SADIQ MAHMUD KHURRAM, J. The appellant namely Muhammad Ajmal son of Muhammad Bakhsh was tried by the learned Additional Sessions Judge, Rajanpur along with his co-accused namely Nawaz son of Shakir and Muhammad Afzal son of Muhammad Bakhsh ( both since acquitted) in case instituted upon the private complaint titled "Allah Bakhsh Vs. Nawaz and two others" (relating to FIR No. 251 of 2014 dated 15.10.2014 registered at Police Station Dajjal District Rajanpur in respect of offences under sections 302 and 34 PPC) for committing the Qatl-i-Amd of Qadir Bakhsh son of Allah Ditta (deceased). The learned trial court vide judgment dated 30.11.2015, convicted Muhammad Ajmal son of Muhammad Bakhsh (convict) and sentenced him as infra: Muhammad Ajmal son of Muhammad Bakhsh: Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Qadir Bakhsh son of Allah Ditta (deceased) and directed to pay Rs.100,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
The co-accused of the appellant namely Nawaz son of Shakir and Muhammad Afzal son of Muhammad Bakhsh were however acquitted by the learned trial court.
2. Feeling aggrieved, Muhammad Ajmal son of Muhammad Bakhsh (convict) lodged Criminal appeal No.644 of 2015 against his conviction and sentence. The learned trial court submitted Murder Reference No.107 of 2015 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant Muhammad Ajmal son of Muhammad Bakhsh. We intend to dispose of the Criminal Appeal No. 644 of 2015 and Murder Reference No.107 of 2015 through this single judgment.
3. Precisely the facts necessary , as divulged in the statement of Allah Bakhsh son of Ghulam Haider (PW-4) are as under:- "On 15.10.2014 I proceed from my home to the house of Ghulam Hussain s/o Mewa Caste Jhamat in connection of my personal work. On reaching there it saw that Ghulam Hussain and Akbar s/o Ramzan were already sitting there after my reaching in the said Bathic Qadir Bakhsh (deceased) arrived. We remained sitting there. Ghulam Hussain went the house and brought meal which we took. We exchange our views. Thereafter Qadir Bakhsh (deceased) told that he had to go to adda Qasab in connection with his own work and he proceeded there from. I, Ghulam Hussain and Akbar went to Dajal on a motorcycle. When we cross adda Muhammad road, Nawab, Afzal and Ajmal while boarding on a motorcycle crossed us. When they reached near the tubale of Shamla Khosa they stopped Qadir Bakhsh (deceased) after stopping their motorcycle. They alighted from the motorcycle Muhammad Afzal took Qadir Bakhsh in his caught hold/jhappah. Ajmad(sic) took a bat of brick and gave it on the middle of the head of Qadir Bakhsh (deceased) again he took the same bat and give it on the left side of back of head of Qadir Bakhsh (deceased). I, Ghulam Hussain and Akbar also reached near Qadir Bakhsh (deceased) and witnessed the occurrence as the occurrence was a day light. On seeing us reaching the spot the above said accused persons left Qadir Bakhsh (deceased) and pushed him on the ground and fled away towards Adda Qasab. On reaching us he was pool of blood. In the mean time a Taxi car came there we requested to driver of the said car to take us to Dajal.
On reaching Dajal Hospital Docotor checked the injured Qadir Bakhsh (deceased, medical officer declared him to be dead. In the mean time Thanedar came there police officials. Thanedar asked about the previous enmity we told to Thanedar that Ajmal accused was having suspicion that Qadir Bakhsh (deceased) was having illicit relation with Abida Bibi sister in law (Bhabi. We have given safai regarding innocence of Qadir Bakhsh (deceased) in respect of the above matter . But the accused persons did not accept it and committed murd er of Qadir Bakhsh (deceased).
Accused persons with common intention commit the murder of Qadir Bakhsh (deceased). Thanedar recorded my statement Ex.PC, read over to me and I thumb marked the same in token of its correctness.
