Shehram Sarwar Ch. J.--Amir (appellant) along with his co-accused namely Adil, Adnan, Shaukat Ali, Abdus Sattar , Abdul Razzaq and Mst. Farkhanda Bibi alias Nanhi was tried by the learned Addl. Sessions Judge, Pasrur District Sialkot in a private complaint instituted under Sections 302, 324, 460, 337-A(ii), 337-F(ii), 337-L(2), 109, 148 and 149 PPC by Muhammad Ishaque, complainant being dissatisfied with the investigation conducted by the police in case FIR No. 229 dated 12.07.2 014, offence under Sections 302, 324, 452, 337- F(i), 337-F(ii), 337-L(2), 109, 148 and 149, PPC, registered at Police Station City Pasrur District Sialkot for the murder of Muhammad Bilal (deceased) son of complainant. Vide judgment dated 26.04.2016 passed by the learned Addl. Sessions Judge, Pasrur , the appellant has been convicted under Section 302(b), PPC and sentenced to death, with a further direction to pay Rs. 1,00,000/- (rupees one lakh only) as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased and in default whereof to further undergo simple imprisonment for six months. The appellant has also been convicted under Section 452, PPC and sentenced to simple imprisonment for one year with fine of Rs. 30,000/- (rupees thirty thousand only) and in default thereof to further undergo simple imprisonment for two months. Through the same judgment, Adil, Adrian, Shaukat Ali, Abdus Sattar , Abdul Razzaq and Mst. Farkhanda Bibi alias Nanhi, co-accused of the appellant were acquitted of the charge and no Crl. P.S.L.A. was filed either by the State or the complainant, as conceded by learned District Public Prosecutor and learned counsel for the complainant. Assailing the above convictions and sentences, the appellant has filed the appeal in hand whereas the learned trial Court has sent Murder Reference No. 254 of 2016 for confirmatio n or otherwise of the appellant's sentence of death, as required under Section 374 of the Code of Criminal Proce dure. Since both these matters have arisen out of the same judgment, therefore, the same are being decided together through this single judgment.
2. Prosecution story , as set out in the FIR (Ex.PF) registered on the written application (Ex.P A) of Muhammad Ishaque, complainant (PW.1) is that he was resident of Mohallah Hanif Pura, Pasrur City and a labourer . On 12.07.2014 at around Eisha wela, the complainant along with his sons Muhammad Bilal, Adnan, Ishfaq, Ramzan and other family members was present in his house. All of a sudden, Amir (appellant) armed with dagger entered the Courtyard of complainant's house while scaling over the wall and opened the door of house from inside, whereupon Adil, Adnan, Abdul Razzaq and an unknown co-accused all armed with chhurris, in consultation with each other entered the house while raising lalkara. The bulb was lit in the Courtyard. Abdus Sattar and three unknown co-accused standing outside in the street were also raising lalkara to kill the inmates of the house. Within the view of complainant, Amir inflicted dagger blow which hit Muhammad Bilal below his umbilicus. Adnan also gave chhurri blow to Ashfaq which landed on the hack of his left biceps Razzaq caused chhurri blow which landed on left side of chest of Ishfaq. Shaukat inflicted chhurri blow hitting Ramzan on back of his left shoulder . Adil gave chhurri blow on the head of Adnan. On hue and cry of complainant party , the accused fled away from the spot, Motive behind the occurrence as alleged in the FIR was that two days prior to the occurrence, a minor quarrel took place amongst the children and on the day of incident, daughter of Shaukat namely Mst,Nanhi Bibi wife of Razzaq abused the women folk of complainant, Muhammad Bilal and other injured were being shifted to hospital but Muhammad Bilal succumbed to the injury on the way. Subsequently , the complainant moved an application (Ex.PB) to the SHO and implicated Mat, Farkhanda Bibi alias Nanhi as accused of abetment.
3, Being dissatisfied with the investigation conducted by the police, Muhammad Ishaque, complainant instituted a private complaint titled as "`Muhammad Ishaque vs. Amir etc." , on the same facts as narrated in the FIR.
