CH. ABDUL AZIZ, J.---This single judgment shall dispose of Criminal Appeal No.879 of 2012 filed by Usman alias Shanaan son of Muhammad Aslam (against his conviction), Criminal Revision No.649 of 2012 filed by complainant Rasheed Ahmed for the enhancement of compensation awarded to appellant Usman alias Shanaan and Murder Reference No.244 of 2012 sent by the learned Additional Sessions Judge, Sheikhupura for the confirmation or otherwise of the death sentence awarded to the appellant. The appellant was convicted and sentenced by the trial court vide judgment dated 28.04.2012 as under:- "convicted under section 302 (b) read with section 34, P.P.C. and was awarded death sentence, he was also ordered to pay an amount of Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of Yasin deceased, in the event of default in the payment of the amount the appellant was ordered to suffer imprisonment for a period of 6-months
2. The instant Murder Reference and the connected matters are arising out of FIR No.906/2007 dated 11.09.2007 under sections 302, 148, 149, P.P.C. registered at Police Station Sadar Sheikhupura. The FIR was registered on the report of Rasheed Ahmed, brother of deceased (PW.11).
3. Precisely the facts of the prosecution case as can be culled from the complaint (Exh-Pt) . and formal FIR (Exh-P1/1) are that on 11.09.2007 at 2:30 p.m. complainant Rasheed Ahmed (PW.11) along. with his brother Muhammad Yasin (deceased) and his sister's husband Muhammad Ashraf (PW.12) went to the shop of Saleem, a village barber. Muhammad Yasin was being shaved while Rashid Ahmad and Muhammad Ashraf PWs sat there inside the shop. Meanwhile, a white coloured Suzuki Car stopped thereat and Usman (appellant) armed with .44 bore rifle, Akbar alias Jagga (PO) armed with Kalashnikov, Akram and an unknown person, armed with .44 bore rifles came out of it. The driver of the car remained on his seat. Usman (appellant) fired a burst with his rifle .44 bore which hit Yasin deceased on his neck and left ear. Akbar (co-accused) fired a burst from his Kalashnikov hitting Yasin on his left shoulder, front nose, left side of chest and umbilicus. Akram (co-accused) fired from his rifle and the shot hit the deceased on the back of left flank. The unknown accused continued firing indiscriminately, creating fear and panic in the village bazaar. The accused persons while raising lalkaras after boarding on the car fled away. Muhammad Yasin succumbed to the injuries at the spot.
The motive statedly was that fifteen years prior to the occurrence Muhammad Yasin (deceased) had committed the murder of Muhammad Ashraf, brother of Muhammad Akbar (PO). Muhammad Yasin was convicted but subsequently acquitted on the basis of compromise.
4. In pursuance of the information furnished by the complainant, investigation of this case was entrusted to Muhammad Akram Inspector (PW.15) who proceeded to the crime scene where he inspected the dead body of the deceased, prepared the inquest report (Exh-PS), injury statement (Exh.PR), drafted application for postmortem examination (Exh.PT) and dispatched the dead body to the hospital for the purposes of postmortem under the escort of Izhar Hussain and Muhammad Zaman Constables. He also conducted the spot inspection and in pursuance thereof, prepared site plan (Exh.PU). From the spot, he also secured blood stained earth through recovery memo Exh.PK. He also recorded the statements of the witnesses under section 161, Cr,P.C.
Subsequently, the investigation of this cape was entrusted to Muhammad Shabbir Inspector (PW.13). He arrested Usman alias Shanaan (appellant) on 10.09.2008 and on 21.09.2008 the appellant in pursuance of a disclosure led to the recovery of rifle (P.1) which was taken into possession through recovery memo (Exh.PI).
After the completion of investigation, report under section 173, Cr.P.C. was submitted in the trial court.
5. In order to prove the case against the appellant and his co-accused, the prosecution produced as many as fifteen witnesses which, include Rasheed Ahmad (PW.11.) and Muhammad Ashraf (PW.12) eye-witnesses of the occurrence, Dr. Afzaal Sandhila (PW.14) who produced the medical evidence and Qalab Hussain SI (PW.8)
Muhammad Shabbir Inspector (PW.13) and Muhammad Akram Inspector (PW 1.3), who conducted the investigation of this case.