I proceeded towards place of occurrence with Thanedar where Thanedar took into possession blood stained earth from the place occurred after that I proceeded towards Jampur thereafter post mortem examination I took the dead body at my home for funeral prayer .
During the investigation the police with malafide intention after getting bribery police declared the accused persons namely Afzal and Nawab as innocent. All accused persons are real culprits. They have committed Qatal-e-amd of Qadir Bakhsh (deceased). Then I went in the office of my Advocate narrated him about the occurrence who drafted the complaint Ex-PC, which was read over to me I mark thumb impression on the same in token of correctness."
4. The accused were summoned to face trial in the case instituted upon the private complaint titled "Allah Bakhsh Vs. Nawaz and two others" (relating to FIR No. 251 of 2014 dated 15.10.2014 registered at Police Station Dajjal District Rajanpur in respect of offences under sections 302 and 34 PPC) for committing the Qatl-i-Amd of Qadir Bakhsh son of Allah Ditta (deceased). The learned trial court framed the charge against the accused on 04.05.2015, to which the appellant and his co-accused pleaded not guilty and claimed trial.
5. The complainant in order to prove its case got recorded statements of as many as eight witnesses. The ocular account of the case was furnished by Allah Bakhsh (PW. 4), Ghulam Akbar (PW. 5) and Ghulam Hussain (PW-6).
Rana Hasnanin Abbas, Halqa Patwari, (PW-1) prepared the scaled site plan of the place of occurrence (Exh.P A).
Muhammad Bilal 1454/C, (PW-2) stated that on 19.10.2014, he took one sealed parcel said to contain blood stained earth to the office of Punjab Forensic Science Agency , Lahore and deposited the same there and on 04.11.2014 he took a sealed parcel said to contain a piece of brick to the office of Punjab Forensic Science Agency , Lahore and deposited the same there intact. Muhammad Ramzan 547/C (PW-3) stated that on 15.10.2014, he escorted the dead body of the deceased for its post mortem examination and also received the last worn cloth of the deceased. Muhammad Ismail (PW-7) witnessed the taking into possessio n the last worn clothes of the deceased through recovery memo (Exh.PB). Muhammad Hussain (PW-8) identified the dead body of the deceased and also witnessed the taking into possession the last worn clothes of the deceased through recovery memo (Exh.PB). The complainant gave up witne sses Aziz Ahmad as being unnecessary vide his statement recorded on 11.11.2015. The learned trial court also examined seven witnesses as Court Witnesses. Muhammad Jamal 630/C (CW-1) stated that on 31.10.2014, the appellant led to the recovery of a blood stained piece of a brick (Exh.P4) which was taken into possession through recovery memo (Exh.PF). Rasheed Ahmad 325/C (CW-2) stated that on 20.10.2014, the Investigating Officer took into possession the Call Data through recovery memo (Exh.PG) and on 28.10.2014 the Manager of Khushhali Bank handed over a CD containing CCTV footage which the Investigating Officer took into possession through recovery memo (Exh.PH). He further stated that on 31.10.2014, the appellant led to the recovery of a blood stained piece of a brick (Exh.P4) which was taken into possession through recovery memo (Exh.PF). Aman Ullah /HC (CW-3) stated that on 31.10.2014, the Investigating Officer handed over to him one sealed parcel said to contain a blood stained piece of a brick which he on 04.11.2014 handed over to Muhammad Bilal 1454/C, (PW-2) for its onward transmission to Punjab Forensic Science Agency , Lahore. Ayyaz Ahmad, SI (CW-5) recorded the formal FIR (Exh.PC/1). Mr. Farhan Elahi, Manager Khushali Bank, (CW-7) stated that on 15.10.2014 an amount of Rs. 2602 8/- was deposited in the bank on behalf of Muhammad Afzal (co-accused since acquitted) and on 27.10.2014, the Investigating Officer took into possession a CD (Exh.P6) containing CCTV footage. Muhammad Saidq, SI (CW-6) investigated the case from 15.10.2014 till 11.02.2015, arrested the appellant on 26.10.2014 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. On 20.11.2015, the complainant closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency , Lahore (Exh.PN) relating to the earth taken into possession and the report of Punjab Forensic Science Agency , Lahore (Exh.PO) relating to the blood stained piece of brick.
