Malik Shahzad Ahmad Khan, J:--This judgment shall dispose of Criminal Appeal No. 280 of 2014 filed by Qurban Hussain (appellant) against his conviction and sentence, Criminal Appeal No. 458 of 2014, filed by .Mst.
Ghulam Ruqqia complainant against the acquittal of Liaquat Ali co-accused and Murder Reference No. 34 of 2014 sent by the learned trial Court for confirmation or otherwise of the Death sentence of Qurban Hussain (appellant).
We propose to disposes of all these matters by this single judgment as these have arisen out of the same judgment dated 02.06.2014, passed by the learned Sessions Judge, Chakwal.
2. Qurban Husain (appellant) and Liaquat Ali (co-accused since acquitted) were tried in case FIR 325 dated 02.08.2011, registered at Police Station Sardar, District Chakwal in respect of the offences under Section 302/34 PPC. After conclusion of the trial, the learned trial Court Vide its judgment dated 02.06.2014 has convicted and sentenced Qurban Hussain appellant as under:-- Under Section 302(b) PPC to 'Death' for committing Qatl-i-Amd of Muhammad Zameer (deceased). He was also ordered to pay Rs.1,00,000/- (rupees one hundred thousand only) to the legal heirs of the deceased as compensation under Section 544-A of Cr .P.0 and in default thereof to suffer simple imprisonment for six months.
The learned trial Court however , vide the same judgment acquitted Liaquat Ali co-accused while extending him the benefit of doubt.
3. Brief facts of the case as given by the complainant Muhammad Jahangir (PW-10) in the written application (Ex- PI), on the basis of which the formal FIR (Ex.PG) was chalked out are that the complainant was resident of Mauza Ordhwal. On 02.08.201 1, he (complainant) anlog with Ghulam Murtaz (PW-11), Muhammad Zameer son of Sher Khan (given up PW and his brother Muhammad Zameer (deceased) went to plough their fields situated in village Odharwal near Sargodha Bye-Pass road and after ploughing the fields they were returning to their home, and when at about 11:30 a.m. they reached near the main road of Sargodha Bye-Pass, Qurban Hussain (appellant) and Liaquat Ali (co-accused since acquitted) came there on their motorcycle and raised lalkara to the brother of the complainant, namely Muhammad Zameer (deceased) to teach him a lesson for quarreling. About 02 months prior to the occurrence, Qurban Hussain (appellant) and Muhammad Zameer (deceased ) had quarreled with each other .
Qurban Hussain (appellant) then, took out his pistol .30 bore from his fold (of shalwar) and made two consecutive fire shots. Liaquat Ali (co-accused since acquitted) also took out pistol from his fold (of Shalwar) and made two fire shots. A fire Shot made by Qurban Hussain (appellant) hit at the left eye of Muhammad Zameer (deceased) whereas a fire shot made by Liaqut Ali (co-accused since acquitted) hit at the middle of the hip of Muhammad Zameer (deceased) due to which Muham mad Zameer (deceased) fell on the ground. The complainant And his maternal uncle Ghulam Murtza (PW-11) and maternal cousin Muhammad Zameer (given up PW) went forward while viewing the occurrence. The accus ed persons fled away from the spot while giving abuses. It was further alleged in the FIR that Qurban Hussain (appellant) and Liaquat Ali (co-accused since acquitted) committed the murder of Muhammad Zameer (decesed). Motive behind the occurrence was a previous quarrel.
4. The appellant Qurban Hussain was arrested by Ijaz Abbas, SI (PW-13) on 07.10.201 1. On 17.10.201 1, the appellant Qurban Hussain led to the recovery of pistol (P-1), which was taken into possession by Ijaz Abbas, SI (PW-13) vide recovery memo. Ex.PB. After completion of investigation, the challa n was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant and his co-accused on 24.11.201 1, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution produced 13 witnesses during the trial. Muhammad Jahangir complainant (PW -10) and Ghulam Murtza (PW -11) are the witnesses of ocular account.
The medical evidence was furnished by Dr . Muhammad Haleem, (PW -8).
