereas two bullets hit on his right thigh by the firing of Miskeen, who sustaining serious injuries fell down and accused-persons fled away. The occurrence was done by accused in a preplanned manner. Besides complainant, the occurrence was witnessed by Adnan, Asif and many other people. Muhammad Yaseen, victim, was being brought to Hospital, who succumbed to the injuries on the way.
3. As per the aforesaid report, Aamir Shahzad Nawabi, S.H.O., sent an epistle to Police Station City, Mirpur, for registration of case; hence, case bearing FIR No,125/2006, was registered in offences under sections 302 and 34, A.P.C., at 10:35 p.m., against accused-persons, on 11.08.2006. The postmortem of Muhammad Yaseen, deceased, Exh.PHII, was conducted by Dr. Aatif Anwar, C.M.O., .D.H.Q Hospital, Mirpur. After registration of the case, investigation was started by police. On 12.08.2006, police recovered, blood of deceased, P-1, through cotton (vide recovery memo Exh.PE), three empties of 30-bore pistol, P/2-4, four empties of 30-bore P/5-8, one magazine P-9, and five live rounds P/10-14 (vide recovery memo. Exh.PD), two stones P/15-16 (vide recovery memo Exh.PG) and bloodstained clothing of deceased, Shalwar and Qameez, P-17 and P-18, (vide recovery memo Exh.PJ), in presence of Abdul Rahman and Shahid Iqbal P. Ws. Thereafter, accused were arrested and on pointation of Nadeem Iqbal, accused, a .30-bore pistol bearing No,59, P-19, along with a magazine, P-20, and five live rounds, P-21 to P-25, were recovered from hayrack of a room containing chaff, on 13.08.2006, in presence of the aforesaid P.Ws (vide recovery memo Exh.PK). A 222 rifle P-26 along with a magazine P-27, at the instance of Muhammad Waseem, accused, was also recovered from hayrack of a room containing chaff, on 13.08.2006, in presence of the aforesaid P.Ws (vide recovery memo Exh.PL). Muhammad Haneef, accused, pointed out that after occurrence, he concealed pistol in the house of Muhammad Miskeen, hence, in presence of the aforesaid witnesses, he got recovered an unnumbered .30-bore pistol, P-28, along with a magazine, P-29, and on hilt of its body, 66 was incorporated, from an iron drum lying in a room containing chaff, on 28.08.2006 (vide recovery memo Exh.PM). On pointation of Muhammad Miskeen, accused, an unnumbered .30-bore pistol, P-30, along with a magazine, P-31, was recovered from the same iron drum lying in a room containing chaff, in presence of the aforesaid P.Ws. on 28.08.2006 (vide recovery memo Exh.PN). The site plan and its keynotes Exh.PDD were also got prepared from Matloob Hussain Patwari, on 18.08.2006. The report of Forensic Science Laboratory Punjab, Lahore, dated 11.09.2006, the letter written by Director FSL Punjab to Superintendent of Police District, Mirpur, dated 20.09.2006, the report of Chemical Examiner Punjab, Lahore, dated 04.09.2006, and the report of Serologist dated 10.02.2007, are part of the file, however, the same were not exhibited.
4. After completion of investigation, accused-persons. namely, Nadeem lqbal, Muhammad Haneef, Muhammad Miskeen and Muhammad Waseem, were challaned in offences under sections 302, 34, A.P.C. and 13/20/65, Arms Act, before concerned Court, whereas, Asif Mahmood, was exonerated by police under section 169, Cr.P.C. The District Court of Criminal Jurisdiction, Mirpur, after submission of challan, recorded statements of accused-persons under section 242, Cr.P.C, on 30.10.2006, who pleaded not guilty. Thereupon, prosecution was ordered to produce evidence in support of its case, which was produced. The evidence adduced by prosecution against accused-persons, was put to them as required by section 342, Cr.P.C., on 30.01.2010. The accused Muhammad Haneef and Muhammad Waseem, opted to get recorded their statements on oath, whereas Nadeem lqbal and Muhammad Miskeen, denied the same.