6. The prosecution got examined Dr. Muhammad Irfan (CW-4), who on 15.10.2014 was posted as Medical Officer at THQ Hospital, Jampur and on the same day conducted the postmortem examination of Qadir Bakhsh son of Allah Ditta (deceased). Dr. Muhammad Irfan (CW-4), on examining the dead body of Qadir Bakhsh son of Allah Ditta (deceased) observed as under: "Following injuries were noted:-
1. Lacerated wound 5x3 c.m on the right side of skull into bone exposed 8 c,n (sic) above the right ear, clinically fractured of the skull.
2. Lacerated wound of 2x2 c.m on the right side of back of the skull and into bone exposed.
3. A bruise 3x3 cm on the medial side just below the right knee joint.
4. A bruise of 2x2 on the right knee joint, a bruse of 2x2 c.m on the back of left hand.
5. A bruise of 3x3 c.m above left eye.
On dissection of injury No;.1 there is fracture of partial bone alongwith fractured of the frontal bone. On dissection of injury No.2 there is fracture of the occipital bone.
In my opinion all injuries were ante mortem caused by blunt edged weapon causing fracture of the skull. Death occurred due injuries to the vital organ brain, caused by injury No.1 and 2 leading to hemorrhage and shock and death which is sufficient to cause death in the ordinary course of nature."
7. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Ajmal son of Muhammad Bakhsh under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied as under:- "I am innocent. Infact, the alleged occurrence had not taken place. Actually it was a road side accident in which the deceased Qadir Bakhsh fell down from the motorcycle and died. In the year 2014, the deceased got registered a case FIR No. 169/14 P.S, Saddar Jampur in which the complainant was witness. I was sent to the judicial lock up.
In that case compromise was effected and five lac rupees was fixed as Chatti/compound money , out of them four lac rupees were paid to the complainant/deceased but one lac was out standing. Complainant appeared before the court and compounded the offence and I was released in that case. After my release from the jail. Complainant /deceased and complainant of this case demanded from me the out stainding (sic) amount one lac which I could not pay. In the meanwhile the deceased met an road accident and died due to that accident. The complainant due to previous enmity and getting the previous out standing one lac Chati and further getting Chatti, I was falsely involved in this case which was actually a road side accident. Story of the comp lainant of this case is baseless, false, concocted one. I am innocent."
The appellant namely Muhammad Ajmal son of Muhammad Bakhsh opted not to get himself examined under section 340(2) Cr.P.C however produced certified copy of post arrest bail petition titled as "Muhammad Ajmal Vs. State" as Ex.D-G, certified copy of affidavit tendered by Qadir Bux, deceased of this case and injured /complainant of case FIR No. 169/14 P.S Saddar Jamp ur as Ex.D-H, and order dated 08.09.2014 passed by Syed Muhammad Azam Javed, Magistrate Section 30, Jampur as Ex.D-1, in his defence.
8. On the conclusion of the trial, the learned Additional Sessions Judge, Rajanpur convicted and sentenced the appellant as referred to above.
9. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false. That the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant in support of this appeal, further contends that the story of the prosecution mentioned in the F.I.R., on the face of it is highly improbable and the reason assigned by the complainant and the eye-witnesses for being present at the place of occurrence is without any justification. He further contended that the statements of Allah Bakhsh (PW. 4), Ghulam Akbar (PW. 5) and Ghulam Hussain (PW-6) were not worthy of reliance. The learned counsel for the appellant further submitted that the learned trial court while disbelieving the same evidence has acquitted the co-accused of the appellant namely Nawaz son of Shakir and Muhammad Afzal son of Muhammad Bakhsh and the conviction awarded to appellant on the basis of same evidence is not justified. He also argued that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant has also argued that the use of a piece of brick by the appellant for causing injuries reveals that the appellant had no intention to commit Qatl-i-Amd of the deceased and submitted that the facts of the case, even if accepted, revealed that the appellant had committed an offence of Qatl Shibih-i-Amd as defined by section 315 PPC and made punishable under section 316 PPC. He finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.
