Syed Shahbaz Ali Rizvi, J.--This judgment shall dispose of Criminal Appeal No, 732-J of 2012 filed by Muhammad Saleem alias Sheema, appellant against his conviction and sentence and Murder Reference No, 126 of 2011 sent by the learned trial Court for confirmation or otherwise of sentence of death awarded to the appellant under Section 374 of the Code of Criminal Procedure, 1898, being originated from the same judgment dated 11.05.201 1 passed by the learned Addl. Sessions Judge, Kabirwala in case FIR No, 318 dated 28.11.2006, offence under Sections 302, 341, 109 and 34, PPC registered at Police Station City Kabirwala District Khanewal whereby the appellant was convicted under Section 302(b), PPC for committing the murder of Kashif alias Pomi (deceased) and sentenced to death with the direction to pay Rs, 2,00,000/- as compensation to the legal heirs of the deceased as envisaged under Section 544-A of Code of Criminal Procedure, 1898 and in default thereof to undergo simple imprisonment for six months. The learned trial Court, however , through the same judgment, acquitted Abdul Khaliq, Allah Rakha and Akmal, co-accused of the appellant.
2. Per prosecution case, the facts, as disclosed by Muhammad Ashiq, complainant (PW-9) in his statement (Exh- PD) on the basis of which formal crime report (Exh-PD/1) was registered, are that on 28.11.2006 at 02.30 p.m., Muhammad Saleem alias Sheema (appellant) armed with rifle along with his co-accused Allah Rakha and Akmal (since acquitted) stopped his van being driven by Kashif alias Pomi, deceased at gun point. Allah Rakha caught hold of Kashif, deceased from his collar and removed him from the van whereas, Muhammad Akmal accused raised lalkara to Muhammad Saleem alias Sheema to finish him by making fire at him upon which, Muhammad Saleem, appellant made a straight fire with his rifle at Kashif which landed on front side of his chest who after sustaining injury fell down on the ground and succumbed to the injury at the spot.
The motive behind the occurrence, as disclosed by the complainant, was previous litigation and an altercation that took place between Muhammad Saleem (appellant), Kashif (deceased) and Asif (given up PW) due to which, the accused persons had committed the occurrence.
3. Muhammad Saleem alias Sheema (appellant) was arrested in this case' on 08.122006 by Khizer Hayat, SI (P/-14) who, on 19.12.2006, after making disclosure, got recovered rifle (P-5) along with five live bullets (P-6/1-5) which was taken into possession vide recovery memo. Exh-PH. After completion of investigation, report under Section 173 of the Code of Criminal Procedure, 1898 was submitted. The learned trial Court after observing all the pre-trial codal formalities framed charge against the appellant and his co-accused (since acquitted) to which they pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, produced as many as fourteen witnes ses during the trial. Muhammad Ashiq, complainant (PW-9) and Mansoor Ahmad (PW-10) furnished the ocular account of the incident. Musarrat Iqbal (PW -8) is the witness of recovery of crime weapon at the instance of the appellant.
The medical evidence was furnished by Dr. Muhammad Akhtar (PW-1) who, on 28.11.2006 at 06.30 p.m, conducted post-mortem examination on the dead body of Kashif (deceased) and noted one fire-arm injury on his body . In his opinion, the injury was ante-mortem, caused by fire-arm and was sufficient in ordinary course of nature to cause death due to haemorrhage, shock and damage to liver along with major blood vessels. The probable duration between injury and death, as observed by him, was immediate whereas, between death and post-mortem examination 3 to 6 hours.
Khizer Hayat, SI (PW-14) is the Investigation Officer of this case. Raja Ghulam Farid, Draftsman (PW-6) prepared scaled site-plan (Exh-PE) of the place of occurrence whereas, rest of the witnesses are formal in nature.
5. The statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898, was recorded wherein, he refuted the allegation levelled against him, professed his innocence and deposed that he had falsely been implicated in this case and that in fact, the complainant party stopped them, gave him beating and Asif made a fire shot at him which hit the deceased. He further deposed that they also snatched his licensed rifle which the investigation officer planted at him. He neither opted to appear as his own witness on oath as provided under Section 340(2) of the Code of Criminal Procedure, 1898 in disproof of the allegations levelled against him nor did he produce evidence in his defence.
6. The learned trial Court vide its judgment dated 11.05.201 1 found the appellant guilty , convicted and sentenced him as mentioned above.
7. Learned counsel for the appellant contends that the appellant has falsely been implicated in this case; that in fact the complainant party was the aggressor one; that both the eye-witnesses are chance witnesses as they are not the residents of the place where this occurrence took place; that there are discrepancies in the statements of the prosecution witnesses; that the medical evidence is in conflict with the ocular account; that the alleged recovery of crime weapon at the instance of the appellant and positive report of the Forensic Science Laboratory (Exh-PU) is inconsequential; that the prosecution remained fail to prove motive part of the incident; that three co-accused of the appellant have already been acquitted by the learned trial Court and no appeal against their acquittal has been filed either by the State or the complainant; that the prosecution remained fail to prove its case against the appellant beyond the shadow of a reasonable doubt; that this appeal may be allowed, the conviction and sentence of the appellant be set aside, he be acquitted of the charge levelled against him and the Murder Reference be answered in the negative.
8. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes the contentions made by learned counsel for the appellant on the grounds that complainant has no reason to falsely implicate the appellant in this case; that the appellant is nominated in the promptly lodged crime report with specific role of causing only fatal injury on the person of deceased; that the ocular account fully supported by the medical evidence is also corroborated by the recovery of crime weapon at the instance of the appellant and positive report of the Forensic Science Laboratory; that the prosecu tion has successfully proved the motive part of the incident; that this appea l may kindly be dismissed and murder reference may very graciously be answered in af firmative.
9. We have heard the learned counsel for the appellant, learned Deputy Prosecutor General assisted by learned counsel for the complainant and perused the record with their able assistance.
10. Muhammad Ashiq, complainant (PW-9) and Mansoor Ahmad (PW-10), furnished the ocular account of the fateful occurrence. They consistently deposed against the appellant without any noticeable deviation from their earlier statements got recorded by them on the day of occurrence under Sections 154 and 161 of the Code of Criminal Procedure, 1898 respectively , within about an hour of the incident as the occurrence that took place at 02.30 p.m. on 28.11.2006 was reported to the police at 03.00 p.m. through the statement (Exh-PD) while the crime report was registered at 03.20 p.m. Despite cross-examination by the learned defence counsel at a considerable length, no material discrepancy sufficient to dent the veracity of the testimony of the eye-witnesses could be obtained. Both the eye-witnesses remained stuck to their stance firmly . The witnesses have convincingly explained the reason for their presence at the place of occurrence when the incident took place. Both the parties are previously known to each other , therefore, no question arises qua mis-identification of the appellant. The appellant has been specifically nominated in this case of broad daylight occurrence as a culprit with the role of causing only fire-arm injury available on the person of deceased that resulted into his unnatural death. In this view of the matter , it cannot be expected from a real father PW-9 Muhammad Ashiq, complainant that he would implicate an innocent person as a principal accused because the same amounts to nothing but to let the actual culprit go unpunished.
Even otherwise, in such like cases, substitution is a rare phenomenon. The above-mentioned circumstances persuade us to hold that the prosecution remained successful in discharging its responsibility of proving its case against the appellant beyond the shadow of a reasonable doubt, through the confidence inspiring and credible ocular account furnished by the eye-witnesses (PW -9 & PW -10).
11. The prosecution case against the appellant also finds support from the medical evidence as ante-mortem fire- arm injury , on the person of deceased Kashif alias Pomi attributed to Muhammad Saleem alias Sheema, appellant is reflected in the post-mortem examination report (Exh-P A) which became the cause of his unnatural death as opined by the Medical Of ficer Dr . Muhammad Akhtar (PW -1).
As far as the contention raised by learned counsel for the appellant regarding acquittal of Abdul Khaliq, Allah Rakha and Akmal, co-accused is concerned, this Court is of the view that the rule of falsus in uno falsus in omni bus is not recognized in our judicial system and Courts here in Pakistan are burdened with the responsibility to sift the grain from chaff and that has rightly been done by the learned trial Court in this case. Even otherwise, the case of acquitted co-accused is distinguishable from that of the appellant. Muhammad Saleem alias Sheema as the appellant is the person who has been assigned the role of causing fire-arm injury to the deceased that also finds support from the medical evidence availab le on record. Hence, the acquittal of co-accused is not a fact sufficient to warrant acquittal of Muhammad Saleem alias Sheema, appellant.
12. As regards recovery of crime weapon rifle (P-5) along with five live bullets (P-61 1-5) and positive report of the Forensic Science Laboratory (Exh-PU), we have noticed that the crime; empty was secured from the place of occurrence on 28.11.2006, the appellant was arrested in this case on 08.12.2006 and the crime weapon rifle was allegedly got recovered by him on 19.12.2006 i.e: after about twenty-one days of the occurrence but the said crime empties were received in the said Laboratory on 12.12.2006 i,e, four days after the arrest of the appellant, which renders the veracity of positive report of the Forensic Science Laboratory (Exh-PU) doubtful and consequently , makes the evidence of recovery inconse quential. Reliance in this respect is placed on the case of Jehangir v.
Nazar Farid and another (2002 SCMR 1986 ). Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of lsrar Ali v. The State (2007 SCMR 525) and Ali Sher and others v. The State (2008 SCMR 707). In Israr Ali's case, the Hon'ble Supreme Court has observed that when the crime empties are sent to Forensic Science Laboratory with delay , the recovery of the same does not provide strong corroboration qua the prosecution version.