Ahmad Sher , SI (PW -12) and tjaz Abbas, SI (PW -13) are the Investigating Of ficers of this case.
Zafar Mehmood (PW -5) is the witness of recovery of pistol on the pointation of the appellant vide memo. Ex.PB.
Hamid Rasheed 525/HC (PW-1), Samand Khan Constable (PW-2), Rehmat Ullah HC (PW-3), Muhammad Safdar Patwari Halqa (PW-4), Tanveer Abid (PW-6), Azmat Ali Constable (PW-7) and Muhammad Hussain shah, SI (PW- 9) are the formal witnesses.
The prosecution also produced documentary evidence in the shape of scaled site-plans of the place of occurrence (Ex. PA) and Exh. PA/1, memo. of possession of pistol 30 bore P1 (Ex. PB), memo. of possession of last worn clothes of the deceased (Ex. PC), post-mortem report of the deceased (Ex. PD), pictorial diagrams Ex. PD/1 and Ex. PD/2, application for Post-mortem of the deceased (Exh. PE), inquest report of Muhammad Zameer deceased (Exh. 'PF), copy of FIR of the instant case (Exh. PG), copy of FIR of the motive occurrence (Exh. PH), application of Muhammad Jahangir (complainant) for registration of FIR (Exh. PI), memo . of possession of Honds 125 motorcycle ( Exh. PJ), memo. of possession of blood stained earth (Ex. PK), memo. of possession of empties of pistol .30 bore (Ex. PL), memo. of possession of Tractor Fiat/480 (Ex. PM), rough site-plan without scale of the place of occurrence (Ex. PN), site-plan without scale of place of recovery of Honda 125 (Ex. PO), site-plan without scale of place of pistol .30 bore (Ex. PP), report of Forensic Science Agency , Punjab (Ex. PQ), report of Serologist (Ex.PS), report of Chemical Examiner , Punjab Lahore (Ex.PR) and closed its evidence.
6. The statement of the appellant under Section 342 of Cr.P.C. was recorded. He refuted the allegations levelled against him and professed his innocence . While answering to a question that 'Why this case against you and why the PWs have deposed against you " the appellant replied as under:-- "I have been falsely involved in this case, in the background of previous enmity and grudge, which the complainant was carrying on account of the registration of criminal case FIR (Exh. PH). In fact, this was an unseen occurrence.
The deceased was murdered in a road side dacoit early in the morning on fatefu l day. Deceased was a well off person and despite of this fact, nothing like valuable article, i.e. mobile phone, watch, money wallet, ring etc were recovered by Investigating Officer or any other person from his dead body . The story mentioned by the complainant is afterthought and this act was also nega ted by the documentary evidence which is Exh. DD. The dead body was shifted by Rescue 1122 from the place of occurrence at about 12:20 p.m. which is much prior to alleged story narrated in the FIR and alleged witnesses reached in the hospital at subsequent stage. Since the tracing of unknown culprits was a difficult task for the police, therefore, the police in conniv ance with the complainant party who were having suspicions and ill-con ceived motives against me. In the background of the aforementioned grudge, falsely involved me in this case through consultation, deliberation and concoction on the part of the police and the prosecution."
The appellant Qurban Hussain neither made statement on oath as envisaged under Section 340 (2), Cr.P.C. nor produced evidence in his defence.
The learned trial Court vide its judgment dated 02.06.2014, while acquitting Liaquat Ali co-accused, convicted and sentenced the appellant as mentioned and detailed above.
7. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and has falsely been implicated in this case by the complainant party; that the occurrence was unseen which took place at a deserted place in we hours of the morning and this fact is also established from the time that elapsed between the death and post-mortem examination, mentioned by Dr. Muhammad Haleem (PW-8); that there is gross delay of 02 hours and 05 minutes in lodging the FIR, whereas, the occurrence took place on a metalled road which was situated at a distance of only 05 kilometers from the police station therefore, the above mentioned delay in lodging the FIR has created serious doubt regarding the truthfulness of the prosecution story; that eye- witnesses of the prosecution, namely, Muhammad Jahangir complainant (PW-10) and Ghulam Murtaza (PW-11) could not given any plausible reason for their presence at the spot at the relevant time and as such, they are chance witnesses therefore, their evidence is not worthy of reliance; that there is only one person required to drive a tractor and plough the fields and as such, there was no need of presence of the eye-witnesses of the prosecution at the crime scene at the relevant time; that the story narrated by the complainant in the FIR is in conflict with the medical evidence because according to the said story one fire shot made by Liaquat Ali (co- accused since acquitted) on the hip of Muhammad Zameer deceased, was not found by the Medical Officer at the time of post-mortem examination of the deceased; that as the prosecution evidence has been disbelieved qua Liaquat Ali co-accused therefore, the same evidence cannot be believed against Qurban Hussain appellant without independent corroboration which is very much lacking in this case; that the prosecution witnesses made dishonest improvements in their statements in order to bring their evidence in line with the prosecution case by stating that Muhammad Zameer Deceased alighted from the tractor prior to the occurrence and by mentioning that the motorcycle used during the occurrence by the accused was owned by Qurban Hussain appellant and they were confronted with their previous statements and dishonest improvements made by them were brought on the record therefore, the evidence of such eye-witnesses is not reliable; that dead body of Muhammad Zameer deceased was not identified by the eye-witnesses of the prosecution, namely, Muhammad Jahangir complainant (PW-10) & Ghulam Murtaz (PW-11) and the same was identified by Tanveer Abid (PW-6) and Niaz Ali (given up PW) which shows that the eye-witnesses were not present at the time of occurrence; that it has also been brought on the record that the dead body of Muhammad Zameer deceased was taken to the hospital by the staff of Emergency Service "1122" which also negates the presence of eye-witnesses at the spot; that as per evidence of Ghulam Murtaz (PW-11), Muhammad Zameer deceased and Muhammad Jahangir complainant (PW-10) alighted from the tractor in order to beg pardon from the appellant but the blood was also seen on the tractor which further contradicted the evidence of the above mentioned eye-witness; that as per prosecution case in the earlier occurrence of motive, it was Muhammad Jahangir complainant (PW-10) who dragged Qurban Hussain (appellant) by putting a rope around his neck and if the, above-mentioned eye-witness (Muhammad Jahangir PW-10 was present at the spot at the relevant time than he would have been the prime target of the appellant but Muhammad Jahangir complainant (P.W.-10) did not receive a single scratch on his body which shows that he was not present at the spot at the time of occurrence; that as per evidence of the prosecution eye-witnesses, fire shots made by the appellant and his co- accused also landed on the tractor, driven by Muhammad Zameer deceased but no mark of fire shots on the tractor of the deceased were noted by the Investigating Officer; that pistol (P-1) has allegedly been recovered from the possession of Qurban Hussain appellant but as per report of the Punjab Forensic Science Agency, Lahore (Ex.PQ) the above-mentioned pistol (P-1) along with the empties was deposited together in the office of FSA on 24.12.2011, therefore, the above-mentioned prosecution evidence qua the recovery of pistol (P-1) and positive report of Punjab Forensic Science Agency, Lahore (Ex.PQ) is of no avail to the prosecution; that the prosecution miserably failed to prove its case against the appellant beyond the shadow of doubt therefore, this appeal may be accepted and the appellant may be acquitted form the charge and the murder reference be answered in the negative.