10. On the other hand, learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses.
Learned counsels further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements of Allah Bakhsh (PW. 4), Ghulam Akbar (PW. 5) and Ghulam Hussain (PW-6). They further argued that the recovery from the appellant also corroborated the ocular account. They contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly , they prayed for the rejection of appeal.
11. We have heard the learned counsel for the appellant and learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial carefully .
12. The whole prosecution case revolves around the statements of Allah Bakhsh (PW-4), Ghulam Akbar (PW-5) and Ghulam Hussain (PW-6). These witnesses namely Allah Bakhsh (PW-4), Ghulam Akbar (PW-5) and Ghulam Hussain (PW-6) were related to each other . Their relationship with the deceased is also on record. The deceased namely Qadir Bakhsh was the paternal cousin of Allah Bakhsh (PW-4), uncle of Ghulam Akbar (PW-5) and paternal cousin of Ghulam Hussain (PW-6). To establish the story , the prosecution produced Allah Bakhsh (PW-4), Ghulam Akbar (PW-5) and Ghulam Hussain (PW-6), who all had explained their presence at the place of occurrence categorically . Allah Bakhsh (PW-4), Ghulam Akbar (PW-5) and Ghulam Hussain (PW-6) explained that on the day of occurrence they were together when the deceased namely Qadir Bakhsh also came there. The witnesses further explained that they had lunch together and thereafter , in company of each other proceeded towards Adda Qasab Wala and when they reached near the Tube-well of Shamla Khosa in Mauza Qasab Wala, the occurrence took place. During the cross-examination, all the three witnesses remained consistent with regard to the sequence of their journey to the place of occurrence. Allah Bakhsh (PW-4), Ghulam Akbar (PW-5) and Ghulam Hussain (PW-6) have fairly succeeded in proving their presence at the spot and witnessing the occurrence. They were subjected to lengthy cross-examination but the defence had failed to make cracks in their deposition and veracity of their statements. Allah Bakhsh (PW-4), Ghulam Akbar (PW-5) and Ghulam Hussain (PW-6), being close relatives of the deceased had no reason to falsely implicate the appellant in the commission of the offence substituting him, letting off the real culprits. There is no such material available on record which would indicate substitution of the appellant in the case with the real culprit. Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of Irshad Ahmad and others v. The State and others (PLD 1996 SC 138). The appellant has not been able to establish any animosity of the complainant or the police for his false involvement in the case. Allah Bakhsh (PW-4), Ghulam Akbar (PW-5) and Ghulam Hussain (PW-6) ,in a straightforward manner , held the appellant responsible for the murd er of Qadir Bakhsh (deceased).
Mere relationship of the prosecution witnesses with the deceased and inter-se is not sufficient to discredit their testimony . In this regard, reference is made to the judgment in the case titled as Ijaz Ahmad v. The State (2009 SCMR 99 ) wherein the August Supreme Court of Pakistan was pleased to observe as under:-- "In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy . It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relation-ship with the deceased, would not let go the real culprit or substitute an innocent person for him."
Allah Bakhsh (PW-4), Ghulam Akbar (PW-5) and Ghulam Hussain (PW-6), by no stretch of imagination, can be declared as chance witnesses, as pressed time and against by the learned counsel appearing on behalf of the appellant, because they have rendered a plausible justification for their presence at the place of occurrence.
