Ch. Abdul Aziz, J. Appellant, namely , Khalid Mehmood, involved in case FIR No.05 dated 18.01.201 8 registered under sections 302, 324, 337-F(iii), 449 PPC at Police Station Dhumman, District Chakwal was tried by learned Additional Sessions Judge, Chakwal. The learned trial court vide judgment dated 26.11.2019 proceeded to convict and sentence the appellant in the following terms:- Under section 302 (b) PPC to suffer death sentence. He was also directed to pay fine of Rs.200,000/- under section 544-A, Cr .P.C. to the legal heirs of the deceased, in default whereof to further undergo six months S.I.
Under section 324 PPC to suffer 10 years imprisonment along with fine of Rs.50,000/-. In default of payment of fine, he was ordered to further undergo 3 months S.I.
Under section 337-F(iii) PPC to suffer 5 years imprisonment along with Daman of Rs.25,000/- to injured Imdad Hussain.
Under section 337-F(iii) PPC to suffer 5 years imprisonment along with Daman of Rs.25,000/- to injured Fouzia Yasmeen.
Under section 449 PPC to suffer 10 years R.I. along with fine of Rs.50,000/-, in default thereof to further undergo 3 months S.I.
All the aforementioned sentences were ordered to run concurrently .
Challenging his conviction and sentence Khalid Mehmood (appellant) filed Criminal Appeal No.951 of 2019 . The leaned trial court sent reference under section 374, Cr.P.C. which was numbered as Murder Reference No.97 of 2019 , for the confirmation or otherwise of death sentence awarded to Khalid Mehmood (convict). Both the matters are being disposed of through this single judgment.
2. Precisely stated the case of prosecution, as unveiled by complainant Imdad Hussain (PW.7) in his statement (Exh.PK) is to the effect that he is agriculturist and lumberdar of the village; that his brothers Muhammad Riaz and Zafar Iqbal are living in Dubai in connection with earning livelihood and their wives and children reside in a same house; that on 18.01.2018 at about 7:45 a.m. Khalid Mehmood duly armed with pistol entered into his house and went straight to kitchen where nephew Muhammad Haroon Sadiq aged 13/14 years and Mst. Fouzia Yasmeen were present; that on seeing this he also reached at the door of kitchen and within his sight Khalid Mehmood made a straight fire at Muhammad Haroon Sadiq which landed on front side of his chest; that Khalid Mahmood made second fire shot which hit Fouzia Yasmeen on her right arm; that the injured persons fell down; that Khalid Mehmood also made fire shot on Imdad Hussain which landed on his left should er; that Khalid Mehmood while standing in the courtyard raised lalkara that where was Muhammad Riaz he would not let him alive; that Muhammad Riaz was not present in the house and Khalid Mehmood left the house after brandishing his pistol; that on his raising hue and cry many people of the vicinity emerged there who took Imdad Hussain, Fouzia Yasmeen and Muhammad Haroon to RHC Duma; that Muhammad Haroon succumbed to the injuries en-route to hospital.
The motive behind the occurrence is previous litigation between the parties.
3. Badar Munir ASI (PW-12) after receipt of information of the occurrence reached at RHC Dhumman, Chakwal along with police officials where Imdad Hussain and Fauzia Yasmeen were prese nt in injured condition, whereas dead body of Haroon Sadiq was also lying in RHC Dhumman.
Thereafter investigation task was entrusted to Syed Ali Abbas Shah SI (PW.15) who reached at RHC Dhumman and inspected the dead body of Haroon Sadiq and prepared inquest report (Exh.PG). Thereafter he proceeded to the place of occurrence and collected 3 empties (P11/1-3) of pistol 30 bore and took into possession through recovery memo (Exh.PV). He prepared rough site plan of the place of occurrence (Exh.PW) and got prepared scaled site plan (Exh.PJ). On 24.01.2018 he arrested accused Khalid Mehmood. During interrogation accused Khalid Mehmood got recovered pistol 30 bore (P-1) alongwith three live bullets (P2/1-3) which were taken into possession through recovery memo (Exh.PM). He recorded statements of the witnesses under section 161 Cr.P.C.