8. On the other hand, it is argued by learned Additional Prosecutor General assisted by learned counsel for the complainant that the occurrence in this case took place on 02.08.2011 at 11:30 a.m. and the matter was reported to the police by Muhammad Jahangir complainant (PW-10) through written application (Ex.PI), on the same day at 01:15 p.m. and the formal FIR (Ex.PG) was also lodged on the same day at 01:35 p.m; that as the FIR was promptly lodged therefore, the same rules out the possibility of any concoction or deliberation; that the occurrence took place in the broad day light and as the appellant was previously known to the complainant party therefore, there was no chance of any mis-identification of the appellant; that acquittal of Liaquat Ali co- accused is of no avail to the appellant because the role attributed to the above-mentioned Liaquat Ali co- accused in the FIR of Making fire shot on the hip of Muhammad Zameer deceased was not supported by the medical evidence, whereas, the role assigned to Qurban Hussain appellant of making fire shot on the left eye of Muhammad Zameer deceased has fully been supported by the medical evidence; that prosecution case against the appellant is further corroborated by the recovery of 30 bore pistol (P-1) and positive report of Punjab Forensic Science Agency, Lahore (Ex.PQ); that the motorcycle which was used during the occurrence was also recovered from the possession of the appellant; that the motive of previous enmity between Qurba Hussain appellant and Muhammad Hussain appellant and Muhammad Zameer deceased was also proved through documentary evidence i.e. previous FIR Ex.PH and reliable oral evidence of the prosecution; that there is no substance in the appeal filed by Qurban Hussain (appellant); that as Qurban Hussain appellant has committed a heinous offence therefore, there is no mitigating circumstances in this case hence, his appeal may be dismissed, conviction and sentence of the said appellant may be upheld and maintained and murder reference be answered in the affirmative. Insofar as Criminal Appeal No. 458 of 2014, filed by the complainant against the acquittal of Liaquat Ali co-accused is concerned, learned counsel for the complainant does not press the said appeal.
9. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance.
10. Prosecution story , as mentioned in the written application of Muhammad Jahangir complainant (Ex.PI) on the basis of which the formal FIR (Ex.PG) was lodged, has already been reproduced in para No.3 of this judgment therefore, there is no need to repeat the same.
11. The occurrence in this case took place on 02.08.201 1 at 11:30 a.m. The matter was reported to the police by Muhammad Jahangir complainant (PW-1) through written application (Ex.PI) on the same day at 01:15 p.m, whereas, the formal FIR (Ex.PG) was also lodged on the same day i.e on 02.08.2 011 at 01:35 p.m. The distance between the place of occurrence, the place of occurrence and its distance from the police station, we are of the view that the FIR was promptly lodged in this case and there was no' deliberate or conscious delay reporting the matter to the police.
12. The ocular account of the prosecution was furnished by Muhammad Jahangir complainant (PW-10) and Ghulam Murtaza (PW-11). The occurrence in this case took place at Sargodha Bye-Pass within the area of village Odharwal police section Sadar District Chakwal. Muhammad Jahangir complainant (PW-10) is also resident of village Odharwal, where the occurrence took place. Although Ghulam Murtaza (PW-11) is resident of village Chakora but during cross-examination of Muhammad Jahangir complainant (PW-10), it was brought on the record that his village is situated only at a distance of 01 kilometer from village Odharwal, where the occurrence took place. Both the abovementioned witnesses being brother and maternal uncle, of the deceased respectively, have given plausible reason for their presence at the crime scene at the time of occurrence by stating that on the day of occurrence, they along with Muhammad Zameeer deceased went to plough their land on a tractor which was being driven by Muhammad Zameer deceased and after ploughing the land when they were coming back to their home and they reached at Sargodha Bye-Pass Road, they were intercepted by the accused and the occurrence was committed. Tractor (P-7) of Muhammad Zameer deceased was recovered from the place of occurrence on the day of occurrence i.e. on 02.08.2011 through recovery memo. (Ex.PM) and the recovery of the said tractor was also proved through the evidence of Ghulam Murtaza (PW-11). It has been argued by learned counsel for the appellant that this fact has been brought on the record that the dead body of Muhammad Zameer (deceased) was taken to the hospital by the Staff of Emergency Service 1122, which shows that the dead body was not brought to the hospital by the above-mentioned eye-witnesses, and it establishes that the said eye-witnesses were not present at the crime scene, at the time of occurrence but I have noted that Muhammad Jahangir (PW-10) has himself stated during his cross-examination that an, unknown person had called rescue 1122, after the occurrence. Even