13. The occurrence in this case took place in the broad-daylight at about 2.25 p.m which was reported by the complainant namely Allah Bakhsh (PW-4) at 3.35 p.m. and whose statement (Exh.P .C.) was recorded by Muhammad Sadiq, SI (CW-6), the Investigating Officer. On the basis of the recorded statement of the complainant namely Allah Bakhsh (PW-4) (Exh.P .C.), formal F.I.R. (Exh.P .C/I) was registered at 3.45 p.m when the police station was at a distance of six kilometers from the place of occurrence. Thus, it is appar ent that the FIR (Exh.PC/1) was got lodged within a short duration and the complainant not only named the appellant, but also mentioned each and every minor as well as material fact of the incident therein, which of course excludes the possibility of deliberation or consultation regarding false implication of the appellant in the instant case. The detail of the occurrence has been elaborately explained in the F.I.R. In this regard, reference is made to the judgment in the case titled as Muhammad Waris v. The State (2008 SCMR 784) wherein the August Supreme Court of Pakistan was pleased to observe as under:-- "The names of the said two eye-witnesses could not have been mentioned in such a promptly lodged F.I.R. if they had not been with the deceased persons at the time of their death."
14. The occurrence in question had admittedly taken place in broad daylight and the same, therefore, could not have gone un-witnessed nor could have the culprit escaped unnoticed. As it was a broad daylight occurrence and because of previous acquaintance of the parties, question of misidentification does not arise. Furthermore, in the incident in issue, a piece of brick had been used from very close proximity and, thus, it would not be difficult for the complainant party to identify the present appellant. The presence of the witnesses is further proved as according to the inquest report (Exh.PJ/2) it were the witnesses namely Ghulam Akbar (PW. 5) and Ghulam Hussain (PW-6), who were mentioned in the relevant column of the said report as being present at the place of occurrence at the time of the preparation of the inquest report (Exh.PJ/2) by Muhammad Sadiq, SI (CW-6), the Investigating Officer of the case and had also thumb marked the same. As per column No.11 of the inquest report (Exh.PJ/2), at the time of preparation of the same, the blood was in a fluid state and had not coagulated at that time. This also proves that the matter was reported to the police with promptitude by the witnesses. According to column No.8 of the inquest report (Exh.PJ/2), at the time of preparation of the same, the eyes of the decease d were also closed and had the deceased met his death in absence of the witnesses, then his eyes would not have been found closed. It is correct that it is a tradition in Pakistan that after the death, people immediately closed the eyes and mouth of the deceased. Thus, the closed eyes of the deceased further proves the prosecution's version regarding the presence of the witnesses at the place and time of occurrence.
15. The medical evidence produced by the prosecution in the case proved that the deceased had received injuries with a blunt weapon on the vital part of his body and he succumbed to the said injuries. The medical evidence fully supports the ocular account. The probable time between death and postmortem as noted by doctor coincides with the ocular account. The post-mortem examination of the dead body of Qadir Bakhsh son of Allah Ditta (deceased) had been conducted quite promptly leavin g no room for deliberations or fabrication of a story . Dr. Muhammad Irfan (CW-4), who on 15.10.2014 was posted as Medical Officer at THQ Hospital, Jampur and on the same day conducted the postmortem examination of Qadir Bakhsh son of Allah Ditta (deceased) at 5.30 p.m. Dr. Muhammad Irfan (CW-4), on examining the dead body of Qadir Bakhsh son of Allah Ditta (deceased) observed a lacerated wound ,measuring 5 c.m x 3 cm on the right side of skull and a lacerated wound measuring 2 c.m x 2 c.m on the right side of back of the skull. On dissection of injury No.1, fracture of partial bone alongwith fractured of the frontal bone was observed whereas on dissection of injury No.2 , fracture of the occipital bone was observed. Dr. Muhammad Irfan (CW-4) opined that all he injuries were ante mortem and were caused by blunt edged weapon.
Dr. Muhammad Irfan (CW-4) further opined that the death of the deceased occurred due injuries to the vital organ brain, caused by injury No.1 and 2, leading to hemorrhage and shock and death, which injuries were sufficient to cause death in the ordinary course of nature. The appellant has been saddled with the responsibility of causing the said fatal injuries.