After completion of investigation the report u/s 173 Cr .P.C. of the instant case was submitted before the court.
4. During trial, the prosecution produced as many as sixteen witnesses. Imdad Hussain and Fozia Yasmeen (PW.7 and 8) furnished ocular account, whereas, Syed Ali Abbas Shah SI (PW -15) investigated the case.
5. On 18.01.2018 Dr. Aamir Ayub (PW.3) conducted autopsy of Muhammad Haroon vide postmortem examination report Exh. PE and pictorial diagrams (Exh.PE/1).
On 18.01.2018 Dr. Sajid Nawaz (PW.4) medically examined Imdad Hussain and issued MLC (Exh.PH). On the same day Dr.Um-e-Aimen (PW.2) examined Fouzia Yasmin and issued MLC (Exh.PC). Dr.Zafar Abbas, Radiologist (PW.1) conducted X-Ray of Imdad Hussain and issued report Exh.P A.
6. After conclusion of prosecution eviden ce, appellant was examined under section 342 Cr.P.C, who refuted the allegations levelled against him and pleaded his innocence. The appellant neither appeared under section 340 (2)
Cr.P.C, nor produce any evidence in defence. On the conclusion of trial, the appellant was convicted and sentenced as afore-sated. Hence, the instant appeal and murder reference.
7. It is contended by learned counsel for the appellant that there is a delay of about 3 hours in registration of the F.I.R. which was not explained by the prosecution during trial; that in fact the occurrence took place in the dark hours of night by unknown persons and later in the morning, the appellant was implicated in the case on account of previous strained relations; that the eyewitnesses contradicted each other on all material aspects which rendered their depositions unworthy of any credence; that even the medical evidence is in conflict with the ocular account; that since the recovery of pistol was effected contrary to the provisions of section 103 Cr.P.C thus the positive report of P.F.S.A is also of no significance; that though multiple doubts, shortcomings and lacunas divulge from the prosecution evidence but its benefit was not given to the appellant. At last stage of arguments learned counsel also urged that since appellant had no enmity with the deceased thus motive remained unproved and in the foregoing circumstances sentence of death be reduced to imprisonment for life.
8. On the other hand, learned Law Officer assisted by learned counsel for the complainant came forward with the submission that the information of crime was imparted to police without any noticeable delay; that in such promptly registered F.I.R, appellant is the only person ascribed the role of causing injuries to the deceased and injured PWs; that ocular account was provided during trial by the injured witnesses who were also residents of the same house wherein the occurrence took place thus their acclaimed presence can by no stretch be denied; that the ocular account is in complete conformity with the medical evidence and this aspect is sufficient for upholding the conviction awarded to the appellant; that corroboration, if any, can be sought from the duly proved motive and positive report of P.F.S.A regarding the matching of pistol recovered from the appellant and crime empties secured from the spot and that since prosecution successfully proved its case against the appellant, hence, the conviction awarded to him needs no interference.
9. Arguments heard and record perused.
10. The roots of the case in hand are found in an incident having occurred on 18.01.2018 at about 7:45 a.m. in a vicinity known as Kohlian, Tehsil Chakwal situated at a distance of 15 miles from Police Station Dhuman. During this incident Khalid Mehmood (appellant) while armed with a pistol intruded into the house of complainant and committed the murder of a 13 years aged boy Muhammad Haroon. During this incident two others namely Imdad Hussain and Fozia Yasmeen (PW.7 and 8) also received injuries from the pistol shots fired by none other than Khalid (appellant). The information of crime was imparted to police without any uncalled for delay at about 10:30 a.m. through the statement (Exh.PK) of Imdad Hussain (PW.7) at RHC Dhumman. Such prompt imparting of information of crime to police, in the absence of some exceptional circumstances, excludes the possibility of tempering or fabrication, more importantly when the burden of crime is pointed towards a single accused.
