SARDAR AHMED NAEEM, J.---Muhammad Khan and Imran (appellants) along with their co-accused Sami Ullah Khan, Shafi Ullah Khan, Ameer Abdullah Khan son of Allah Dad, Ameer Abdullah son of Haji Muhammad Khan and Haji Iqbal (since acquitted) were tried by the learned Additional Sessions Judge, Mianwali in case FIR No.207/2013 dated 28.05.2013, for offence under sections 302, 109, 34, P.P.C., registered at Police Station City Mianwali. The learned trial Court vide judgment dated 31.10.2017, while extending benefit of doubt acquitted Sami Ullah Khan, Shafi Ullah Khan, Ameer Abdullah son of Allah Dad, Ameer Abdullah Khan son of Haji Muhammad Khan and Iqbal Khan (co-accused) whereas by holding the appellants Muhammad Khan and Imran guilty, convicted them under section 302(b), P.P.C. and sentenced them to death for committing murder of Alam Khan (deceased) with compensation of Rs.5,00,000/- each to the legal heirs of the deceased under section 544-A, Cr.P.C., in default thereof to further undergo simple imprisonment for six months each.
2. Imran and Muhammad Khan (appellants) filed Criminal Appeal No.101222 of 2017 and Criminal Appeal No.101223 of 2017, respectively, challenging their conviction and sentences. Murder Reference No.600 of 2017 is also before us for confirmation or otherwise of death sentence awarded to the appellants. Through this single judgment, we proposed to decide all the above mentioned matters.
3. Allegedly, on 28.05.2013 at about 11:30 a.m., the appellant Muhammad Khan armed with .30-bore pistol along with his co-accused Imran armed with "churra", made successive fire shots and "churra" blows hitting different parts of body of Alam Khan deceased, who after receiving fire shots and "churra" blows fell down on the ground. The accused persons fled away from the spot. The complainant along with PWs removed the injured to the hospital where he succumbed to the injuries. The murder was committed with the abetment of Sami Ullah, Ameer Abdul son of Allah Dad Khan, Ameer Abdullah son of Haji Muhammad Khan and Iqbal Khan co-accused. Hence, the present FIR.
4. After usual investigation, the challan was submitted before the Court. The learned trial Court framed charge against them to which, they pleaded not guilty and claimed trial, hence the prosecution evidence was invited.
5. The prosecution in order to prove its case produced as many as fourteen PWs.
6. Doctor Sohaib Hassan Niazi, Medical Officer (PW.1) conducted postmortem examination of the dead body of Alam Khan deceased on 28.05.2013 and found following injuries:-- i. A fire arm entry wound 1 x 1 cm over right side of upper abdomen (epigastrivm) 4 c.m. lateral to midline and 13 c.m. above umbilicus having inverted margins. ii. An incised wound, stab wound 3.5 x 2 c.m. over left upper chest, having sharp margins, 3 c.m. lateral to midline and 9 c.m. above left nipple. iii. An incised wound 10 x 3 c.m. having sharp margin over medial aspect of right arm, 3 c.m. from right exilla and 16 c.m. above right elbow. iv An incised wound 4 x 2 c.m. over right cubical fossa of right arm. 11 c.m. below injury No.3, muscle deep. v. An incised wound 2 x 1 c.m. over right lateral chest, 7 c.m. below right nipple. 15 c.m. lateral to midline. vi. An incised wound muscle deep 7 x 3 c.m. over left upper abdomen,4 c.m. lateral to midline, 15 c.m. below left nipple. vii. An incised wound 1 x 05 c.m. over intero medial aspect of left arm, 8 c.m. from axilla, 11 c.m. above elbow. viii. An incised wound 2 x 1.5 c.m. over left lateral aspect of left arm, 10 c m. from left shoulder, 20 c.m. from elbow. ix. A stab wound 2 x 1 c.m. over left posterior chest, 2 c.m. lateral to midline, 4 cm. medial to left scapula, horizontal shaped. x. A stab wound 2 x 1 an vertical shaped over left posterior chest, 8 c.m. below injury No.9. xi. 11-A. An entry wound of fire arm 1 x 0.5 c.m. over lateral aspect of left thigh 2 c.m. above left knee joint. xii. 11-B. Exit wound of injury No.11-A, 2 x 2 am. over posterior medial left thigh 20 cm from left knee joint. xiii. 12-A. Entry wound of firearm 1 x 1 c.m. over right posterior thigh 12 c.m. above knee joint. xiv. 12-B. Exit wound of injury No.12-A, 3 x 2 c.m. over right posterior thigh 22 cm. above knee joint. xv. An incised wound 7 x 2 c.m. over right posterior thigh 5 cm. above knee joint. A foreign metallic objection was retrieved from subcutaneous tissues of left posterior chest.