5. The learned District Court of Criminal Jurisdiction, Mirpur, after conclusion of trial and hearing arguments, awarded death sentence as 'Tazir' to Nadeem Iqbal, accused, under section 302(b), A.P.C. and 03 years simple imprisonment under section 13/20/65, Arms Act, whereas accused- persons, Muhammad Haneef alias Godar, Muhammad Miskeen and Muhammad Waseem, while extending them benefit of doubt, were acquitted of the charges, vide the impugned judgment dated 16.08.2010; The appellant-convict, Nadeem lqbal, feeling aggrieved from conviction and sentences, has filed Appeal No,40/2010 dated 19.08.2010. The complainant, Muhammad Ramzan as well as Mst. Asia Bi, widow of Muhammad Yaseen, deceased, preferred Appeal No,41/2010 dated 24.08.2010, against convict-appellant, Nadeem lqbal, for altering his death sentence from 'Tazir' to 'Qisas' and for awarding punishment under law to acquitted-respondents, whereas Reference No,39/2010, dated 18.08.2010, was sent by District Court of Criminal Jurisdiction, Mirpur, for confirmation of death sentence of Nadeem Iqbal, convict-appellant. The aforesaid Appeals as well as Reference are the subject matter of the instant judgment.
6. Raja lnamullah Khan, the learned Counsel for convict-appellant and acquitted-respondents- accused, narrated roles of accused-persons attributed to them by prosecution that Muhammad Yaseen, deceased, received two bullets injuries of .30-bore pistol on his chest by the hands of Nadeem Iqbal, accused, two bullets injuries of .30-bore pistol on left side of his throat and shoulder by the firing of Muhammad Haneef, accused, and two bullet injuries of .30-bore pistol on his right thigh by the firing of Miskeen, whereas Muhammad Waseem, accused, was ascribed to be armed with Kalashnikov like weapon; however, 222-bore rifle was recovered from him. The learned Counsel pointed out that except Nadeem Iqbal, accused, other accused-respondents were acquitted of the charges, whereas according to prosecution story, same role was attributed to Nadeem lqbal, accused; however, he was awarded death sentence as 'Tazir'. He stressed on the point that as per prosecution story, incident took place at about 8:30 pm, however, prosecution neither disclosed the source of light in FIR nor in statements of P.Ws. recorded under section 161, Cr.P.C. and it is admitted by prosecution witnesses that at the time of occurrence, due to power load shedding, light was off; hence, identification of accused-persons was a serious question mark in prosecution story; however, later on, when at the stage of bail of Muhammad Waseem, aged 17 years, the point of light was raised, on 16.12.2006, then prosecution made a vital improvement in statements that at the time of occurrence a Generator was on, and the trial Court while discussing upon the same point in its impugned judgment, at page 65, held that at the time of occurrence, due to power load shedding, light was off and prosecution stance, regarding existence of Generator light at the time of occurrence, was declared doubtful and in Court's opinion, identification of all the accused-persons at the time of occurrence, happens to be difficult; therefore, when identification of all the accused-persons was question mark in prosecution story, then it was a strong mitigating circumstance for acquittal of Nadeem lqbal, convict-appellant; hence, he was too entitled to be acquitted of the charges. He submitted that motive of murder. as set-up by prosecution, is that Muhammad Haneef's and Miskeen's daughters hurled abuses to Ramzan's wife, was shrouded in mystery, because according to prosecution story, accused had grudge with Muhammad I lance f, but astonishingly Muhammad Yaseen deceased, was hit despite the fact that Muhammad Haneef was present at the spot: however, he was not hit by accused- persons; hence, extreme penalty is not warranted. He further argued that Nadeem Iqbal, convict, was sentenced only on the basis of FSL report that seven recovered crime empties were matched with 30-bore pistol bearing Nos,59 and 66, recovered from Nadeem lqbal, convict, whereas 66 number 30-bore pistol was shown to be recovered from Muhammad Haneef, accused, vide recovery memo Exh.PM, while the aforesaid FSL report was not exhibited/tendered in evidence; therefore, prosecution case was fully suspicious, on the basis of which the aforesaid convict entailed acquittal. The learned Counsel contended that as per statement of investigating officer, recovery witnesses were already present at the place of recoveries of pistols, which means they were planted witnesses. He stressed on the point that if all the seven recovered empties, were fired from the pistol recovered from Nadeem Iqbal. convict, then prosecution was badly damaged, because according to eye-witnesses, the aforesaid accused fired only two shots upon deceased, which makes the prosecution case highly doubtful and a very strong mitigating circumstance for acquittal of Nadeem lqbal, accused, too. He contended that as per prosecution story, Muhammad Haneef's daughters hurled abuses to Ramzan's wife, but at the