otherwise, the above-mentioned eye- witnesses were not expected to take themselves the dead body of Muhammad Zameer (deceased) to the hospital and if the dead body of the deceased was brought to the hospital in the ambulance of the above- mentioned Emergency Service, then the same does not negate the presence of the above-mentioned eye- witnesses, at the time of occurrence. Moreover, the minor contradictions in the statements of the eye-witnesses regarding the fact that the said eye-witnesses have stated that Muhammad Zameer (deceased) alighted from his tractor, prior to the occurrence whereas the blood was also seen on the tractor by the Investigating Officer is not sufficient to discard their evidence because both the eye-witnesses have not stated that Muhammad Zameer (deceased) after alighting from his tractor, covered some distance prior to the occurrence and if he was standing near to his tractor, then presence of blood on the tractor is quite natural. The other argument advance by learned counsel for the appellant that one of the eye-witnesses has stated that some fire shots made by the appellant also hit the tractor of the deceased, whereas no mark of bullet was noticed on the tractor by the Investigating Officer, has no substance because the same has no bearing on the material aspects of the case like the time of occurrence, the manner in which the occurrence took place, weapon used by the appellant and the role attributed to the appellant during the occurrence. Moreover, it is by now well settled that an accused cannot be extended any benefit due to any weakness on the part of the Investigating Officer, which weakness has no hearing on the merits of the case.
The occurrence in this case took place in the board day light i.e. on 2.8.2011 at 11.30 a.m. The appellant was earlier known to the above-mentioned eye-witnesses as there was previous enmity between the parties which has been proved on the record through earlier FIR (Ex.PH) and as such there was no chance of any mis- identification of the appellant. The aforementioned eye-witnesses were cross-examined at length but their evidence could not be shaken and they corroborated each other on all material aspects of the case. Their evidence is confidence inspiring and trustworthy.
13. The appellant also produced Kamran Rasheed (CW-1) in his defence, who was Incharge, Emergency Office Rescue 1122, Chakwal, who stated that on 2.8.2011, he received a telephone call regarding the presence of a dead body on Sargodha Bhoon Road, whereupon he reached at the spot and found that the dead body of Muhammad Zameer (deceased) was lying un-attended on the road. During his cross-examination by learned DPP, assisted by learned counsel for the complainant, he conceded that he never joined the investigation of this case as a witnesses. He further admitted that one Arif Butt was the Station Coordinator in the office of Rescue 1122, Chakwal and after his resignation, he was working as Assistant with Ch. Jalil-ur-Rehman, Advocate, who was representing the accused in this case. Although he furnished a report (Ex.DD) regarding the service, provided by the Rescue 1122 for shifting the dead body of Muhammad Zameer (deceased) to the hospital but he conceded during his cross-examination that the said report and entries referred therein were not in his handwriting. In the light of above, the above-mentioned defence evidence produced by the appellant was not worthy of reliance and the same rightly discarded by the learned trial Court.
14. The medical evidence of the prosecution was furnished by Dr. Muhammad Haleem (PW-8). He stated that on 2.8.201 1, he conducted postmortem examination on the dead body of Muhammad. Zameer deceased and found the following injuries on his body:
1. A lacerated wound/eye ball "left side" was missing. Color of abrasion found around the wound. All the margins were inverted. It was an entry wound.
2. Evidence of bleeding from both ears was there.
As per opinion of Dr. Muhammad Haleem (PW-8), the time that elapsed between the injury and death was immediate i.e., less than five mintues, whereas the time that elpased between the death and the postmortem examination was 6 to 12 hours. As per postmortem. report (Ex.PD), Dr. Muhammad Haleem (PW-8), conducted postmortem examination on the dead body of Muhammad Zameer (deceased) on 2.8.2011 at 7.00 p.m (as stated by Dr. Muhammad Haleem PW-8 in his cross-examination). As per prosecution evidence, the occurrence in this case took place on 2.8.2011 at 11.30 a.m and as such the time that elapsed between the death and the postmortem examination of the deceased as given by Dr. Muhammad Haleem (PW-10), coincide with the time of occurrence, mentioned by the eye-witnesses in this case. According to the evidence of above-mentioned eye- witnesses namely Muhammad Jahangir (PW-10) and Ghulam Murtaza (PW-11) out of the different fire shots made by Qurban Hussain appellant, one fire shot landed on the left eye of Muhammad Zameer deceased. The above-mentioned medical evidence has substantially supported the ocular account furnished by .Muhammad Jahangir complainant (PW-10) and Ghulam Murtaza (PW-11) to the extent of role attributed to Qurban Hussain appellant.