7. Abdul Waheed Constable (PW.2) was witness of blood stained earth and 30 bore Pistol along with two crime empties. Alam Khan ASI (PW.3) was also witness of keeping in safe custody blood stained earth and two empties, which he handed over to Abdul Waheed Constable for onwards transmission to the Punjab Forensic Science Agency, Lahore. Muhammad Shafiq Khan (PW.6) was Draftsman, visited the place of occurrence on 01.06.2013 and prepared rough notes for preparation of scaled site plan on the pointation of PWs. He also prepared scaled site plan of the place of occurrence and handed over the same the I.O.
8. Ikram Ullah Khan H.C. (PW.7) deposed about the safe custody of Pistol 30-bore and Knife allegedly recovered from the appellants which he handed over to Kashif Rasool Constable for onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Imtiaz Constable (PW.8) witnessed the recovery of .30 bore Pistol along with magazine (P-1) and bullets (P-2/ 1-4) and blood stained knife (P-3). Earlier on 28.05.2013, Saif Ullah handed over to him dead body of Alam Khan deceased for mortuary. After post-mortem examination of the dead body, the doctor handed over to him last worn clothes of the deceased which he handed over to the Investigating Officer who secured the same through Memo Ex.PH. Kaleem Ullah (PW.9) was witness of identification of the dead body. Nadir Khan (PW.10) was complainant of the case who supported the prosecution story. Ibrahim Khan (PW.11) was eye-witness of the occurrence. He was also witness of recovery of blood stained cotton and crime empties from the place of occurrence.
9. Sami Ullah Khan S.I. (PW.12) conducted investigation of the case. Kashif Rasool Constable (PW.13) deposited .30-bore Pistol and knife in the office of Punjab Forensic Science Agency, Lahore, intact. Ghulam Muhammad S.I. also partly conducted the investigation and challaned the accused.
10. The learned D.D.P.P. gave up Muhammad Zubair and Maskeen Ullah Constable being unnecessary and closed the prosecution evidence after tendering the reports of Punjab Forensic Science Agency, Lahore regarding blood stained cotton (Exh.PN), weapon of offence (Exh.PO) and photostat copy of blood stained Robkar as Mark-A.
11. After the prosecution evidence, statements of the accused were recorded. They denied the prosecution story and claimed innocence. In reply to a question "why this case against you and why did the witnesses depose against you", the appellant Imran stated as under:- "I am innocent. All the PWs are not only inter-se related but they also are inimical towards me. The sole purpose of the present case against me and my co-accused persons is just to blackmail us by putting pressure upon our family for compromise in the murder case of Rehmat Ullah. The complainant introduced the motive part of the present case of case of murder of my cousin Rehmatullah however the said motive could not be proved by the complainant and in this way as false motive had been shown. by the complainant against me. There is no plausibility of presence of the complainant as well as PWs at the place of occurrence and this factum also shows our innocence. During investigation version of the complainant was found false and due to false story mentioned in the FIR the complainant had obliged to improve his statement before this Court. I have no nexus with the occurrence. I offered all kinds of special oath in respect of my as well as of my co-accused's innocence however, the complainant party being false one did not accept the same.'
While answering to same question, Muhammad Khan appellant replied as under: "I am innocent. All the PWs are not only inter se related but they also are inimical towards me. The sole purpose of the present case against me and my co-accused persons is just to blackmail us by putting pressure upon our family for compromise in the murder case of Rehmat Ullah. The complainant introduced the motive part of the present case of murder of Rehmatullah however said motive could not be proved by the complainant and in this way as false motive had been shown by the complainant against me. There is no plausibility of presence of the complainant as well as PWs at the place of occurrence and this factum also shows our innocence. During investigation version of the complainant was found false and due to false story mentioned in the FIR the complainant had obliged to improve his statement before this court. I have no nexus with the occurrence. I offered all kinds of special oath in respect of my as well as of my co-accused's innocence however, the complainant party being false one did not accept the same."