time of occurrence neither Muhammad Ramzan, nor his son Adnan, were hit by accused-persons, which means that ,occurrence did not take place in the manner, as alleged by prosecution. Ile contended that no bullet holes were found on clothing of deceased and sizes of bullets on the person of deceased were different in sizes. He further contended that as per prosecution story Muhammad Yaseen, deceased, opened main gate and they were coming behind him; however, this story is negated by the statement of Muhammad Asif P.W, who deposed that main gate was closed, hence, he took out his motorcycle from the gate of neighbourer. which creates suspicious that occurrence vas witnessed by P.Ws. The learned Counsel maintained that according to prosecution story many other people witnessed occurrence; however, none of them was cited as prosecution witness. He further emphasized that other natural witnesses, who were inmates of Muhammad Ramzan's house, also not cited as witnesses. The learned Counsel stressed on the point that place of occurrence was not the same, as alleged and shown in site plan, firing was attributed to three accused-persons, but neither any bullet hit on wall or to witnesses, who were coming behind victim. The learned counsel contended that according to copy of 'Aks-Masavi', empties were recovered from other street which was situated at East-Northern side; hence, the aforesaid recovery lost value. He pointed out that during postmortem three pieces of bullet were recovered and sent to serologist, but report was not brought on record, from which it could not be determined whether the same were related to .30-bore pistols or something else; hence, the aforesaid evidence was withheld by prosecution. The learned Counsel contended that although the report of Forensic Science Laboratory Punjab, Lahore, dated 11.09.2006, the letter written by Director FSL Punjab to Superintendent of Police District, Mirpur, dated 20.09.2006, the report of Chemical Examiner Punjab, Lahore, dated 04.09.2006, and the report of Serologist dated 10.02.2007_ are part of the file, however, the same were not exhibited in evidence: therefore, the same could not be read against accused-persons. He pointed out that as per prosecution story many other people were present on spot, who were not associated as P.Ws, rather related and interested witnesses were cited; hence, their statements were not reliable. He submitted that supplementary statement recorded under section 161, Cr.P.C. cannot be considered. He further contended that there was nothing on record that investigating officer was imposed non-confidence by prosecution during investigation of the case. The learned Counsel submitted that prosecution case is full of doubts; therefore, by considering overall facts and circumstances of the case, all accused-persons entail acquittal. The learned Counsel finally prayed that by accepting Appeal No,40/20,10, Nadeem Iqbal, convict, may also be acquitted of the charge of murder. The learned Counsel; in support of his arguments, cited the following case law:- i. 2008 SCR 552. ii. 2010 SCR 75, iii 2017 SCM R 344.
7. Conversely, Mr. Khalid Rasheed Chaudhary, the learned Counsel for complainant, submitted that FIR was lodged promptly without any considerable delay, which ruled out false implication of accused-persons in the case. He further contended that all accused-persons came at the scene of occurrence, armed with lethal weapons, so element of pre-meditation is also present. He contended that all accused-persons were nominated in FIR with overt acts and occurrence was done in a desperate manner. The learned Counsel maintained that natural eye-witnesses were present, who were cited in FIR, and they got recorded their statements in support of the same. He agitated that element of common intention was also present; therefore, all accused-persons were vicariously liable. The learned Counsel argued that accused-persons did not show any motive against eye-witnesses, to implicate them in the case falsely and even no such defense was taken during cross-examination. He contended that medical evidence, like postmortem and statement of doctor, is in line with prosecution version, which is strong corroboratory evidence to ocular testimony. The learned Counsel further submitted that recoveries of crime empties along with other articles from the scene of occurrence and crime weapons from accused-persons, are also corroboratory evidence, which was proved through recovery witnesses. The learned Counsel pointed out that statement of investigating officer regarding presence of recovery witnesses, already at the place of recovery, shows questionable conduct of investigation officer, who tried to support accused-persons; therefore, the same cannot be relied upon. He contended that statements of eye-witnesses are very much clear and there is no material contradiction therein; however, some minor discrepancies cannot be considered. He pointed out that not a single witness was confronted with his previous statement recorded under section 161, Cr.P.C, which was requirement