MUHAMMAD WAHEED KHAN, J.---This judgment shall dispose of Criminal Appeal No.1657 of 2015 filed by appellant (against his conviction and sentence ) and C.S.R. No.50-T of 2015 forwarded by the learned trial Court for confirmation of death sentence awarded to appellant or otherwise. As both the matters have been arisen out of the same judgment dated 07.09.2015 passed by the learned Judge ATC-I, Lahore Camp at Central Jail, Lahore in case FIR No.182/1994 dated 08.11.1994 registered under sections 302/324/109/34, P.P.C. at Police Station Macleod Gung, Bhawalnagar , according to which appellant was convicted and sentenced as under;- Under section 302(b), P.P.C. awarded death sentence on five counts for the commission of murders of five persons, namely , Lal Khan, Bin Yamin, Muhammad Mansha, Muhammad Yar and Muhammad Hanif. He was also directed to pay compensation of Rs.10,00,000/- to the legal heirs of each deceased under section 544-A, Cr.P.C. which shall be recovered as arrears of land revenue and in default thereof, he was ordered to further undergo simple imprisonment for six months.
Whereas co-accused of the appellant, namely, Nasar Ullah, Muhammad Akhtar and Ijaz Haider were acquitted of the charge vide same judgment by the learned trial Court. Some of the co-accused, namely , Dawood Ahmad, Gohar Iqbal, Muhammad Aslam, Abdul Rasheed, Molvi Muhammad Shafi and Abu Bakar were acquitted by the learned trial Court by accepting their application under section 265-K, Cr .P.C. vide order dated 08.06.2015.
2. Brief facts of the case as narrated by the complainant Ghulam Abbas in FIR are as under;- "That he is resident of Ward No.4, Mecle od Gunj and runs a cloth shop in the Bazar . Today , at about 12.15 Noon, he and his brother along with Israr Hussain, Muhammad Yar President Tehreek-e-Jaferia and Muhammad Bilal son of Muhammad Tufail, Muhammad Anees son of Muhammad Yar, Muhammad Mansha son of Atta Muhammad, Bin Yamin son of Abdul Aziz, Bashir Ahmad son of Noor Muhammad who came for purchasing the cloth were present.
Bashir Ahmad alias Tedi son of Noor Muhammad, an employee, was also present. He sent his brother Israr Hussain to take the tea for customers. At that time, two persons Dilawar Ali alias Usman son of Muhammad Saddique, caste Rajpoot, resident of Dhobi Ghat Haroonabad, armed with Kalashnikov and Ghulam Hussain alias Rafaqat son of Ahmad Din resident of Chak No.221/9R Fort Abbas, also having Kalashnikov , he already know them, came at the shop. Ghulam Hussain made a lalkara, be ready to die Shia Kafar and then both started firing. In result of firing, Muhammad Hanif, Bin Yamin, Lal Khan, Muhammad Mansha and complainant's brother Muhammad Yar died at the spot. Bashir Ahmad alias Tedi became injured. At that time, he was putting off the Thaan/Roll of cloth, he hide himself in the corner of shop underneath the stairs, so on this accoun t, accused could not see him. At that time, his brother Israr Hussain, Muhammad Munir son of Muhammad Ali, Ahmad Yar son of Ghulam, Qutab Din son of Manzoor and Ghulam Hussain son of Raheem Bakhsh also came and witnessed the occurrence. Both the accused after committing murder ran away towards western side. Complainant along with Munir Ahmad, Ahmad Yar, Qutab Din and Ghulam Hussain followed the accused. At a little distance, a motorcycle Yamaha Red colour FDO-3294 was standing in start position on which Nasar Ullah alias Fazal-ur -Rehman son of Gull Rauf Khan, Caste Pathan, resident of Chak No.206/HB Fort Abbas, subsequently came to know about his name, sat and ran away . Many people gathered at the spot. They are Shia by caste, his brother was President of Tehreek-e- Jaferia. Due to this reason, accused Dilawar Ali, Ghulam Hussain and Nasar Ullah of Sipah Sahaba while making indiscriminate firing, committed the murders of his brother Muhammad Yar along with Lal Khan, Bin Yamin, Muhammad Mansha and Muhammad Hanif and got injured Bashir Ahmad alias Tedi. This occurrence is committed at the instigation of Zia-ur -Rehman Farooqi Chief Pattern of Anjuman-e-Sipah Sahaba, Shabbir Ahmad Usman, Muhammad Naeem son of Israil, Abu Bakar alias Khair Muhammad, Qari Ghulam Sarwar , District President Sipah- e-Sahaba, Hafiz Dawood resident of Fort Abbas, Molvi Muhammad Shaft son of Khair Muhammad, Muhammad Aslam Afridi and Gohar Iqbal son of Jamal Shah resident of Mecleod Ganj. The occurrence is a brutal one, be proceeded against the accused."