11. During trial Imdad Hussain and Fozia Bibi (PW.7 & 8) appeared before the trial court to narrate the tale of homicide incident. So far as, Fozia Bibi (PW.8) is concerned she was the mother of slain boy Muhammad Haroon and was having abode within the four-walls of the house wherein the incident occurred. It gleans from the deposition of Fozia Bibi that she was house-hold lady thus in accordance with daily pursuit of life she should have been present at a place none other than her house. From the foregoing facts it can inexorably be held that the acclaimed presence of Fozia Bibi (PW.8) cannot legally be suspected, more importantly when the defence has not brought anything to the contrary on record. Even otherwise, the presence of a witness, who is an inmate of the house wherein crime scene of a murder case is situated, is to be accepted in the absence of some convincing material to the contrary brought on record by the defence. More importantly , when the witness is not having some axe to grind with the assailant. In support of our view we are guided by the observation expressed in case titled as Weram Vs. The State (1985 PCr .LJ 372) , which for reference sake is being mentioned hereunder:- "The three eyewitnesses as observed hereinabove were the inmates of the house, they were natural witnesses and as observed hereinabove, the defence has not been able to bring anything on record to indicate that these witnesses had any plausible motive to falsely implicate the appellant in substitution of the real culprit."
12. There is yet another factor which provides strength to the stance of Fozia Bibi (PW.8) about her presence at the spot and having seen the incident. In this regard, it is noticed that Fozia Bibi appeared in the witness box with the claim of having received firearm injuries during the same incident. In support of such claim, Fozia Bibi was also medically examined by Dr.Um-e-Aimen (PW.2) on the eventful day shortly after the incident. The Medical Officer found this witness to be in receipt of firearm injuries on right arm and back of her chest. No material or circumstance is brought on record by the defence from which it may insinuate that traumas on the body of Fozia Yasmeen (PW.8) were self-suf fered or fabricated. In the absence of some except ional circumstances put forth by the defence, the injuries on the person of a witness are generally considered stamp of his/her presence at the spot of murder incident. Reliance in this regard can be made to the cases reported as Jahangir etc. v. The State (NLR 1998 Criminal 687) and Azhar Nawaz v. The State (2017 SCMR 1877 ). The relevant excerpt from the latter case law is reproduced hereunder:- "Ocular account was furnished by three witnesses which included Mst.Shehnaz Bibi (PW.7) and Shazia Bibi (PW.8) having stamp of injuries on their person. Medical evidence is in line with the ocular account. Prosecution case against both the appellants is further corroborated by the recovery of blood stained knives at the instance of both the appellants coupled with positive reports of Chemical Examiner and Serologist. Therefore, we hold that the prosecution has been successful in provi ng its case against both the appellants beyond any shadow of doubt and there is no merit in these appeals"
13. In the above backdrop we have noticed that Fozia Yasmeen (PW.8) unwaveringly encountered the cross- examination of defence and provided confidence inspiring detail of the inciden t. She implicated none but the appellant for the injuries on her person as well as the trauma which led to the death of her son. We are mindful of the fact that she had an option to spread a wider net so as to implicate in the case at least one more person by attributing him either her own injury or of her son but she opted not to do so. This aspect reflects positively upon the intrinsic worth of her testimony persuading us to accept as correct what she deposed in the court. Even otherwise, not an iota of material is divulging from the record which may persuade us to draw an inference that Fozia Yasmeen (PW.8) was having some rancorous against the appellant for his false implication in the case and that too through the tool of substitution. Since the deposition of Fozia Yasmeen is befitting with the medical evidence hence, we are leaned to place explicit reliance upon it for adjudicating the guilt of appellant.
14. While pondering upon the deposition of Imdad Hussain (PW.7), it is observed by us that though he also claimed to be the inmate of the same house and was in receipt of injury during the incident but an anomaly is noticed from his deposition which makes him a suspect witness. The site-plan in this case was prepared by Muhammad Munir (PW.5) upon the pointation of witnesses , which was even acknowledged by them during trial. As per site plan (Exh.PJ/1-2) Imdad Hussain (PW.7) received firearm injury while he was at a distance of 9 feet from the appellant.