4. After recording of cursory evidence in the present case, the appellant and his co-accused namely Adil, Adnan, Shaukat Ali, Abdus Sattar , Abdul Razzaq and Mst. Farkhanda Bibi alias Nanhi were summoned by the learned trial Court to face the trial. Copies of relevant documents were provided to appellant and his co-accused, as required under Section 265-C, Code of Criminal Procedure and formal charge under Sections 302, 324, 337-A(i), 452, 109, 148 and 149, PPC was framed against them on 01.07.2015, to which they pleade d not guilty and claimed trial. In order to prove its case, prosecution examined as many as fourteen witnesses whereas two were examined as Court witnesses. Statements of the appellant and his co-accused were recorded under Section 342 of the Code of Criminaj Procedure, wherein they refuted all the prosecution allegations levelled against them and professed their innocence. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Amir (appellant) stated as under; "The prosecution story narrated by the complainant and the PWs is incorrect and concocted. In fact, on the day of occurrence, the complainant of this case is not present in his house and the complainant's sons Bilal, Ashfaq, Ramzan and Adnan quarreled with each other and one of them inflicted chhurri blow on Bilal who succumbed to the injuries. The other injuries on the parts of alleged injured PWs are caused by the complainant's son by each other . The accused did not injure any of them. When the complainant came in the house, all the alleged injured PWs concocted a false story of aggression by the part of the accused and narrated the false story to their father (complainant) just to save themselves, The complainant without inquiring the matter falsely lodged the FIR against us. W e are innocent."
The appellant neither opted to appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2) of the Code of Criminal Procedure nor did he produce any defence evidence, However , after conclusion of trial, the learned trial Court convicted and sentenced the appellant and acquitted his co-accused, as detailed above. Hence this appeal and murder reference,
5. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this cap; that the matter was reported to the police after due deliberation and consultation; that the story of prosecution is highly improbable and presence of witnesses of ocular account namely . Muhammad Ishaque, complainant (PW.1), Adnan (PW.2), Muhammad Ramzan (PW.3) and Muhammad Ishfaq (PW,4) at the place of occurrence at relevant time is of doubtful nature; that a vague motive has been set out in the FIR, private complaint as well as brought before the learned trial Court, which has not been proved by the prosecution; that the ocular account is not in line with the medical evidence; that alleged recovery of dagger (P5) at the instance of appellant is inconsequential because as there were no chances of presence of blood on the dagger after the expiry of more than two and a half months; that the version of the appellant is more probable, convincing and even gets full support from prosecution's own case ; that viewing from all angles, the prosecution case is doubtful in nature and the appellant is entitled to the benefit of doubt not as a matter of grace but as of right.
6. On the other hand, learned District Public Prosecutor for the State assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that the matter was reported to the police with promptitude; that Muhammad Ishaque, complainant (PW.1), Adnan (PW.2), Muhammad Ramzan (PW.3) and Muhammad Ishfaq (PW.4) have no enmity with the appellant to falsely implicate him in this case; that the eye- witnesses have reasonably explained their presence on the spot at relevant time which is quite natural and probable; that the prosecution has also proved motive part of the occurrence; that the medical evidence is in line with the ocular account; that the prosecution has proved its case to the hilt against the appellant, which is further corroborated by the recovery of dagger (P5) at the instance of the appellant and positive report of Punjab Forensic Science Agency (Ex.PP); that the version of the appellant is nothing but an aftertho ught, therefore, the appeal filed by the appellant merits dismissal.
7. We have heard arguments of learned counsel for the parties as well as learned District Public Prosecutor for the State to their entire satisfection, given our serious consideration to their respective submissions and also perused the record.
8, This unfortunate incident wherein Muha mmad Bilal (deceased) son of complaina nt lost his life and other sons of complainant allegedly sustained injuries (though not proved), as per prosecution, took place on 12.07.2014 at about Eisha prayer in the area of UC/120 , Mohallah Hanif Pura situated within the territorial limits of Police Station City Pasrur District Sialkot. The distance between the place of occurrence and the police station is about one furlong. The matter was reported to the police through written application of Muhammad Ishaque, complainant (PW.1) on the same night at 10.30 p.m. and formal FIR (Ex.PF) was got registered. Postmortem examination of the dead body of deceased was conducted on 13.07.2014 at 4.00 a.m. We have noted that it was case of the complainant in the FIR, private complaint and before the learned trial Court that after the incident, Muhammad Bilal (deceased) and others (PW.2 to 4) were being shifted to hospital but Muhammad Bilal succumbed to the injury on the way. Therefore, considering overall circumstances of the case, it can safely be concluded that the delay , if any, in reporting the crime to the police was not conscious or deliberate as in such like cases the first and foremost priority of the kith and kin of the injured is to rush for medical treatment instead of reporting the matter to the police.