16. The learned counsel for the appellant has also argued that the use of a piece of brick by the appellant for causing injuries reveals that the appellant had no intention to commit Qatl-i-Amd of the deceased and submitted that the facts of the case, even if accepted, revealed that the appellant had committed an offence of Qatl Shibih-i- Amd as defined by section 315 PPC and made punishable under section 316 PPC. The view that the appellant had no intention to kill is utterly devoid of merit. The well-entrenched principle of criminal administration of justice that to constitute a crime the act must be accom panied by a criminal intent or by such negligence or in difference of duty or to consequences as is regarded by the law as equivalent to criminal intent. We are conscious of the fact that intention is not capable of positive proof and it can only be implied from overt act and no hard and fast rules can be formulated to know the intention which must always be gathered from the circumstances of the case, and the matter which is primarily to be considered is the consequences which flow from an act because a man is usually presumed to intend the consequences of his own act. It may not be out of place to mention here that certain factors will have to be considered, such as for instance the number of blows, the nature of those blows and the parts of the body on which those blows have been inflicted to determine the intention of the appellant. The infliction of blows and seat of injuries also indicates as to the intention to be presumed. The question as to how the factum of intention or knowledge could be proved and it may be asked how can the' existence of the requisite intention or knowledge be proved seeing that these are internal and invisible acts of the mind? They can be ascertained only from external and visible acts. Observation and experience enable us to judge the connection between men' s conduct and their intentions. We know that a sane man does not usually commit certain acts heedlessly or unintentionally and generally we have no difficulty inferring from his conduct what was his real intention upon any given occasion. The case has been examined on the touchstone of the criterion as mentioned above and after gone through the entire evidence, eye account furnished by Allah Bakhsh (PW. 4), Ghulam Akbar (PW. 5) and Ghulam Hussain (PW-6), the medical evidence, infliction of grievous blows on vital parts of the deceased and the seat of injuries, we are of the considered opinion that it was a Qatl-i-Amd . The appellant has given serious blows on the head of the deceased with a piece of brick and he intended or knew himself that such blows were likely to fracture the skull of the victim and he must be taken to have known that he was likely to cause the death of victim and is therefore, guilty of Qatl-i-Amd . It is to be noted that the law looks as regard intention to the natural result of a man's act and not to the condition of his mind. From a legal point of view a person intends whatever he gives others reasonable grounds for supposing that he does intend. Where a man strikes brick blows on the head of the deceased mercilessly and practically kills him on the spot, he is guilty of murder . In sequel to above mentioned discussion, we are of the considered view that the multiple blows inflicted by the appellant on the head of the deceased; on the right side of skull causing fracture of partial bone alongwith fracture of the frontal bone and on the right side of back of the skull causing fracture of the occipital bone, are indicative of the gravity of the force which was used by the appellant to ensure the death of Qadir Bakhsh (deceased). No doubt the weapon used was not one that would of necessity cause fatal injuries, but the force used was so great as to show that the appellant intended to cause injury sufficient in the ordinary course of nature to cause death and that he is guilty of Qatl-i- Amd. There can be no doubt that a person delivering violent blows with a brick on the vulnerable part of the body of the deceased such as head must be deem ed to have intended to cause such bodil y injury as he knew was likely to cause the death of the person whom the blows were inflicted. Intention does not imply or assume the existence of some previous design or fore-thought. It means an actual intention, the existing intention of the moment, and is proved by, or inferred from, the acts of the accused and the circumstances of the case. It is a universal principle, that when a man is charged with doing an act, of which the 'probable consequence may be highly injurious, the intention is an inference of law resulting from the doing of the act. It is not necessary that where lethal weapon and fire-arm is not used the offence would fall within the ambit of section 315, P.P.C. In view of the above discussion, it is ascertained that the intent of the appellant was to cause death and that he is guilty of Qatl-i-Amd .