under Article 140 of Qanun-eShahadat Order, and if a witness is not confronted with his previous statement and no explanation is sought from the witness, then contradiction cannot be taken into consideration. The learned Counsel contended that motive-of the case was also proyed through ocular evidence, which is in line with prosecution story. The learned Counsel argued that site plan is also corroboratory evidence, which was proved by prosecution. He contended that it is case of direct evidence; therefore, site plan and other documentary evidence, cannot be given preference on evidence of eyewitnesses. The learned Counsel submitted that no valid reasons were given by the trial Court for acquittal of other accused persons; hence, judgment of the trial Court is not sustainable. The learned Counsel pointed out that judgment of the trial Court is completely silent about not awarding death sentence as 'Qisas', to principal accused, Nadeem Iqbal, whereas, in cases where proof of Qatl-i-amd liable to 'Qisas', as required under section 304, A.P.C, is not available, the accused are liable to be convictedand sentenced under section 302(b), A.P.C., however, in the instant case, eye-witnesses were found 'Aadil' during purgation and prosecution fully proved its case for awarding sentence of death as 'Qisas', but the trial Court failed to consider this aspect of the case and wrongly awarded death sentence as 'Tazir'. instead of death as 'Qisas'. He submitted that although report of Forensic Science Laboratory Punjab, Lahore, the letter written by Director FSL Punjab to Superintendent of Police District, Mirpur, the report of Chemical Examiner Punjab, Lahore, and the report of Serologist, were not exhibited; however, the same can be considered in case of circumstantial evidence, whereas in the instant case direct evidence is available, which will prevail. He further submitted that site plan is not vital piece of evidence in cases of direct evidence. The learned Counsel pointed out that evidence of related eye-witnesses cannot be ignored until and unless enmity of witnesses with accused is proved and they are natural witnesses. The learned Counsel 'contended that accused-persons were not strangers; hence, their identification was not doubtful, especially so when Ramzan P.W, deposed in his supplementary statement recorded on 13.09.2006, that at the time of occurrence, light was on through Generator power source and other P.Ws. narrated details of occurrence; therefore, argument of the learned Counsel for accused-persons upon source of light is futile. The learned Counsel contended that place of occurrence is the same, as alleged by prosecution, which4actum is supported from site plan. The learned Counsel contended that from the style of cross-examination, firing at the spot is admitted. He further argued. that no recovery memo of the pieces of bullet was prepared. The learned Counsel further submitted that sizes of injuries could be different, as deceased was fired from different points by accused-persons. He contended that blunt injuries could be caused due to fall down of deceased. The learned Counsel submitted that prosecution established its case against accused-persons beyond reasonable shadow of doubt; therefore, by accepting complainant's appeal, all accused-persons may be awarded death as 'Qisas', who were vicariously liable for death of Muhammad Yaseen, deceased. He finally submitted for dismissal of cross appeal, filed by convict-appellant, Nadeem Iqbal, and placed reliance upon the following authorities:- I. PLD 1983 SC 211.
II. PLD 1996 SC 122.
III. 1996 M LD 1681.
IV. 1996 PCr.LJ 1522.
V. 1997 SCM R 1537.
VI. 1997 PCr.LJ (SC (AJ&K)) 865.
VII. 1998 SCR 330.
VIII. PLD 2001 SC 333.
IX. 2001 PCr.LJ (SC (AJ&K)
X. 2002 CLC 749 XI. PLD 2001 SC 107.
XII. PLD 2002 SC 558.
XIII. 2003 SCM R 647.
XIV.2008 SCR 552.
XV.2010 SCR 75.
XVI. 2014 SCR 821.
XVII2015 SCR 147.
XVIII. 2015 SCR 1007 XIX. 2017 PCr.LJ 649.
XX.2016 SCR 373.
8. Raja Sohail Shamim, the learned Assistant Advocate General, appearing on behalf of State, fully owned and supported arguments of the learned Counsel for complainant. He. placed reliance upon PLD 1996 SC 122 and submitted for awarding death penalty to all the accused-persons in accordance with law.
9. We have given our due consideration to the arguments addressed at Bar by the learned Advocates for parties and, gone through the record of the case with utmost care.
10. The prosecution case, as per FIR lodged by Muhammad Ramzan, complainant, is that he and Muhammad Haneef, accused, are neighbourer and his house is situated in front of Muhammad Haneef's house. On 10.08.2006, complainant's wife was sitting in courtyard of her house, when daughters of Muhammad Haneef and Miskeen, accused-persons, standing on the roof top of their house, hurled abuses. Thereupon, complainant, in the evening of 11th August, 2006, at about 6:30 p.m., called for Muhammad Haneef, on the gate in order to , tell him about abuses, meanwhile, Muhammad Haneef's wife Mst. Nasreen, also arrived there, who at once started hurling abuses.