3. It is pertinent to mention here that this case related to year 1994 and it remained pending at various Courts and finally by the order of the learned Admin istrative Judge of this Court, entrusted the same to Anti-T errorism Court No.1, Lahore, who received it on 02.04.2014. After assurance of presence of appellant along with his co-accused, framed charge against them, which was denied by them and trial commenced.
4. Prosecution produced as many as sixteen witnesses as PWs whereas one witness was summoned by Court.
Ocular account was furnished by Ghula m Hussain and complainant Ghulam Abbas, who appeared before the learned trial Court as PW-7 and PW-8. Investigating Officers of the case Muhammad Mansha SI and Abdul Jabbar ASI appeared as PW-11 and PW12. Whereas, remaining witnesses were of formal in nature. Thereafter , prosecution closed its evidence by producing certain documentary evidence.
5. Appellant was examined under section 342, Cr.P.C., wherein he denied all the allegations leveled against him.
He neither opted to record his statements under section 340(2), Cr .P.C. nor produced any evidence in his defence.
6. Learned trial Court after appraisal of prosecution evidence convicted and sentenced appellant in the above mentioned terms, hence, this appeal and Capital Sentence Reference.
7. Learned counsel for the appellant in support of instant appeal argued that the prosecution has failed to prove its case against the appellant and in fact the alleged occurrence was unwitnes9ed and all the persons who were available at the crime scene were done to death by unknown assailants; that both persons who claimed to be eye witnesses of the crime scene are interested witnesses because one of the deceased Muhammad Yar was the real brother of complainant Ghulam Abbas (PW-8) and the other witness, namely , Ghulam Hussain is not only, related to the complainant but also hails from Shia sect, so, their evidence is not acceptable being highly interested witnesses; that the story narrated by the complainant while lodging FIR is improbable and cannot be comprehended at any stretch of imagination; that the crime scene being situated in a bazar , two persons came there, showered the bullets upon the deceased and managed to flee away and the learned trial Court convicted and sentenced the appellant on the basis of conjectures and surmises; that there is no independent corroboration available qua the truthfulness of the ocular account advanced by both the alleged eye witnesses and lastly prays that appellant may be acquitted of the charge by accepting this appeal and in alternate learned counsel submits that the sentence awarded to the appellant be converted into life imprisonment.
8. Conversely , learned Additional Prosecutor General vigorously controverted the arguments advanced by the learned counsel for the appellant and contends that this was a barbaric act in which five persons have been brutally done to death and inflicted injuries to one Bashir Ahmad alias Tedi; that the prosecution has proved its case against the present appellant beyond shadow of doubt by producing cogent, trustworthy and coherent evidence; that both the eye-witnesses are the natural witness es of the alleged crime and their availability at the crime scene cannot be doubted on any stretch of imagination and lastly prays that since the prosecution has proved its case up to the hilt against the appellant, hence, instant appeal may be dismissed in toto.
9. We have heard the arguments of learned counsel for the parties and have perused the record with their assistance.
10. We have straightway observed that the alleged occurrence as stated in FIR took place at 12.15 (noon) on 08.11.1994 and statedly the matter was reported to police at 1.00 p.m. just within 45 minutes and in the FIR the complainant has not only mentioned the witnesses before whom the alleged occurrence took place but has also given the details of accused persons along with roles, they played, as accused persons were previously known to him. So, this spontaneity in lodging of FIR squarely rules out the consultation and due deliberation on part of the prosecution witnesses and it is almost settled by now that such promptness in lodging of FIR is generally a guarantee of truth in most of the criminal cases.