The appellants produced in defence evidence i.e. copy of FIR No.237/2012 Police Station Mochh as Mark DA, copy of FIR No.270/2012 as Mark. D.B., copy of FIR No.243/ 2011 P.S. Mochh as Mark-D.C., copy of FIR No.147/ 2011 as Mark-D.D., copy of FIR No.18/2013 as Mark D-E, attested copy Emergency Call Form summoned by the court on application of accused side (containing two pages) as Ex. D-C and Exh.D.C/1.
The accused persons did not appear on oath under section 340(2), Cr.P.C. in disproof of allegations levelled against them by prosecution.
12. The learned trial Court after evaluating the evidence and considering the merits of the case, found the appellants guilty, convicted and sentenced them as detailed above. Hence, this appeal.
13. Learned counsel for the appellant contended that the occurrence had taken place on a thoroughfare at mid- day and many persons had witnessed the occurrence but no independent witness was cited by the prosecution; that the eye-witnesses were closely related to the deceased/ inter-se and failed to justify their presence at the crime scene; that the conduct of the eye-witnesses at the crime scene was un-natural; that their testimony was full of discrepancies which shattered the prosecution's case; that motive was not proved; that the recoveries were disbelieved by the learned trial court; that the participation of the appellant, namely, Imran Khan was not confirmed by the Investigating Agency and he was mentioned in column No.2 of the report submitted under section 173, Cr.P.C. being innocent and was also summoned on the request of the complainant made through an application, thus, he could not have been convicted by the learned trial court; that benefit of doubt is vested right of the accused, which is always resolved in his favour.
14. Learned Deputy Prosecutor General assisted by the learned counsel for the complainant vehemently opposed this appeal and submitted that the eye-witnesses withstood the test of cross-examination firmly and remained consistent on all material aspect of the case; that motive was proved; that it was day light occurrence, parties were known to each other and there was no question of mistaken identity; that the appellants were nominated in a promptly lodged FIR which excludes the possibility of consultation and deliberation; that medical evidence lend further corroboration to the complainant version and that prosecution has proved its case against the appellant beyond shadow of doubt.
15. We have heard the learned counsel for the parties and carefully perused the record.
16. It is evident from the record that accused and the complainant party had enmity between them. The occurrence took place on 28.05.2013 at 11:30 a.m. at Jahaz Chowk, Mianwali. It is in the evidence that both the parties had come to Sessions Court to attend some criminal case fixed for hearing on the fateful day. The accused party emerged at the crime scene and enacted the episode. During this occurrence, Alam Khan real nephew of the complainant was murdered. The complainant Nadir Khan reported the incident against Muhammad Khan, Imran Khan and acquitted co-accused. The Investigating Agency did not confirm the participation of all the accused in the occurrence except Muhammad Khan, the appellant. At trial, an application was moved by the complainant for summoning the accused mentioned in column No.2 of the report submitted under section 173, Cr.P.C. and the learned trial court summoned all those accused to face trial vide order dated 14.04.2014. The learned trial court also acquitted all the accused except the appellants, held them guilty, convicted and sentenced them as mentioned above.
17. The occurrence was witnessed by the complainant (PW.10) and Ibrahim Khan (PW.11). Admittedly, they were closely related to the deceased/ inter-Se. They withstood the test of cross-examination firmly but nothing favourable to the accused could be extracted. It was a day light occurrence. The presence of the eye-witnesses at the crime scene cannot be doubted as the parties were known to each other. The deceased sustained as many as 14 injuries. There were three firearm injuries and the remaining were either incised or stab wound. The eye-witnesses have furnished the mode and manner of occurrence that the accused eliminated the deceased and managed their escape good.
18. It is settled law that an interested witness is one who has animosity towards the accused and mere relationship with the deceased is not enough to discard his testimony and in fact it is the worth of testimony of a witness which determines his credibility. In this respect reliance can be placed on "Raqib Khan v. The State and another" (2000 SCMR 163). It is also not absolute principle that statement of a witness related to the deceased should be corroborated, rather the statement of a worst enemy could be relied upon if it inspires confidence and worth of his statement is not shaken. It is also observed that mere relationship of a witness with the deceased does not provide ground for discarding his statement. Now applying the above principle to the instant case, by determining the credibility of PW.10 and PW.11 on the touchstone of the principles laid down by the superior Courts.