Upon this, complainant asked Muhammad Haneef, to forbid his wife; however, she threatening him went inside the house, whereas complainant and Muhammad Haneef, accused, also went towards their houses. Thereafter, complainant along with his brother Muhammad Yaseen, Adnan (son) and Asif, sat on cots in courtyard of the house, meanwhile, at about 8:30 p.m., they heard some sound of stones striking on main gate. On hearing sound, Muhammad Yaseen, Adnan, Asif and complainant went at the gate and as soon as Muhammad Yaseen, opened gate, accused (i)
Nadeem, (ii) Muhammad Haneef, (iii) Miskeen, were found armed with pistols, whereas (iv)
Waseem, was armed with Kalashnikov like weapon, who at once started firing upon Muhammad Yaseen, due to which, he received two bullet injuries on chest, by the hands of Nadeem, accused, and bullets injuries on left side of his throat and shoulder, by the firing of Muhammad Haneef, accused, whereas two bullet hit on his right thigh by the firing of Miskeen, who receiving serious injuries fell down and accused-persons fled away. Besides complainant, the occurrence was witnessed by Adnan, Asif and many other people. Muhammad Yaseen, victim, was being brought to Hospital, who succumbed to the injuries on the way.
11. The prosecution produced 12 witnesses, out of 15, in support of its case. There are three eye- witnesses in the instant case, namely, Muhammad Ramzan, complainant, (P.W.1), Adnan Ramzan (P. W.2) and Muhammad Asif (P. W.3). The statements of the aforesaid eye-witnesses were recorded by the trial Court on 16.12.2006, 26.12.2006 and 09.01.2007, respectively, which were sufficiently reproduced by the trial Court in its judgment; however, we have minutely gone through the evidence of the aforesaid eyewitnesses. They deposed on the point of firing attributed to accused-persons that on 11.08.2006, they along with Muhammad Yaseen, deceased, were sitting in the courtyard of Muhammad Ramzan and were talking, meanwhile, electricity went off and Adnan started Generator. They again sat to gossip, meanwhile, at about 8:30 p.m., they heard some sound of stone striking on main gate, thereupon, Muhammad Yaseen, deceased, went at the gate and they followed him. They saw in light of bulb that as soon as Muhammad Yaseen, opened gate, accused (i) Nadeem, (ii) Muhammad Haneef, (iii) Miskeen, were found armed with pistols, whereas
(iv) Waseem, was armed with Kalashnikov like weapon, who at once started firing upon Muhammad Yaseen, due to which, he received two bullet injuries on chest, by the hands of Nadeem, accused, and two bullet injuries on left side of his throat and shoulder, by the firing of Muhammad Haneef, accused, whereas two bullets hit on his right thigh by the firing of Miskeen, who receiving serious injuries fell down and accused-persons fled away.
12. The learned Counsel for accused-persons stressed on the point that as per prosecution story, incident took place at about 8:30 p.m., however, prosecution neither disclosed the source of light in FIR nor in statements of P.Ws. recorded under section 161, Cr.P.C. and it is admitted by prosecution witnesses that at the time of occurrence, due to power load shedding, electricity was off; hence, identification of accused-persons was a serious question mark for prosecution; however, later on, when at the stage of bail of Muhammad Waseem, the point of existence of light was raised, on 16.12.2006, then prosecution made a vital improvement in statements that at the time of occurrence a Generator was turned on by Adnan, and the trial Court while discussing upon the same point in its impugned judgment, at page 65, held that at the time of occurrence, due to power load shedding, light was off and prosecution stance, regarding existence of Generator light at the time of occurrence, was declared doubtful and in Court's opinion, identification of all the accused-persons at the time of occurrence, happened to be difficult; therefore, when identification of all the accused-persons was question mark for prosecution, then it was a strong mitigating circumstance for acquittal of Nadeem Iqbal, convict-appellant; hence, he was too entitled to be acquitted of the charges. In reply to the aforesaid argument, the learned Counsel for complainant submitted that accused-persons were not strangers; hence, their identification was not doubtful, especially so when Ramzan P.W., deposed in his supplementary statement recorded under section 161, Cr.P.C, on 13.09.2006, that at the time of occurrence, light was on through Generator power source, and not a single witness was confronted with his previous statement recorded under section 161, Cr.P.C., which was requirement under Article 140 of Qanun-e-Shahadat Order, and if a witness is not confronted with his previous statement and no explanation is sought from the witness, then contradiction cannot be taken into consideration. In order to elucidate the point of existence of electricity at the time of occurrence, we have scrutinized entire record with utmost care. Although complainant did not disclose in FIR as well as in his earlier statement, recorded under section 161, Cr.P.C., about source of light at the time of occurrence; however, later on, in Court statements he, along with other P.Ws, categorically deposed that few minutes prior to occurrence, due to load shedding, the power went off and Adnan turned on generator; hence, they saw occurrence in bulbs light. Moreover, it appears from record that the witnesses were not confronted with their previous statements and no explanation was sought from witnesses; therefore, the aforesaid contradiction cannot be taken into consideration. The view supra is fortified from a case reported as Azhar Aziz v. The State 1996 PCr.LJ 1522 wherein, it was observed as under:- "The contention raised by the learned Counsel for the appellant-convict that in the statement before the Court it was deposed by Muhammad Ayub, first informer, that offence was committed in the corridor of the quarter whereas in the site plan point No,1, the place of occurrence, is shown as the room of the quarter, merits no consideration. Firstly the hiltless has explained in his statement before the ''our that the corridor of the quarter a room has also been built and secondly this contradiction, if at all, appearing in the statement of witness was not put to the witness so that he could have given an explanation of it. It a witness is not confronted with his previous statement and no explanation is sought from the witness that contradiction cannot be taken into consideration."