9. The ocular account has been furnished by Muhammad Ishaque, complainant (PW.1), Adnan (PW.2), Muhammad Ramzan (PW.3) and Muhammad Ishfaq (PW.4). All the eye-witnesses have reason ably explained their presence on the spot at relevant time. The occurrence took place in the house of complainant, which has not been disputed by the defence. All the witnesses of ocular account (PW.1 to PW.4) are residents of the same house, therefore, their presence on the spot at relevant time cannot be considered unnatural or improbable. Though the eye-witnesses are closely related to each other and to the deceased being his father rand broth ers but merely because of their close inter-se relationship or with the deceased, their evidence cannot be discarded. In the FIR, private complaint and before the learned trial Court, it was case of the prosecution that the appel lant was the sole perpetrator of crime so far as the injury on the person of deceased is concerned. The eye-witnesses were subjected to lengthy cross examination but they remained consistent on material aspects of the case and nothing favourable to the defence could be extracted. The witnesses of ocular account have no enmity with the appellant to falsely implicate him in this case by letting off the real culprits. Even otherwise, substitution in such like cases is a rare phenomenon. Therefore, we hold that the witnesses of ocular account namely Muhammad Ishaque, complainant (PW.1), Adnan (PW.2), Muhammad Ramzan (PW.3) and Muhammad Ishfaq (PW.4) were present on the spot and had witnessed the occurrence.
10. Motive behind the occurrence as set out in the FIR, private complaint and brought before the learned trial Court was to the effect that two days prior to the occurrence, a minor quarrel took place amongst the children of both sides and on the day of occurrence about, Mst, Farkhanda Bibi alias Nanhi wife of Abdul Razzaq abused the women folk of complainant side. We have observed that no detail of motive quarrel such as time, place and in whose presence it happened, was brought on record. Even the motive quarrel was not reported to the police. The material witnesses in support of the motive quarrel were the children and women folk of complainant party but they were not associated during the course of investigation. Furthermore, no indepe ndent witness qua motive was brought in the witness box during trial. In this view of the matter , we hold that the prosecution has not been able to substantiate the motive part of the occurrence.
11. In the FIR as well as before the learne d trial Court it was case of the prosecution in respect of the appellant that he inflicted dagger blow to Muhammad Bilal (deceased) which hit under his naval. Dr. Muhammad Junaid who conducted postmortem examinations of the dead body of deceased appeared before the learned trial Court as PW.
13 and furnished medical examination. Postmortem examination t report prepared by the medical officer showing the said injury is available on record as Ex.PJ to PJ/2. Therefore, in our view, the ocular account to the extent of the appellant is fully supported, by medical evidence.
12. So far as the alleged recovery of dagger (P5) at the instance of the appellant which was taken into possession vide recovery memo. (Ex.PI) is concerned, the same is inconsequential for the reason that the occurrence took place on 12.07.2014, the dagger (P5) was got recovered by the appellant on 24.08.2014, which was received in the office of Punjab Forensic Science Agency on 02.10.2014 i.e. after more than two and a half months of the occurrence, therefore, it was unlikely that the blood on the dagger would not disintegrate during the above mentioned period. Reliance is placed on the case law reported, as "Muhammad Jamil vs. Muhammad Akram and others" (2009 SCMR 120 ).
13. Now we take up the version of the appellant disclosed by him in his statement recorded under Section 342, Code of Criminal Procedure, reproduced in para 4 above. The appellant neither opted to appear as his own witness in disproof of the prosecution allegations as provided under Section 340(2), Code of Criminal Procedure nor he produced any evidence in his defence. Considering the above circumstances, it is concluded that the appellant has failed to prove his version and learned trial Court has rightly discarded the same with suf ficient reasons.