15. Insofar as the acquittal of Liaquat Ali co-accused is concerned, we have noted that in the FIR, the said co- accused was assigned the role of making a fire shot which landed on middle of the hop of Muhammad Zameer deceased but the abovementioned eye-witnesses at the time of recording of their statements did not assign any injury to the abovementioned co-accused. Moreover, as per medical evidence furnished by Dr. Muhammad Haleem (PW-8), there was no injury on the hip of Muhammad Zameer deceased and as such, the prosecution ease as set forth in the FIR (Ex. PG) was not supported by the medical evidence to the extent of Liaqat Ali co- accused (since acquitted), whereas the same has fully been supported against the appellant by ,the medical evidence and such, case of Qurban Hussain appellant is distinguishable from the case of the abovementioned acquitted co-accused therefore, acquittal of Liaquat Ali co-accused is of no avail to Qurban Hussain appellant.
Conflict between ocular account and medical evidence of the prosecution to the extent of injury attributed to Liaqat Ali co-accused (since acquitted) and discarding of the prosecution evidence of eye-witnesses in respect of the abovementioned co-accused is also of no avail to Qurban Hussain appellant, because the principal of "falsus in uno falsus in omnibus" has no universal application and it is by now well settled that the Courts in our country have to, "sift the grins from the chaff'. As the prosecution case against Liaqat Ali co-accused (since acquitted) was not supported by the medical evidence whereas, the same has substantially been supported against Qurban Hussain appellant by the medical evidence therefore, Qurban Hussain appellant has rightly been convicted and sentenced by the learned trial Court after sitting the grains from the chaff.
16. Learned counsel for the appellant has pointed out certain improvements in the statements of abovementioned eye-witnesses 'recorded by the learned trial Court regarding alighting of Muhammad Zameer deceased from the tractor prior to the occurrence and about mentioning the ownership of the motorcycle in the name of Qurban Hussain appellant, which was used during the occurrence, etc. but we have noted that the improvements made by the aforementioned eye-witnesses regarding the fact that as to whether the deceased alighted from the tractor prior to the occurrence or not etc. are minor in nature and there is no improvement regarding the material aspects of the case, like the manner of occurrence, time of occurrence, weapon used during the occurrence by the appellant, etc, therefore, the abovementioned improvem ents in the statements of the eye-witnesses regarding irrelevant facts are not suf ficient to discard their evidence.
17. As per prosecution case, the motive behind the occurrence was that there was a previous enmity between the accused party and the complainant party . Muhammad Jahangir complainant (PW-10) has stated in his examination in chief that about 11/2/2 months prior to the occurrence, there was a quarrel between Muhammad Zameer deceased and Qurban Hussain appellant and others for which criminal case was registered at P.S. Sadar District Chakwal. He produced in evidence the copy of FIR as Ex. PH regarding the occurrence of motive part of the case.
Evidence of Muhammad Jahangir complainant (PW-10) and Ghulam Murtaza (PW-11) regarding the motive part of the occurrence was also subjected to lengthy cross-examination but they remained consistent on this point.