In this view of the matter, the Court statements of P.Ws., regarding source of light at the time of occurrence, cannot be disbelieved; thus, argument of the learned Counsel for appellant-convict, is turned down.
13. The next argument of the learned Counsel for accused-persons is that motive of murder, as set- up by prosecution, is that Muhammad Haneef's and Miskeen's daughters hurled abuses to Ramzan's wife, remained shrouded in mystery, because according to prosecution story, accused had grudge with Muhammad Haneef, but astonishingly Muhammad Yaseen, was hit, despite the fact that Muhammad Haneef, was present at the spot; however, he was not hit by accused- persons; hence, extreme penalty is not warranted. In reply, the learned Counsel for complainant submitted that accused-persons did not show any motive against eye-witnesses, to implicate them in the case falsely, no such defense was taken during cross-examination, and even otherwise in case of direct evidence it is not essential to prove motive. We are aware that motive plays an important role in the case of circumstantial evidence and in the case of direct evidence it is not essential to prove motive. However, keeping in view the peculiar facts and circumstances of the instant case, the motive as set-up by prosecution ought to be established by prosecution, which is taken into consideration. A perusal of FIR reveals that complainant alleged motive that on 10.08.2006, complainant's wife was sitting in courtyard of her house, when daughters of Muhammad Haneef and Miskeen, accused-persons, standing on the roof top of their house, hurled abuses. It is important to observe here that we have scrutinized record and did not find any clue that what were the reasons behind hurling abuses by Haneef's and Miskeen's daughters to complainant's wife. We are also aware that it was not necessary for prosecution to set-up motive for murder, however, once it is set-up, the prosecution has to prove it and in failure whereof an adverse inference can be drawn against prosecution. Hence, motive alleged by prosecution could not be established, which remained shrouded in mystery, including possibility of some family honour. It is worthwhile to observe here that motive though not a sine-qua-non for bringing the offence of murder at home, however, it has importance regarding the quantum of sentence and where the motive is shrouded in mystery then the extreme penalty of death is not warranted, rather life imprisonment is considered sufficient to meet the ends of justice. The aforesaid view finds support from an illuminating precedent of the Apex Court in case reported as Muhammad Khurshid Khan v. Muhammad Basharat and another PLD 2007 SC (AJ&K) 27, wherein, the following principle was enunciated:-- "It is a well-settled principle of law that where the motive for the offence is shrouded in mystery then the extreme penalty of death is not warranted. The sentence of life imprisonment should be sufficient to meet the ends of justice. This view also finds support from a case reported as Muhammad Ali v. The State [1988 PCr.LJ 3071 It is a celebrated principle of law that where the motive' for the offence is either not proved or not satisfactorily established, it is a circumstance where the extreme penalty of death is usually avoided and lesser penalty of life imprisonment is awarded. This view finds support from the cases reported as The State v. Bahadur and another [1987 PCr.LJ 16891 and Ghulam Hussain v. The State (1987 PCr.LJ 1812)."
14. The contention of the learned Counsel for accused-persons is that report of Forensic Science Laboratory Punjab, Lahore, the letter written by Director FSL Punjab to Superintendent of Police District, Mirpur, the report of Chemical Examiner I Punjab, Lahore, and the report of Serologist, are part of the file, however, the same were not exhibited in evidence; hence, the same could not be read against accused-persons. In reply to above argument, the learned Counsel for complainant submitted that these reports were not exhibited; however, such reports are considered in case of circumstantial evidence, whereas In the instant case direct evidence is available, which will prevail.
We are alive that direct evidence is prevailed over corroboratory evidence. The prosecution case is that Muhammad Yaseen, deceased, received two injuries, each by the hands of three accused- persons, whereas, FSL report indicates that all shots were fired from the pistol recovered from Nadeem Iqbal, convict; therefore, possibility cannot be ruled out that prosecution, in order to shelter eyewitnesses account, did not exhibit aforesaid report in evidence. Thus, the same is not in line with prosecution version, which is a mitigating circumstance.