6. The medical evidence was furnished by Dr. Afzaal Ahmed Sandhila (PW-14). He deposed before the trial court that he had been working with Dr. Iftikhar Hussain, who left the job 2/3 years back and his whereabouts were not known and he was well aware about his signatures. He identified the signatures on postmortem report and other documents as that of Dr. Iftikhar Hussain. He deposed before the trial court that according to the postmortem report the following injuries were noted by said Dr. Iftikhar Hussain:-
(1) An entry wound on the right side of face with inverted margins, burnt measuring 0.5 cm x 0.5 cm of which exit wound on the skull posterior to left ear measuring 1 cm x 1 cm causing damage of skin, underlying muscles, vessels and fracture of under-lying bone of face.
(2) Entry wound on the back of left shoulder measuring 0.5 cm x 0.5. cm of which exit wound in front of left shoulder measuring 1.5 cm x 1.5 cm and 2 cm from the left side of neck and it was muscle deep.
(3) A lacerated wound on the left side of neck, measuring 2 cm x 2 cm blackened and muscle deep.
(4) An entry wound 1 cm x 1 cm central part of back side of chest, just below the neck and an exit wound 2.5 cm x 2.5 cm front of centre of neck tearing skin, muscles, major blood vessels of neck, treachea and esophagus.
(5) An entry wound measuring 0.5 cm x 0.5 cm on back of centre of chest of exit wound 2 cm x 2 cm on the left side of neck, damaging left aide of neck, major blood vessels and underlying bones.
(6) Entry wound measuring 0.5 cm x 0.5 cm on the left side of lower chest of which burnt and inverted margins of which an exit wound was present in front of centre of chest, measuring 1 cm x 1 cm on the left side of sternum, 10 cm from left nipple, damaging skin, underlying muscles, vertebrae, liver, panchreas and lower three ribs of left side of chest.
(7&8) Two entry wounds 0.5 cm x 0.5 cm at 1 cm distance on the mid part of outer of chest, 12 cm from the right nipple and exit of injury No.7 was present at upper part of outer chest, 5 cm from mills and exit wound of injury No.8 was present on back of lower chest measuring 2.5 cm x 1 cm damaging underlying skin, muscles, ribs; heart and major blood vessels arising from heart.
(9) Entry wound measuring 0.5 cm x 0..5 cm of firearm on the back of right side of lower chest of which exit wound was present on the lower part of left side of abdomen, measuring 2.5 cm x 2 cm damaging skin, underlying muscles of abdomen, small and large intestines, left kidney and underlying vertebrae.
(10) Firearm injury of which an entry wound measuring 0.5 cm x 0.5 cm with inverted and burnt margins on the outer of mid part of right arm of which exit wound in front of right shoulder measuring 3 cm x 4 cm and muscle deep.
(11) Entry wound 0.5 cm x 0.5 cm with inverted margins and burnt skin on the left side of upper part of pelvis of which an exit wound measuring 1.5 cm x 1.5 cm, just below the lower of left side of abdomen, 2 cm supra to entry wound, damaging skin and muscles of underlying area.
According to the opinion of the doctor, all the injuries were ante mortem and were very severe damaging all vital organs like heart, liver, kidney, causing immediate death as mentioned in injuries Nos.1, 2, 4, 5, 6, 7, 8, 9 and 10 which could cause immediate death. The time between injuries and death S was immediate and the probable time between death and postmortem was 8 to 12 hours.
7. The statement of the appellant was recorded under section 342, Cr.P.C. In response to the question "why this case against you and why the PWs deposed against you", the appellant replied as under:- "I have falsely been implicated in this case. No independent PW has appeared against, me. The PWs are related to the deceased as well as the complainant, as such they have deposed falsely due to malice and ulterior motive".
The appellant neither opted to appear as a witness under section 340(2), Cr.P.C. nor produced any evidence in his defence.