17. So far as the contention raised by the learned counsel for the appellant that the learned trial court while disbelieving the same evidence has acquitted the co-accused of the appellant namely Nawaz son of Shakir and Muhammad Afzal son of Muhammad Bakhsh and the conviction awarded to appellant on the basis of same evidence is not justified, is concerned, we have observed that the learned trial court has rightly acquitted the said co-accused of the appellant. The witnesses namely Allah Bakhsh (PW. 4), Ghulam Akbar (PW. 5) and Ghulam Hussain (PW-6) did not assign any role to the co-accused of the appellant namely Nawaz son of Shakir and Muhammad Afzal son of Muhammad Bakhsh (both since acquitted) of causing any injury on the person of the deceased namely Qadir Bakhsh. The prosecution did not allege any motive of committing the occurrence as against the co-accused of the appellant namely Nawaz son of Shakir and Muhammad Afzal son of Muhammad Bakhsh (both since acquitted) during the course of trial. During the investigation of the case, nothing was recovered from the possession of the said co-accused of the appellant namely Nawaz son of Shakir and Muhammad Afzal son of Muhammad Bakhsh (both since acquitted). The co-accused of the appellant namely Nawaz son of Shakir and Muhammad Afzal son of Muhammad Bakhsh (both since acquitted) were found to have been falsely involved and were declared innocent during the investigation of the case. Moreover we, keeping in view the prevailing social trend that innocent people of the family of the main culprit are implicated falsely to incapacitate them to pursue the case of actual culprit, are of the opinion that both the acquitted co-accused of the appellant had a case distinguishable from the appellant.
18. Regarding the recovery of the blood stained piece of a brick (P6) from the appellant Muhammad Ajmal, the same cannot be relied upon as the fact remains that the occurrence in the instant case had taken place on 15.10.2014, whereas the alleged recovery had been affected on 31.10.2014 and the said blood stained piece of a brick (P6) was deposited in the office of Punjab Forensic Science Agency , Lahore on 05.11.2014 i.e. after 21 days of the occurrence. The report of Punjab Forensic Science Agency , Lahore (Ex.PO) regarding forensic serological examination of the above mentioned blood stained piece of a brick (P6) showing the presence of human blood on the said brick (P6) is dated 12.12.2014, which means that the said article was exam ined for the presence of human blood and the report of Punjab Forensic Science Agency , Lahore (Exh.PO) was prepared after one month and twenty seven days of the occurrence. During such a long period the blood availa ble on the piece of brick (P6), if any, would have disintegrated. It is not possible to believe that the blood had not disintegrated by then and therefore the said recovery of the blood stained piece of a brick (P6) cannot be used as incriminating evidence against the appellant. The august Supre me Court of Pakistan in the case of "Faisal Mehmood Vs. The State"
(2016 SCMR 2138 ) has held as under:- "The report of the Chemical Examiner showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks."
19. The motive of the occurrence, given in the oral statement (Exh.PC), was that the appellant namely Muhammad Ajmal had suspicion about the illicit relations of his sister-in-law namely Abida Bibi with the (deceased) Qadir Bakhsh. No further details of said motive were mentioned in the oral statement (Exh.PC).There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. Muhammad Sadiq, SI (CW-6), the Investigating Officer of the case did not join the said Abida Bibi in the investigation of the case. The prosecution did not produce the said Abida Bibi in support of the alleged motive before the learned trial court. The august Supreme Court of Pakistan has held in the case of "Muhammad Asif v . The State" ( 2008 SCMR 1001 ) as under: "Coming to motive, no independent witness was produced in whose presence the altercation had taken place between Shafi and appellant at one side and Mazhar Hussain deceased on the other side."
So, this leads us to the conclusion that prosecution remained fail to prove the motive as alleged.
20. We have disbelieved the evidence of prosecution qua the motive and recovery of blood stained piece of a brick (Exh.P6) in this case. However , if the evidence of motive and recovery of blood stained piece of a brick (Exh.P6) is excluded from consideration, even then there is sufficient incriminating evidence available on the record against the appellant namely Muhammad Ajmal to prove the case of prosecution against him. As discussed earlier , the prosecution case was fully proved through the evidence of eye-witnesses namely Allah Bakhsh (PW. 4), Ghulam Akbar (PW. 5) and Ghulam Hussain (PW-6). The said eye-witnesses stood the test of lengthy cross-examination, but their evidence could not be shaken. Their evidence is quite natural, straightforward and confidence inspiring.