15. The next argument of the learned Counsel for convict-appellant is that Nadeem Iqbal, convict, was sentenced only on the basis of FSL report that seven recovered crime empties were matched with .30-bore pistol bearing Nos, 59 and 66, recovered from him, whereas 66 number pistol .30- bore was shown to be recovered from Muhammad Haneef, accused, vide recovery memo Exh. PM; hence, on basis of FSL report his client entails acquittal. It is important to observe here that as per recovery memo Exh.PK, a 30-bore pistol bearing No,59, P-19, along with a magazine, P-20, and five live rounds, P-21 to P--25, was recovered on pointation of Nadeem Iqbal, from hayrack of a room containing chaff, on 13.08.2006, in presence of Abdur Rahman and Shahid Iqbal P.Ws., whereas an unnumbered .30-bore pistol, P-28, on hilt of its body 66 was incorporated, along with a magazine, P-29, was recovered on pointation of Muhammad Hanif, from an iron drum lying in a room containing chaff, on 28.08.2006, vide recovery memo Exh. PM. A perusal of letter written by Director Forensic Science Laboratory Punjab, Lahore, dated 20.09.2006, to Superintendent of Police, Mirpur, clarify the situation, wherein it has been mentioned that both the numbers 59 and 66 are physically present at two different places on the pistol of .30-bore allegedly recovered from the accused Nadeem Iqbal. He further confirmed that number 66 is also present on the pistol allegedly recovered from the accused, Muhammad Hanif. Hence, argument of the learned Counsel for convict is misconceived.
16. It is worthwhile to observe here that three eye-witnesses, namely, Muhammad Ramzan, Adnan Ramzan, and Muhammad Asif, were cited as eyewitnesses in calendar of challan and as per argument of the learned Counsel for accused-persons, they are close relatives of deceased and their evidence was not corroborated by independent witnesses; hence, evidence of the aforesaid P.Ws. cannot be relied upon. A minute perusal of record reveals that they are relatives of deceased; however, it is well settled principle of law that evidence of a close relative cannot be brushed aside on the ground of relationship, especially so when he has not been shown inimical to the accused.
The aforesaid view is supported from a case titled Muhammad Khalil v. The State (1992 SCR 249), wherein, it was held as under:-- "We have given due consideration to the arguments raised at the bar. The first question relates to the credibility of the eye-witnesses namely, Gulzar Ahmad. Muhammad Malik, Nazar Muhammad and Abdul Hamid. These witnesses have been relied upon not only by the members of the District Criminal Court but also by the Shariat Court. As has already been pointed out, the difference of opinion between the members of the Shariat Court was with regard to the nature and quantum of punishment to be awarded to the accused persons, namely Muhammad Khalil and Muhammad Tariq and not about their guilt. The mere fact that some of these witnesses are related to the deceased are not sufficient to discard their testimony, especially so when they have not been shown inimical to the accused-appellant."
The same view was reiterated by the Apex Court in cases titled Muhammad Tahir Aziz v. The State and another (2009 SCR 71) and Karamat Hussain v. The State and another (2015 SCR 1007).
17.The next contention of the learned Counsel for accused-persons is that as per statement of investigating officer, recovery witnesses were already present at the place of recoveries of pistols, which means they were planted witnesses. In this regard, statements of recovery witnesses reveal that they visited police station, where SHO told them that accused-persons were ready to give recovery of the weapons of offence and thereafter they came at the place of recovery along with police and accused-persons, therefore, statement of investigating officer that witnesses were already present at the place of occurrence might be a favouring effort on his part. Therefore, we do not find any force in the aforesaid argument.
18. The contention of the learned Counsel for convict is that during postmortem three pieces of bullet were recovered and sent to serologist, but report was not brought on record, from which it could not be determined whether the same were related to 30-bore pistols or something else; hence, the aforesaid evidence was withheld by prosecution. A study of the statement of Dr. Aatif Anwar, CMO, DHQ Hospital, Mirpur, dated 25.07.2007, reveals that during postmortem three pieces of bullets were recovered from dead body of deceased and by preparing a parcel, the same was handed over to police. However, report of FSL, regarding the aforesaid pieces of bullet, was neither obtained nor appended with the file; hence, this argument finds force.