8. After the conclusion of trial, the learned trial court convicted the appellant as afore-stated, whereas his co- accused namely Muhammad Riaz was acquitted of the charge, hence, the appeal and murder reference.
9.The learned counsel for the appellant contended that the judgment of conviction, passed by the learned trial court is contrary to the law and facts of the case; that the learned trial court omitted to extend the benefit of doubts arising out of the prosecution case; that as a matter of fact the occurrence was not witnessed by any of the prosecution witnesses and the appellant was implicated in the case on account of previous enmity with co- accused Muhammad Akbar (PO); that the learned trial court failed to appreciate that the FIR was not registered at the time mentioned in the column No.1 of Exh.PJ/1; that even otherwise from the bare reading of the prosecution evidence, it is reasonably proved that the FIR was registered with inordinate delay; that though occurrence took place at 2:30 a.m. on 11.09.2007, however, the postmortem was conducted on the following night at about 1:30 a.m. and no explanation is put forward by the prosecution for this mysterious delay; that despite the availability of natural witnesses, the prosecution opted for the ocular account furnished by the related and interested witnesses; that the incident took place in the day light but no explanation is offered as to why the autopsy was conducted at the odd hours of the night; that the prosecution failed to prove the motive and even otherwise, the motive can best be attributed to Muhammad Akbar (PO) and that the learned trial court took no notice of the tampering made in the documents.
10. On the other hand, the learned Deputy Prosecutor General assisted by the learned counsel for the complainant vehemently controverted the arguments advanced by the learned Counsel for the appellant and submitted that the instant case is arising out of an FIR which was promptly registered at the relevant police station; that the appellant is specifically nominated in the FIR and that too in reference to the role performed by him in the commission of offence; that the ocular account is duly supported by the medical evidence; that the guilt of the appellant is further corroborated from his noticeable abscondance; that the ocular account further gets corroboration from the recovery of rifle; that the occurrence took place in the day light and the crime scene is situated in a populated area, hence, it is not possible that the occurrence could go unnoticed and in such a situation, the substitution of real culprits is illogical; that the production or non-production of a witness is the choice of the prosecution; that the barber, in whose shop, the occurrence took place was a poor man, hence, out of fear of the accused he opted not to appear in the court and in such situation, no adverse inference can be drawn against the prosecution and that since the guilt of the appellant is well established from the prosecution evidence, hence, he deserves no leniency.
11. Arguments heard, record perused with the able assistance of the learned counsel for the parties and the learned law officer.
12. The case of the prosecution primarily hinges upon the ocular account furnished by Rasheed Ahmed (PW.11) and Muhammad Ashraf (PW.12), the medical evidence brought on record through Dr. Afzaal Ahmed Sandhila (PW.14), the recovery of .44 bore rifle witnessed by Abdul Shakoor (PW.9). The prosecution sought corroboration from the motive as set out in the FIR which was stated to be an old blood feud between the parties.
13. The incident which led to the registration of the case took place at about 2:30 p.m. within the territorial jurisdiction of Police Station Saddar Sheikhupura. The crime scene is statedly situated at a distance of 12 kilometers from the said police station. According to the prosecution case, the incident was brought to the notice of the police by Rasheed Ahmad (PW.11) through the complaint (Exh.PJ), on the basis whereof formal FIR (Exh.PJ/1) was registered. The perusal of the record reveals that the defence failed to bring on record any circumstance which may caste some doubt regarding the time of the registration of the FIR. In such situation, we have all the good reasons to believe that the case is based on a promptly lodged FIR.
14. In order to evaluate the worth of the ocular account, it would be appropriate to have a look as to how the crime scene is situated. The place of occurrence is saloon (Hamam) of a barber, situated in a market, surrounded by numerous shops. According to the record, this market is positioned in a densely populated area.
Keeping in view the fact that the occurrence took place at about 2:30 p.m., hence, it cannot be said with any stretch of imagination that the occurrence could go unwitnessed.