11. In order to prove the ocular account, Ghulam Abbas complainant of the FIR (PW-8) while deposing before the learned trial Court stated that on the fateful day at 12.15 (noon) he was present in his shop situated at main bazar Mecleod Ganj. His brother Israr Hussain, Muhammad Yar President Tehreek- e-Jaferia, Muhammad Mansha, Muhammad Bin Yamin, Muhammad Lal, Muhammad Hanif and his servant Bashir Ahmad alias Tedi were also present there in the shop. Meanwhile, Dilawar Ali alias Usman and Ghulam Hussain alias Rafaqat (since dead) both armed with Kalashnikovs made indiscriminate firing, resultantly , his brothe r Muhammad Yar, Bin Yamin, Muhammad Lal, Muhammad Hanif and Muhammad Mansha succumbed to the injuries at the spot and Bashir alias Tedi became injured. Further claimed, at that time, he was taking roll of cloth from the racks, so, he hid himself under the stairs situated at the back side of the shop due to which he was survived. The occurrence was also witnessed by his brother Israr Hussain, Ghulam Hussain (PW-7), Ahmad Yar, Muhammad Munir and Qutab Din.
After the occurrence, accused managed to run away from the spot. The other eye-witness Ghulam Abbas (PW-7) also narrated the occurrence almost in a similar manner . Both the eye-witnesses stood firm during the test of cross- examination and the intrinsic value of their evidence qua the time, place, mode and manner of occurrence could not be uprooted by the defence. Their evidence not only remained consistent and confidence inspiring but the same also fits in within the probability and other circumstances of the case. Ghulam Abbas complainant (PW-8) is the real brother of one of the deceased, namely , Muhammad Yar who was allegedly President of Tehreek-e-Jaferia of that area and during the course of cross-examination, he explained that the alleged place of occurrence is a shop which was owned by his brother Muhammad Yar (deceased) and it was the complainant who used to do the business there. So, it is obvious that the complainant was available at his business place at the time of alleged incident and his presence at the relevant time cannot be doubted, hence, being the owner of the shop he was a natural eye-witness of the occurrence.
12. As far as the contention of learned counsel for the appellant that the eye-witne sses are interested witnesses is concerned, it has also been clarified during the test of cross-examination by the complainant who deposed that the present appellant Dilawar Ali alias Usman and Ghulam Hussain alias Rafaqat (since dead) have neither any relationship with him nor he was having any animosity . It has been consistent view of the Superior Courts of the country that mere close relationship of witness with deceased would not discard his testimony , if otherwise the same is trustworthy , confidence inspiring and appealing to reasons. Reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of ljaz Ahmad v. The State (2009 SCMR 99) and Talib Hussain and others v. The State and others (2009 SCMR 825). So, the argument of learned counsel for the appellant in this respect is without having any force and we, therefore, repelled it accordingly .
13. As far as the other eye-witness, name ly, Ghulam Hussain (PW-7) is concerned, he is an independent witness, as he has not related to the complainan t. During course of cross-examination, he not only strongly rebutted the relationship with the complainant or eithe r of the deceased but also explained that on the day of occurrence, he was employed at the shop of his father in law, which was situated almost in front of shop of the complainant, which means that this witness is also natural witness of the occurrence and his presence at the place of occurrence also cannot be doubted. As far as other four deceased are concerned, they were not related to either of the witnesses and they were just the customers and were busy in the shop of the complainant. So, on perusing the testimony of both the eye-witnesses we find no contradictory aspect at all in their depositions. Even after lapse of 21 years, they remained consistent with each other and they have successfully established their presence at the place of occurrence. So, we hold that there is no ground available in the whole record on the basis of which deposition of both the eye-witnesses can be termed as not reliable and is not worthy of credit. Under these circumstances, we not only fully believed the testimony of both the eye-witnesses but also observed that they are the natural witnesses of the incident, as there are sufficient reasons to believe that they were present at the place of occurrence. At the same time we also believe that since both of them having no previous grudge or animosity against the appellant, they have spoken the whole truth in their deposition.