19. As discussed above, the eye-witnesses have assigned a specific role to Muhammad Khan appellant of causing firearm injuries to the deceased, corroborated by medical evidence. The incident was promptly reported. The eyewitnesses saddled him with the responsibility of the said firearm injuries, proved fatal. He led to the recovery of pistol 30-bore as well as "Churra". The enmity between the parties was not only established rather admitted by the defence-appellant in their statements recorded under section 342; Cr.P.C. The material available on the record suggested that Rehmat Ullah real brother of Shafi Ullah appellant was murdered and Shahid Iqbal real brother of Alam Khan, the deceased was nominated accused in the said case and as both the parties had come to Sessions Court, thus, Alam Khan was done away with by the accused-appellant, in that backdrop. In the circumstances, conviction of the appellant under section 302 (b), P.P.C. was quite proper and is accordingly maintained.
20. At this stage, we may mention that the case of Imran appellant is distinguishable from the co-convict- appellant. The Investigating Agency has not confirmed his participation in the occurrence. His name find mention in column No.2 of the report submitted under section 173, Cr.P.C. being innocent. He was not arrested in this case. The complainant moved the application for summoning all those accused enlisted in column No.2 of the report submitted under section 173, Cr.P.C. The declaration of innocence was never challenged by the complainant party before any forum by way of private complaint or otherwise. He was attributed repeated "Churra" blows. The Investigating Agency confirmed that he was disable and was suffering from Polio. PW.14 admitted in the cross-examination that Imran joined the investigation voluntarily. The said investigation was verified by S.H.O., S.D.P.O., Saddar Circle and S.D.P.O. Esa Kheel circle. No recovery was effected from him.
We are of the view that the prosecution has failed to prove beyond reasonable doubt the presence of appellant Imran with Muhammad Khan at the time of the occurrence in furtherance of common intention of both of them to murder the deceased, in particular, when there is no proof of common intention. Assuming for the sake of arguments that he was present at the crime scene but mere presence by itself, in the circumstances of the case, is not enough to hold Imran guilty, thus, he is entitled to the benefit of doubt.
The motive behind the occurrence was that Rehmat Ullah real brother of the appellant, namely, Shafi Ullah was murdered and real brother of Alam Khan, namely, Shahid Khan was nominated accused of that case. Even this fact stands admitted by the accused/ appellants in their statement recorded under section 342, Cr.P.C. In the circumstances motive set up by the prosecution stands proved.##TE# At this stage, it was argued by the learned counsel that if the appellant had committed the crime of murdering the deceased then it must also be considered that Rehmat Ullah was done to death and Muhammad Khan the appellant committed Qatl-i-Amd of the deceased on that account. Consequently, it was argued that this should be considered as mitigating circumstance and a case was made out for awarding lesser penalty to the appellant.
Learned counsel relied upon "Alun Shah v. The State" (PLD 1967 SC 185), "Shera and others v. The State"
(1976 PCr.LJ 1028) and "Niamat v. The State" (1986 PCr.L.J 2820).
21. The appellant Muhammad Khan had murdered the deceased as he was the real brother of Shahid lqbal, who committed murder of Rehmat Ullah. This constituted mitigating circumstance in I -favour of the appellant.
The result is that although his conviction is maintained under section 302(b),, P.P.C. but the sentence of death awarded to him is altered to that of imprisonment for life.
22. In the above circumstances, we are of the view that the prosecution has fully succeeded in bringing home the guilt to the appellant, namely, Muhammad Khan beyond any shadow of doubt. He was rightly convicted by the learned trial court. As regard sentence, we considered that there are mitigating circumstances in withholding the death penalty for the reasons mentioned above i.e. nomination of Shahid Iqbal for committing murder of Rehmat Ullah. We think that the ends of justice will be met if the death sentence awarded to Muhammad Khan is altered to imprisonment for life. We order accordingly. The direction regarding compensation awarded under section 544-A, Cr.P.C. is, however, maintained. The appellant shall also be extended benefit of section 382-B, Cr.P.C. in commuting the period of imprisonment. Resultantly, Criminal Appeal No.101223 of 2017 is. dismissed.
23. However, Criminal Appeal No.101222 of 2017 moved by appellant, namely, Imran son of Abdullah is allowed and the impugned judgment to his extent is set aside. He shall be released forthwith if not required in, any other criminal case.
23. Murder Reference No.600 of 2017 is answered in the NEGATIVE and death sentences of the appellants are NOT CONFIRMED.
The case property shall be dealt with as directed by the learned trial Court and the record of learned trial Court be remitted immediately. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.