In the instant case, the ocular account was furnished by Rasheed Ahmad (PW.11) and Muhammad Ashraf (PW.12). Rasheed Ahmad is the real brother of Muhammad Yaseen deceased whereas Muhammad Ashraf (PW.12) is not a close relative of the deceased but hails from the same brotherhood. Both, the witnesses, reasonably explained their presence at the crime scene by deposing that on 11.09.2007, they accompanied Muhammad Yaseen deceased to the shop of barber for the purposes of shaving of Yaseen deceased. It is very common in a rural background that relatives and friends, accompany each other to the shops of the barbers and have chats.
According to the narration of facts brought on record by Rasheed and Muhammad Ashraf (PW.11 and PW.12), the appellant Usman allegedly emerged on the scene in the company of his co-accused, while armed with .44 bore rifle and the shots fired by him hit on the left side of the neck and ear of the deceased. Both the PWs are found to be consistent as far as the attribution of injuries to the appellant is concerned. The medical evidence, which is brought on record through Dr. Afzaal Ahmad (PW.14), fully supports the ocular account of the witnesses so far as it relates to the injuries attributed to the appellant is concerned. In addition, both the PWs are the residents of the same vicinity, hence, can safely be termed as natural witnesses. The main objection of learned counsel for the defence pertains to the non-production of the barber, who according to him, was the most important witness in this case. Such argument of the learned counsel for the appellant runs contrary to the common social behaviour of the people of our country. Normally, people avoid to become part of the blood enmities of others. Moreso, when a person hails from lowly placed segment of our community. In the instant case, this is but quite natural for the barber to stay away from such like incidents. In somewhat similar circumstances, the Hon'ble Supreme Court of Pakistan in the case of Zakir Hussain v.The State (2009 SCMR 222) endorsed the same view in the following words:- "The place of occurrence being situated close to the residential houses of the parties, the presence of the eye- witnesses at the barber shop would not be challengeable and in any case the unconcerned persons present at the scene of occurrence usually hesitate to become witnesses in such cases to avoid enmity, therefore, the non- production of barber or any other person present at the spot is quite understandable and cannot be considered a circumstance adverse to the prosecution."
We have very carefully scrutinized the evidence of Rasheed Ahmed (PW.11) and Muhammad Ashraf (PW.12) and are of the view that the defence failed 'to shake the credibility of these witnesses. Nothing is brought on record, on the basis of which this court may draw a conclusion that the occurrence was not either witnessed by these PWs or they were not present at the crime scene. In these circumstances, this Court is of the view that the presence of the PWs at the crime scene is established and they have witnessed the occurrence.
15. The statements of the two eyewitnesses is getting due corroboration from the abscondance of the appellant. The occurrence took place on 11.09.2007. The appellant, subsequent to the registration of FIR, opted to become fugitive from the process of law. Resultantly, initially his warrants (Exh.PB) were obtained on 23.11.2007 and when he failed to surrender before the process of law, his proclamation (xh.PE) were issued on 07.12.2007. The appellant was arrested in this case on 10.99.2008 by Muhammad Shabbir Inspector (PW.13).
During his examination under section 342, Cr.P.C. he was duly confronted with his decampment but he failed to offer any plausible explanation. The abscondance of the appellant for such a considerable period is taken as an incriminating circumstance. Reliance in this respect can be placed to the case of Soba Khan and another v.The State and another (2017 PCr.LJ 211).
16. According to the record, the appellant led to the recovery of a rifle .44 bore (P.1), on 21.09.2008. However, the recovery of rifle becomes insignificant when seen in the context of non-recovery of crime empties from the place of occurrence. Though the report of FSL is available on record but the same has not been exhibited. Even otherwise, the report is only to the effect that the weapon is in working order and nothing more.
17. The motive is always an important aspect and can easily be termed as backbone of the prosecution case. In the instant case, at the time of registration of FIR a specific motive was mentioned. The motive was described to be the murder of Ashraf in which Yaseen (deceased) was initially convicted and later on .was acquitted on the basis of compromise. In support of motive, only Rasheed Ahmed (PW.11) appeared in the witness box. It divulges from his statement that he gave no detail of the occurrence. He never brought on record the relationship of Muhammad Ashraf (who was murdered by Yaseen deceased) with the appellant and his co- accused. During his cross-examination, he attributed the factum of enmity to Akbar (PO) only. Nothing is brought on record, which may suggest, even remotely that the appellant was having any personal enmity with the deceased. Conversely it came on record that Usman (appellant) is the real nephew of Muhammad Akbar (PO). In these circumstances, we are of the view that the prosecution failed to prove motive to the extent of the appellant.