19. Now, we advert to the point that whether trial Court committed illegality while relying upon statements of eye-witnesses to the extent of Nadeem Iqbal, convict, and discarding the same to the extent of acquitted-respondents. It would be worthwhile to observe here that it is not necessary that if a piece of evidence is disbelieved to the extent of one accused, the same cannot be believed to the extent of other accused against whom cogent, convincing and confidence inspiring evidence is available on record, because it is well settled principle of administration of criminal justice that the Courts have to sift grains from chaff. The aforesaid view is supported from a case reported as Muhammad Bashir and another v. Sain Khan and 2 others (2014 SCR 821), wherein, it was held as under:-- "Same like, the argument of he learned Counsel for the convict-appellant that the material on the basis of which the conviction order against Sain Khan, convict-appellant has been passed, is not believable because on the basis of same evidence, the other accused-persons have been acquitted. As far the appeal filed by the convict-appellant for his acquittal is concerned, has no substance in the light of the peculiar facts of the case. According to the century's old settled principles of administration of criminal justice, the Courts have to sift the grains from the chaff. It is not necessary that if a piece of evidence is disbelieved to the extent of one according to his assigned conduct in the prosecution story, the same cannot be believed to the extent of other accused against whom cogent, confidence inspiring evidence is available on record. In this case, the convict-appellant has been assigned a specific role which has been successfully proved by the prosecution. Whereas the role of other accused-persons is quite different, therefore, the version of defence counsel being incorrect is not acceptable."
20. In the instant case, the role attributed to accused-persons is that Muhammad Yaseen, deceased, received two bullets injuries of .30-bore pistol on his chest by the hands of Nadeem Iqbal, accused, bullets injuries of .30-bore pistol on left side of his throat and shoulder by the firing of Muhammad Haneef, accused, and two bullets injuries of .30-bore pistol on his right thigh by the firing of Miskeen, whereas Muhammad Waseem, accused, was ascribed to be armed with Kalashnikov like weapon. Although accused-persons were specifically attributed to play their roles in occurrence, however, it is pertinent to observe here that as per statements of eye-witnesses they were following deceased at the distance of 10/12 feet, whereas according to postmortem, the distance of fires is 1-4 feet; hence, looking of exact seats of fire injuries, by eye-witnesses is not possible, especially in night hours. It is very important to take note of the fact that as per FSL report, crime empties Cl to C7, were fired from the pistol recovered from Nadeem Igbal. convict; therefore, the trial Court did not rely upon the evidence of eye-witnesses to the extent of accused- respondents and the same was relied upon to the extent of Nadeem Iqbal. convict; therefore, this possibility cannot be ruled out that deceased was done to death by Nadeem Iqbal, convict, and other accused-respondents were implicated falsely by prosecution, which is a common trend in our society that along with real culprits, innocents of their families are dragged in litigation.
Therefore, trial Court correctly acquitted accused-respondents and awarded sentence to Nadeem Iqbal, however, the trial Court while awarding extreme penalty of death to Nadeem Iqbal, failed to consider some important points, like (i) recovery of .30-bore pistol No,59 along with a magazine containing five live rounds from Nadeem lqbal, convict-appellant, while as per FSL report all fires were found to be fired from pistol recovered from him, (ii) non-exhibition of FSL report, (iii) non- mentioning of reasons by complainant behind hurling abuses to his wife by daughters of Muhammad Haneef and Muhammad Miskeen and (iv) non-presence of report of three pieces of bullet recovered from dead body of deceased, which are mitigating circumstances, and it is well settled principle of law that benefit of mitigation must be extended to accused. The aforesaid view is supported from a case reported as Karamat Hussain v. The State and another [2015 SCR 1007], wherein, it was observed as under:-- "The mitigation is a fact which goes in favour of the convict-appellant and it is recognized phenomena of law that every benefit which arises in favour of the accused must be extended to him."
In light of what has we are convinced to Nadeem lqbal, imprisonment.
22. The authorities cited by the learned Advocates for parties are distinguishable from the facts and circumstances of the instant case; therefore, need not to be discussed in detail.
23. The crux of above discussion is that by partly accepting Appeal No,40/2010, filed by Nadeem Iqbal, convict-appellant, the death sentence awarded to him by District Court of Criminal Jurisdiction, Mirpur, vide the impugned judgment dated 16.08.2010, is altered into life imprisonment.
The benefit of section 382-B, Cr.P.C, shall remain available to convict-appellant. However, Is the impugned judgment to the extent of acquittal of accused-respondents is maintained. The Appeal No,41/2010, filed by complainant, stands dismissed. The Reference made by District Court of Criminal Jurisdiction, Mirpur, for confirmation of death sentence, is answered in negative. The Appeals and Reference are decided in the terms indicated hereinabove. The copy of the instant judgment shall be annexed with other relevant files.