14. As far as objection raised by the learned counsel for the appellant that Bashi r Ahmad alias Tedi (injured eye- witness) has not been produced by the prosecution is concerned, it is sufficient to observe in this regard that he was not given up by the learned Deputy District Public Prosecutor being unnecessary or being won over rather since the evidence had been recorded after a lapse of 21 years of the occurrence, so, according to the statement of learned Deputy District Public Prosecutor besides Bashir Ahmad alias Tedi, number of other witnesses were also not available despite repeated attempts, dither they had been expired or un-tracea ble. So, in this regard,' we hold that non-production of injured eye-witness does not harm the case of prosecution in any manner .
15. As far as recovery of weapon of offence allegedly effected from the possession of the appellant is concerned, in this regard it is suffice to observe since no recovery memo is available on record and the crime empties allegedly secured from the place of occurrence by the Investigating Officer had been sent to the office of Punjab Forensic Science Agency after the arrest of the appellant, so, in all eventualities, recovery remained inconsequential.
16. So, we hold that prosecution has successfully proved its case against the appellant and found that the learned trial Court had rightly convicted the appellant under section 302(b), P.P.C. But at the same time, learned counsel for the appellant has also opted not to press the conviction of the appellant, provided that mitigating circumstances be considered in favour of the appellant. In the light of which, we have perused the entire record and noted certain extenuating circumstances in favour of the appellant, which are as under;- Firstly , the appellant is behind the bars since 08.11.1994 and he has not been sentenced under the Anti-T errorism Act, 1997 as the matter pertains to the year before the Act ibid was promulgated and enforced. He has already spent 25 years substantive sentence.
Secondly , as discussed above that the recovery allegedly effected from the appellant remained inconsequential and; Thirdly , despite the fact that the complainant had claimed while lodging FIR that it was a sectarian killing but at the same time, we also observe that Ghulam Hussain (PW-7) eye-witness deposed during cross-examination as under;- "On the day of occurrence, I was known to the people of city. It is correct that it was not a matter of Shia Sunni conflict. However it was a brutal act."
Hence, we find that there is no other motive ever introduced by the prosecution in this case and proving the motive is a basic element in a criminal case and the law is settled by now that if the motive is missing in any criminal case, the same may reacts against the imposition of maximum penalty of death. In this regard reliance is placed on the judgment passed by the august Supreme Court of Pakistan in case reported as "Haq Nawaz v. The State" (2018 SCMR 21 ), in which it has been observed as under ,- "After hearing the learned counsel for the parties and going through the record we have observed that the High Court had categorically concluded that the motive set up by the prosecution had not been proved by it. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder and a reference in this respect may be made to the cases of Ahmad Nawaz v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165), Muhammad Mumtaz v. The State and another (2012 SCMR 267), Muhammad Imran alias Asif v. the State (2013 SCMR 782), Sabir Hussain alias Sabri v.
The State (2013 SCMR 1554 ), Zeeshan Afzal alias Shani and another v. The State and another (2013 SCMR 1602 ), Naveed alias Needu and others v. The State and others (2014 SCMR 1464 ), Muhammad Nadeem Waqas and another v. The State (2014 SCMR 1658 ), Muhammad Asti v. Muhammad Akhtar and others (2016 SCMR 2035 ) and Qaddan and others v . The State ( 2017 SCMR 148 )."
17. Therefore, by treating these three factors as mitigating circumstances in favour of appellant Dilawar alias Usman, Criminal Appeal No.1657 of 2015 filed by him is partly allowed and his conviction under section 302(b), P.P.C. is maintained but his sentence of death is converted into life imprisonment on five counts.
The amount of compensation and senten ce in its default are maintained . All sentences were ordered to be run concurrently and benefit of section 382-B, Cr.P.C. is also extended to the convict. Capital Sentence Reference No.50-T of 2015 is answered in NEGA TIVE and his death sentence is NOT CONFIRMED .