18. The cumulative effect of the above-mentioned discussion is that on the basis of statements of Rasheed Ahmed (PW.11) and Muhammad Ashraf (PW.12), the guilt of the appellant is reasonably established. However, we have noticed certain extenuating circumstances which warrant the award of the lesser sentence. The first circumstance being the failure of the prosecution to prove the motive. It is settled principle of law that the failure to establish motive on part of the prosecution may react upon the sentence of death. Reliance in this respect case be placed to the case of Qaddan and others v. The State (2017 SCMR 148). Secondly, it is sufficiently reflected from the prosecution evidence that the way the occurrence took place, this is not possible for the witnesses to attribute or to pinpoint specific injuries to the appellant. In this respect, a reference can be made to the specific extract from the statement of Rasheed Ahmed (PW.11) which is as under-.
"The fires cannot be counted while emitting from the barrel of gun, the accused made fires inside the Hamam as well as aerial firing was also made outside the Hamam".
Such portion itself reflects that the attribution of injuries to the respective accused persons was probably an outcome of estimation. Even otherwise, the main accused Muhammad Akbar is still at large and the motive is mainly attributed to him. In such circumstances, question arises that out of the two sentences provided in section 302(b), P.P.C. which one warrants infliction in the instant case. The legislature has provided two sentences under section 302(b), P.P.C. For ready reference, it is necessary to reproduce clause (b) of section 302, P.P.C., which is as under:- "302. Punishment of qatl-i-amd.--Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be, (a)....
(b) Punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304, P.P.C. is not available:"
From the bare perusal of the foregoing provision, it is clear that a person found guilty under section 302(b), P.P.C. can either be punished with death or with imprisonment for life. It would be a misconception to say that the death is the normal penalty provided for the murder. The legislatures have not provided any guideline as to when a person is to be punished with death or in what circumstances he is to be sentenced to imprisonment for life under section 302(b), P.P.C. Hence, it can safely be inferred that the quantum of sentence depends upon the discretion of the courts. Needless to mention the discretion, is to be exercised in accordance with the facts and circumstances of the case. The IM Hon'ble Supreme Court of Pakistan has diluted upon this question in the case of Ghulam Mohy-ud-Din alias Haji Babu and others v. The State (2014 SCMR 1034), the Hon'ble Supreme Court of Pakistan held as under:- "If the intent of legislature was to take away the discretion of the court, then it would have omitted from S.302(b), P.P.C. the alternative sentence of life imprisonment".
In the same judgment, the Hon'ble Supreme Court further held that:- "Sentence of death and life imprisonment were alternative to one another, however, awarding one or the other sentence essentially depended upon the facts and circumstances of each case".
The Hon'ble Supreme Court of Pakistan has consistently held that the imprisonment for life is also a legal sentence in the case of section 302(b), P.P.C. Reference, in this regard, can be placed to the cases of Muhammad Riaz and another v. The State and another (2007 SCMR 1413) and Muhammad Sharif v. The State (PLD 2009 Supreme Court 709).
19. For what has been discussed above, we maintain the conviction of Usman alias Shanaan, the appellant under section 302(b), P.P.C., however, his death sentence is converted into that of imprisonment for life with the benefit of section 382-B, Cr.P.C. However, the appellant shall pay the compensation on the same terms and conditions as fixed by the learned trial court. With this modification in the quantum of sentence of Usman alias Shanaan, appellant, Criminal Appeal No.879 of 2012 is dismissed.
20. For the foregoing reasons, Criminal Revision No.649 of 2012 seeking enhancement of compensation awarded to Usman alias Shanaan, appellant is dismissed.
21. Resultantly Murder Reference No.244 :of 2012 is answered in the NEGATIVE and Death Sentence awarded to appellant, Usman alias Shanaan is NOT CONFIRMED.