Although it has been argued by learned counsel for the appellant that Muhammad Jahangir complainant (PW-10) had admitted during his cross-examination that in the motive occurrence it was he (Muhammad Jahangir complainant) who allegedly put a rope around the neck of Qurban Hussain appellant and dragged him on the ground and under the abovementioned circumstances, it was Muhammad Jahangir complainant (PW-10) who could have been the prime target of the appellant but he has not been caused any injury by the appellant which shows that in fact the said witness was not present at the spot at the time of occurrence but we have gone through the contents of FIR (Ex.PH) of the earlier occurrence which was lodged by the moth er of Qurban Hussain appellant and the contents of the said FIR show that it was Muhammad Zameer deceased who was assigned the role of inflicting hatchet blow on the thumb of real brother of Qurban Hussain appellant and no injury on the body of any member of the complainant party of the said FIR was assigned to Muhammad Jahangir complainant/PW -10 therefore, under the circumstances, Muhammad Zameer deceased was the prime target of the appellant and as such, there is no force in the abovementio ned arguments of learned counsel for the appellant. In the light of above, we are of the view that the motive, as alleged by the prosecution, has not been proved in this case through oral, as well as, documentary evidence i.e. FIR (Ex. P4).
18. Prosecution also produced evidence qua recovery of .30 bore pistol (P-1) from the possession of the appellant and positive report of the Punjab Forensic Science Agency , Lahore (Ex. PQ), according to which the empties recovered from the spot were found to be fired from pistol (P-1). However , it is noteworthy that 04 empties were recovered from the place of occurrence on 2.8.201 1 and pistol (P-1) was recovered from the possession of Qurban Hussain appellant on 17.10.201 1 but as per report of Punjab Forensic Science Agency (PSF A), Lahore (Ex.PQ), the empties and pistol were deposited together in the office of PFSA on 27.10.201 1, which shows that the empties and pistol (P-1) were kept together at the police station therefore, possibility cannot be ruled out that fake empties were prepared from pistol (P-1), and then the same were sent to the office of PFSA, Lahore for their comparison with the said Pistol. Under the circumstances, it is not safe to rely upon the prosec ution evidence qua the recovery of pistol (P-1) and positive report of PFSA , Lahore (Ex.PQ). Although motorcycle (P-6) has also been shown to be recovered from the possession of Qurban Hussain appellant which, according to the prosecution case, was used by the appellant for coming to the place of occurrence and for fleeing away from the spot after the occurrence but we have noted that no registration number of the motorcycle which was used by the accused during the occurrence has been mentioned in the FIR (Ex.PG) or in the statements of the abovementioned eye-witnesses, namely , Muhammad Jahangir complainant (PW-10) and Ghulam Murtaza (PW-11) recorded by the learned trial Court, therefore, the alleged recovery of motorcycle from the possession of Qurban Hussain appellant in inconsequential.
19. We have disbelieved the prosecution evidence qua the recovery of pistol (P-1) and motorcycle (P-6) from the possession of Qurban Hussain appellant however , if the prosecution evidence regarding the recovery of pistol (P-1) and motorcycle (P-6) is taken out of consideration even then the prosecution case is proved against Qurban Hussain appellant through reliable and trustworthy evidence of eye-witnesses namely Muhammad Jahangir complainant (PW-10) and Ghulam Murtaza (PW-11). Both the aforementioned eye-witnesses were cross-examined at length but their evidence could not be shaken. The evidence of abovementioned eye-witnesses is further supported by the medical evidence furnished by Dr. Muhammad Haleem (PW-8), postmortem report of Muahmmad Zameer deceased (Ex.PD) and pictorial diagrams (Ex.PD/1 & Ex.PD/2). Prosecution case against Qurban Hussain appellant is further corroborated by the evidence of prosecution witnesses qua the motive part of the occurrence and previous FIR lodged against Muhamm ad Zameer deceased (Ex. PH). The prosecution evidence in this respect is also consistent and reliable. We are therefore, of the view that the prosecution has fully proved its case against Qurban Hussain appellant beyond the shadow of any doubt.