Imdad Hussain was medically attended by Dr.Sajid Nawaz Toor (PW.4) who noticed a bullet shaped metallic body in the left hemithorax which was simply muscle deep. Needless to mention here that had this bullet been fired from close proximity of 9 feet, its led should have at least penetrated into the thorax region of Imdad Hussain (PW.7).
The foregoing shortcoming becomes more glaring when seen in the context that Dr.Sajid Nawaz Toor (PW.5) stated in unequivocal terms that the bullet was fired from a long distance. An extrac t, in this regard, from the cross- examination of Dr . Sajid Nawaz Toor (PW .5) is being reproduced hereunder for reference sake:- "It seems that the bullet was fired from a long distance and while losing its veloc ity just touched the body of the injured PW ."
Derived from the aforementioned lacuna, we are constrained to hold that deposition of Imdad Hussain (PW.7) is a suspect evidence. It appears that he received firearm injury in the manner and background suppressed by him, thus in our view it will be against all norms of justice to accept his evidence for awarding conviction to the appellant.
Moreover , it goes without saying that credibility of a witness is not divisible in nature. On the touchstone of the same principle we are of the view that since Imdad Hussain (PW.7) is found by us to have deposed falsely about the manner and mode in which he receiv ed injury , thus it will not be in accordance with the dictates of justice to consider his testimony for awarding conviction to the appellant. The question of divisibility of credibility of a witness came under discussion before the Hon'ble Supreme Court of Pakistan in case titled as Ata Muhammad and another v . The State ( 1995 SCMR 599 ) and was dilated upon in following terms:- "The maxim "falsus in uno, falsus in omnibus", no doubt has no universal application and that grain is to be sifted from chaff but it may not be possible in the case where the very P.W. on whose testimony conviction of an accused is maintained has earlier been held not to be worthy of credence so far as other accused charged with effective participation in the same occurrence was concerned."
Even if we discard the evidence of Imdad Hussain (PW.7) still we have held for valid reasons that the evidence of Fozia Yasmeen (PW.8) is of unimpeachable nature and can legitimately be used for proving the guilt of appellant.
There is no legal impediment to base conviction on the deposition of a single witness who is found to be truthful and his/her acclaimed presence at the spot is proved beyond doubt. For raising superstructure of conviction, instead of quantity of evidence produced is to be looked upon the quality and intrinsic worth of evidence. If any reference in this regard is needed that can be made to the case reported as Muhammad Ismail v. The State (2017 SCMR 713 ), the relevant excerpt thereof is reproduced hereunder:- "At the same time, we are not supposed to make a departure from the principle of law, consistently laid down that testimony of a solitary witness, if rings true, found reliable and is also corroborated by some other evidence as well then, it can be made basis for conviction on capital charge."
In another case reported as Shamshad Ali Vs. The State (2011 SCMR 1394 ), the Hon'ble Supreme Court of Pakistan considered the deposition of a solitary eyewitness sufficient for awarding conviction in a case of a capital sentence with the following observation:- "The complainant had no motive to falsely implicate the appellant in the present case. Her statement is confidence inspiring and solitary statement coming out of the mouth of a natural witness, even if it is not corroborated by any independent piece of evidence, is sufficient to bring home the guilt of the accused."
On the same point further reference can be made to the cases reported as Muhammad Mansha v. The State (2001 SCMR 199), Muhammad Akram v. The State (2006 SCMR 1567 ) and Shakil and five others v. The State (PLD 2010 SC 47 ).
15. As is mentioned above, that the confidence inspiring evidence of a solitary witness is sufficient to pass a judgment of conviction in capital sentence case yet, as an abundant caution, we have decided to look for some independent corroboration of Fozia Yasmeen' s evidence. In search of some corroboration, we have come across the evidence of recovery of pistol (P-1) effected from the appellant and its subsequent matching by PFSA through its report Exh.PDD with three crime empty shells of .30 bore secured from the crime scene. The recovery of pistol (P1) was affected on 28.01.2018 in proceedings conducted under the supervision of Syed Ali Abbas Shah SI (PW.15). Ten days prior to the recovery of pistol (P1), the crime empties secured from the spot had reached PFSA thus there is not even a remote possibilit y of some tempering. The positive report of PFSA (Exh.PDD) is sufficient to provide strong corroboration to the case of prosecution and is helpful for us to place explicit reliance upon the evidence of Fozia Yasmeen (PW .8).