The ocular account of the prosecution as given by the abovementioned eye-witnesses is fully supported by the medical evidence furnished Dr. Muhammad Irfan (CW-4), therefore, we hold that the prosecution has proved its case against the appellant Muhammad Ajmal beyond the shadow of any doubt.
21. Now coming to the quantum of sentence we have noted some mitigating circumstances in favour of the appellant namely Muhammad Ajmal son of Muhammad Bakhsh, firstly , the evidence of recovery of blood stained piece of a brick (P-6) from the possessio n of the appellant namely Muhammad Ajmal son of Muhammad Bakhsh has been disbelieved by us for the reason mentioned in Para No.18 of this judgment, secondly the prosecution has alleged a specific motive in this case but has failed to prove the same. It is well recognized principle by now that the question of quantum of sentence requires utmost attention and thoughtfulness on the parts of the Courts. In this regard we respectfully refer the case of Mir Muhammad alias Miro v. The State (2009 SCMR 1188) wherein august Supreme Court has held as under:-- "It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the parts 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."
The august Supreme Court of Pakistan has held in the case of Ansar Ahmad Khan Barki v. The State and another (1993 SCMR 1660 ), that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death. We are convinced that the appellant namely Muhammad Ajmal son of Muhammad Bakhsh in the peculiar circumstance of this case deserves consideration to the extent of his sentence one out of two provided under section 302(b) of P.P.C. Moreover , it is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which had resulted into the death of Qadir Bakhsh deceased, therefore, in our view the death sentence awarded to the appellant is quite harsh. It has been held in number of judgments of the August Supreme Court of Pakistan that if a specific motive has been alleged by the prosecution then it is duty of the prosecu tion to establish the said motive through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of the accused. While treating it a case of mitigation, we have fortified our view by a judgment of the August Supreme Court of Pakistan 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:- "10. 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 111), it was held that "This is settled law that provisions of sections 306 to 308, P.P.C. attracts only in the cases of Qatl-i-amd liable to Qisas under section 302(A), P.P.C. and not in the cases in which sentence for Qatl-i-amd has been awarded as Tazir under section 302(b), P.P.C. The difference of punishment for Qatl-i-amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C. respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C. and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circum stances 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-i-amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCMR 4), Faqir Ullah v.
Khalil-uz-Zaman (1999 SCMR 2203 ), Muhammad Akram v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 338 )".
The august Supreme Court of Pakistan has held in the case of Mst. NAZIA ANW AR v. The State and others (2018 SCMR 91 1), while considering the penalty for an act of commission of Qatl-i-amd, as under :- "In these circumstances it is quite obvious to me that the motive asserted by the prosecution had remained utterly unproved. 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 ."
It is established law that if the prosecution avows 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 Nawab Ali v. The State (2019 SCMR 2009 ), Muhammad Akram alias Akrai v. The State (2019 SCMR 610), 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 Asif v. Muhammad Akhtar and others (2016 SCMR 2035 ) and Qaddan and others v. The State ( 2017 SCMR 148 ).
22. In the light of above discussion, the conviction of the appellant namely Muhammad Ajmal son of Muhammad Bakhsh as awarded by the learned trial Court through the abovementioned judgment is maintained but the sentence of death awarded to the appellant namely Muhammad Ajmal son of Muhammad Bakhsh under section 302(b), P.P.C. is altered to imprisonment for life. The compensation awarded by the learned trial Court under section 544-A of Cr.P.C. and sentence in default thereof is maintained and upheld. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, is also extended to the appellant namely Muhammad Ajmal son of Muhammad Bakhsh. Consequently , with the above said modification in the sentence of the appellant namely Muhammad Ajmal son of Muhammad Bakhsh, Criminal Appeal No.644 of 2015 is hereby dismissed.
23. Murder Reference is answered in Negative and the death sentence of Muhammad Ajmal son of Muhammad Bakhsh is Not Confirmed.