13. So far as the motive part of the incident is concerned, the motive as explained by complainant Muhammad Ashiq (PW-9), during his cross-examination is the litigation pending between both the parties, i,e, complainant party and Muhammad Saleem, appellant as earlier a criminal case was registered against Muhammad Saleem, appellant and his brothers for causing injuries to Qaisar Abbas son of the complainant and he (complainant) admits that the matter was compromised and the accused were acquitted. He further admits that no other litigation was pending between both the parties prior to this occurrence which makes it evident that due to supra mentioned compromise there remained no motive for the appellant to commit the murder of Kashif alias Pomi, deceased. As regards the altercation that took place between the appellant and deceased along with Asif PW (since given up) on 26.11.2006, no cogent evidence, in our view could be produced by the prosecution to prove the same and Muhammad Asif PW despite being witness of alleged motive occurrence has not been produced by the prosecution. From mentioned above, we find ourselves persuaded to hold that the real facts and circumstances leading to the fateful occurrence could not be unveiled during the trial.
14. As far as the defence furnished by the appellant to the effect that actually he was aggressed upon and he sustained injuries during the occurrence and that the deceased sustained fire-arm injury at the hand of Asif PW (since given up) is concerned, we have noticed that in this regard, Dr. Ahmed Faheem Rabani, Medical Officer, District Jail, Multan was examined as CW-1 by the learned trial Court who states that on 21.04.2007, as per direction of the Court, he medico legally examined the appellant and found marks of injuries on different parts of his body but during his cross-examination, he admits as under: "... According to normal routine whenev er any under trial prison is brought to the jail in injured condition, Jail authority do not permit him in entry in jail. Previous to this medico legal examina tion, under the Court order , the accused was never medically examined by me. According to the routine of the jail every under trial prisoner at his first entry in jail is produced before the medical officer of the jail, for detection of any disease, injury , problem.
According to the record of the jail, when accused Muhammad Saleem first day was medically examined there was no injury , disease, problem pertain to his person. In Ex.CW -1, I had not mentioned probable duration of injuries...
Saleem accused present before the Court was lodged in District Jail Multan on 20.12.2006 and was produced before me for medical examination on 21.12.2006. (I have brought the admission register , register seen and returned). During inspection of the body of accused on 21.12.2006, as no fresh injury was found so I did not enter the same in the relevant column of the injuries i,e, Column No, 14 of the register . However , there were 9 injury marks were found on the body of the accused but did not mention the same in my register as that was not required...It is correct that regarding all the nine injuries/injury marks I have not given the duration of inflection of the injuries or injury marks..."
The occurrence of this case took place on 28.11.2006 while the appellant was admitted to District Jail, Multan on 20.12.2006 i,e, within a period of less than one month of the occurrence and on 21.12.2006, when he was examined by the Medical Officer (CW-1), he mentioned nothing in the relevant register regarding the availability of injuries on his person which transpires that he was not having any fresh wound. Even otherwise, admittedly , the Medical Officer (CW-1), has not given the duration of scars of wounds available on the person of the appellant when he was examined on 21.04.2007 i,e, after his four months stay in jail and about five months of the occurrence. Moreover , it is not believable that had the injuries been sustained by the appellant on 28.11.2006 at the time of occurrence at the hands of prosecution witnesses, it cannot be expected that after the occurrence and murder of Kashif, they would have let him leave the place of occurrence in an injure d condition especially when Asif PW (since given up), as per defence version, was having rifle in his hand. In this view of the matter , we are of the opinion that the appellant remained fail to plausibly substantiate the defence taken by him hence, the same is brushed aside.
15. From the detailed reappraisal of evidence available on record, we have come to an irresistible conclusion that the prosecution has proved its case against the appellant beyond the shadow of a reasonable doubt through the trustworthy ocular account furnished by Muhammad Ashiq, complainant (PW-9) and Mansoor Ahmad (PW-10) supported by medical evidence and the result of investigation. Hence, the learned trial Court has rightly convicted the appellant but to the extent of quantum of sentence awarded to him, we are of the view that our above observation regarding the evidence of recovery of crime weapon and the evidence of motive coupled with the facts that the appellant caused only a single fire shot and that all co-accused have been acquitted by the learned trial Court while no appeal against their acquittal has been filed either by the State or the complainant, are mitigating circumstances persuading us to award alternate legal sentence of imprisonment for life provided under Section 302(b), PPC; to Muhammad Saleem alias Sheema (appellant) that in our view shall meet the ends of justice. In this regard, guidance is respectfully sought from the case of Ghulam Mohy-ud-Din alias Haji Babu and others v. The State (2014 SCMR 1034 ).
16. For what has been discussed above the conviction of Muhammad Saleem alias Sheema, appellant under Section 302(b), PPC is maintained but his sentence is altered from death to imprisonment for life. The amount of compensation imposed upon him and sentence in default thereof is maintained. He is also awarded the benefit of Section 382-B of the Code of Criminal Procedure, 1898.
17. Consequently , with above modification in quantum of sentence of Muhammad Saleem alias Sheema (appellant), Criminal Appeal No, 732-J of 2012 is hereby dismissed.
18. Murder Reference No, 126 of 2011 is answered in the NEGA TIVE and sentence of death awarded to Muhammad Saleem alias Sheema (convict) is NOT CONFIRMED.