20. Now coming to the quantum of sentence, we have noted certain mitigating circumstances in favour of the appellant, firstly , the prosecution implicated Liaqat Ali co-accused in this case but he was acquitted by the learned trial Court and Crl. Appeal No. 458 of 2014 , filed against the acquittal of the abovementioned co-accused, has been dismissed today by this Court as having been withdrawn by learned counsel for the complainant, secondly , we have disbelieved the prosecution evidence qua the recovery of .30 bore pistol (P-1) and motorcycle (P-6) from the possession of the appellant due to the reasons mentioned in Para No. 17 of this judgment, thirdly , the appellant has been assigned the role of causing single firearm injury on the body of Muhammad Zameer deceased and he did not cause any other injury on the body of the deceased. Keeping in view all the abovementioned facts, we are of the view that it is not a case of capital punishment therefore, in our view the death sentence awarded to Qurban Hussain appellant is quite harsh. It is well-recognized principle by now that accused is entitled for the benefit of doubt as an extenuating circumstance while deciding his question of sentence, as well. In this regard we respectfully refer the case of 'Mir Muhammad alias Miro vs. the State' (2009 SCMR 1188) wherein Hon'ble Supreme Court has held as under :- "It will not be out of place to emphasize that in criminal case, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence".
In another case Ansar Ahmad Khan Barki versus The State and another (1993 SCMR 1660 ), Hon'ble Supreme Court of Pakistan has held that the prose cution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for awarding him the normal penalty of death. We are convinced that Qurban Hussain appellant in the peculiar circumstances of this case deserves the benefit of doubt to the extent of his sentence, one out of two provided under Section 302(b) of PPC.
While treating it a case of mitigation, we have fortified our views by a judgment of the Hon'ble Supreme Court of Pakistan reported in the case of Ahmad Nawaz and another v. The State" (2011 SCMR 593) wherein at page 604, the Hon'ble Apex Court of the country , has been pleased to lay emphasis as under:-- The recent trend of the Courts with regard to the awarding of penalty is evident from several precedents. In the case of " Iftikhar-ul-Hassan v . Israr Bashir and another' (PLD 2007 SC 1 11), it was held that : 'that is settled law that provisions of Sections 306 to 308, PPC attracts only in the cases of Qatl-i-Amd liable to Qisas under Section 302(a), PPC and not in the cases in which sentence for Qatl-e-amd has been awarded as Tazir under Section 302(b), PPC. The difference of punishment for Qatl-e-amd as Qisas and Tazir provided under Sections 302(a) and 302(b), PPC respec tively is that in a case of Qisas, Court has no discretion in the matter of senence whereas in case of Tazir Court may award Tier of the sentence provided under Section 302(b), PPC and exercise of this discretion in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-e- Amd, keeping in view the circumstances of the case, award the offender the punis hment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Murataza v. State' (2004 SCMR 4), 'Faqir Ullah v. Khaliluz-Zaman (1999 SCMR 2203 ), 'Muhammad Akram v. State' (2003 SCMR 855) and 'Abdul Salam v. State' (2000 SCMR 338). The Court while maintaining the conviction under Section 302(b), PPC awarded him sentence of life imprisonment under the same provision and also granted him the benefit of Section 382-B of Cr.P.C. In Muhammad Riaz and another vs. The State (2007 SCMR 1413 ) while considering the penalty for an act of commission of Qatl-e-Amd it was observed that "No doubt, normal penalty for an act of commission of Qatl- e-Amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case".
(In Iftikhar Ahmad Khan v . Asghar Khan and another ( 2009 SCMR 502 ) it has been noted that :-).
"In other words, the law has conferred discretion upon the Court to withhold the penalty of death and to award the punishment of imprisonment for life, if the outlook of a particular case requires that course" (underlining italic and bold supplied)."
21. In the light of above discussion, the conviction of Qurban Hussain appellant under Section 302(b), PPC awarded by the learned trial Court is maintained but his sentence is altered from death to imprisonment for life.
The compensation awarded by the learned trial Court against appellant and sentence in default thereof are maintained and upheld. The benefit of Section 382-B, Cr .P.C. is also extended to him.
22. Consequently , with the above said modification in the sentence of Qurban Hussain appellant, Criminal Appeal No. 280 of 2014 filed by Qurban Husain appellant is, hereby dismissed. Criminal Appeal No. 458 of 2014 filed by the complainant against the acquittal of Liaqat Ali co-accused is hereby dismissed as having been withdrawn .
Murder Reference (M.R. No. 34 of 2014) is answered in negative and death sentence of Qurban Hassain appellant is not confirmed .