16. Though we have arrived at an irresistible conclusion that involvement of Khalid Mahmood (appellant) in the instant case is proved beyond shred of any ambiguity but we have noticed certain facts which warrants interference in the quantum of sentence awarded by learned trial court. In this regard, firstly it is noticed that canvassed motive was a dispute between appellant on one hand and Imdad Hussain (PW.7) along with his brother Riaz on other hand. It will not be out of place to menti on here that Muzaf far Iqbal was the father of deceased and husband of Fozia Yasmeen (PW.8). In the days of occurrence he was abroad due to exigencies of his employment. Fozia Yasmeen (PW.8) admitted during cross-examination that Khalid (appellant) was having no grudge against her or against her husband and even against her 13 years aged slain son. Thus inexorabl y, it can be held that prosecution failed to put forth any specific reason which prompted the appellant to take the life of Haroon (deceased). As a necessary consequence, it can be conc luded that prosecution failed to prove the immediate cause behind the incident. Secondly it is noticed that the appellant inflicted only a single injury to the deceased. So far as, Fozia Yasmeen (PW.8) is concerned, doctor observed two injuries over her person out of which one was a lacerated wound at her back and the other one was an entry wound over back of her right arm. Keeping in view the fact that lacerated wound on the back of Fozia Yasmeen made no ingress in her body thus there is every possibility that the same bullet was the source of trauma over her right arm. We have already held that firearm injury on the person of Imdad Hussain (PW .7) is surrounded amidst doubt thus the case in hand is not of some extreme brutality .
Before proceeding any further , we consider it appropriate to reproduce section 302(b) PPC which is as under:-
302. Punishment of qatl-i-amd: Whoever commits qatl-i-amd shall, subject to the provions of this chapter be:
(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 is not available; or"
A plain reading of 302(b) PPC unfolds that offence of Qatl-i-Amd is made punisha ble with death or imprisonment for life. It can well be gathered from section 302(b) PPC as it is structured and from the legislative intent of the legislature that imprisonment for life is an alternate sentence which is to be awarded by the court having regard to the facts and circumstances of the case. In other words, this is upto the court to decide that in which case a murderer is to be punished with death and in what kind of cases the imprisonment of life is to be awarded. In this regard, the view of the Apex Court is almost consistent that if the projected motive is not proved beyond scintilla of any doubt then the alternate sentence of imprisonment of life provided under section 302(b) PPC is to be awarded.
In this respect, reliance can also be placed to the cases of Hasil Khan v. The State (2012 SCMR 1936 ) and Zeeshan Afzal alias Shani v. The State and another (2013 SCMR 1602 ). Similarly , the infliction of single injury to the deceased is also considered a factor sufficient to have resort to the imprisonment of life for convicting an offender . Reference in this regard can be made to the case of Muhammad Aslam v . The State ( 2017 MLD 14 ).
17. For what has been discussed above, the appellant is awarded conviction and sentence in the following terms:-
(i) 302 (b) PPC. The death sentence awarded to the appellant by the trial court is converted into imprisonment for life.
(ii) The conviction awarded by the learned trial court under section 337-F(iii) and sentence thereunder for five years imprisonment with payment of Daman Rs.25000/- to the injured Imdad Hussain is set aside.
(iii) conviction under section 337-F(iii) PPC and sentence thereunder for 5 years imprisonment with payment of Daman Rs.25,000/- to the injured Fouzia Yasmeen is upheld.
(iv) Sentence and conviction under section 324 PPC is maintained.
(v) Sentence and conviction under section 449 PPC is maintained as awarded by the learned trial court.
Murder Reference 97 of 2019 is answered in the NEGA TIVE and death sentence awarded to Khalid Mehmood (convict) is NOT CONFIRMED .