14. From the above circumstances, we are of the considered view that even if the evidence of motive and recovery of dagger (P5) at the instance of the appellant is excluded from consideration, there is sufficient incriminating evidence on record against him in the form of straightforward and confidence inspiring ocular account furnished by Muhammad Ishaque, complainant (PW.1), Adnan (PW.2), Muhammad Ramzan (PW.3) and Muhammad Ishfaq (PW.4), fully supported by the medical evidence i.e. statement of Dr. Muhammad Junaid (PW.13) and postmortem examination report (Exs. PJ to PJ/2) to maintain his conviction under Sections 302(b) and 452, PPC, which is accordingly maintained. However , it is not a case of capital punishment because of the reasons: (i) motive set up by the prosecution has not been believed by us; (ii) the alleged recovery of dagger (P5) at the instance of the appellant has not been proved; and (iii) the appellant caused only one injury to the deceased and there is no allegation of repetition of injury against him.
15. All the above facts of the case lead us to the conclusion that there are extenuating circumstances, on the basis of which the appellant could not be made liable to the maximum punishment provided under Section 302(b), PPC, rather the ends of justice would be met, if his death sentence is converted into imprisonment for life. In this regard, we respectfully refer the case titled as "Mir Muhammad alias Miro vs. The State" (2009 SCMR 1188) wherein the Hon'ble Supreme Court of Pakistan has held as under: "9. It will not be out of place to emphasi ze that in criminal cases, 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." Further reliance is placed on the case reported as "Zafar Iqbal and others v. The State" (2014 SCMR 1227 ), in which the Hon'ble Supreme Court of Pakistan has observed at pages 1235 and 1238 as under: "15. The question of awarding of sentence is required by law to be adverted to in every criminal case and it is the duty of the Court to always consider this aspect of the matter while awarding sentence. In the present case trial Court has awarded death sentence to the appellants, which has been maintained by the High Court and the murder reference has been answered in positive . On examination of the record certain facts have come to light, which needs to be given serious consideration and they probably have in them material on the basis of which the case of mitigation in sentences could be found. Although in the ocular account it is alleged that appellant Iftikhar has fired with a rifle at Jaffar Hussain deceased on his head and he has also fired at Abdaal Hussain deceased on the left side of his chest but the prosecution has not been able to secure or recover any fire-arm from this appellant. At the same time appellant Asghar Iqbal is alleged to have fired with his rifle at Abdaal Hussain deceased on his left ear with his rifle. Although .7 mm rifle was recovered on the pointation of this appellant but no recovery of empty of this rifle was made from the place of incident and there is no report of Forensic Science Laboratory (FSL) of connecting the recovered .7 mm rifle with the two crime empties recovered from the place of incident. It is also noted that the real motive as propounded in the prosecution version was against deceased Jaffar Hussain in that he was the one, who has beaten appellant Iftikhar . The motive being against deceased Jaffar Hussain, it is not understandable as to why the appellants after having murdered Jaffar Hussain will proceed covering distance and murder Jaffar Hussain's two sons, namely , Abd. Hussai n and Abrar Hussain. This will go to show that something very obnoxious may have happened at the place of occu rrence of which neither the prosecution has given any evidence nor the same has come out from the side of defence. Thus the immediate circumstance or cause for the happening of the events, which culminated into the murde r of three persons namely , Jaffar Hussain, Abdaal Hussain and Abrar Hussain are altogether shrouded in mystery ."
"20. All the above factors in the light of the law laid down by this Court as discussed above lead us to the conclusion that there are sufficient extenuating circumstances, on the basis of which the appellants could not be made liable to the maximum punishment provided under Section 302(b), PPC, rather the ends of justice would be met, if their death sentence is converted into imprisonment for life. While maintaining the conviction of the appellants and modifying the sentence from death to life imprisonment and maintaining other sentences with benefit of Section 382-B, Cr .P.C, this appeal is partially allowed in the above terms."
Therefore, while maintaining the conviction under Section 302(b), PPC, we alter the sentence of Amir (appellant) from death to imprisonment for life. The amount of compensation and the punishment in default whereof, as ordered by the learned trial Court, are maintained. The conviction and sentence of the appellant under Section 452, PPC are also maintained. Both the sentences shall run concurrently . Benefit of Section 382-B, Code of Criminal Procedure is extended to the appellant. The appeal in hand stands dismissed with the above modification in the quantum of sentence.
16. Murder Reference No. 254 of 2016 is answered in the NEGA TIVE and the sentence of death awarded to Amir (convict) is NOT CONFIRMED.