Sayyed Mazahar Ali Akbar Naqvi, J.--Manzoor Hussain alias Babu son of Sher Muhammad, resident of Chak No. 40/3-R, Police Station Saddar , Okara, appellant, along with Allah Ditta and Saifullah (since acquitted), was involved case FIR No. 67/2008, dated 10.04.2008, offence under Sections 302/109, PPC, registered at Police Station Okara Cantt, and was tried by Mr. Qaiser Nazir Butt, learned Additional Sessions Judge, Okara. The learned trial Court seized with the matter in terms of judgment dated 30.08.2010 convicted the appellant under Section 302(b), PPC, and sentenced him. to death as Ta'zir. He was also directed to pay Rs. 2,00,000/- as compensation to legal heirs of deceased in terms of Section 544-A, Cr.P.C. to be recovered as arrears of land revenue and in case of default in payment thereof to undergo S.I. for six months.
2. Feeling aggrieved by the judgment of the learned trial Court, the appellant has assailed his conviction and sentence through filing CH. Appeal No. 2089/2010 while the learned trial Court forwarded Murder Reference No. 511/2010 for confirmation of death sentence inflicted upon the convict in terms of Section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial Court, therefore, these are being disposed of f through consolidated judgment.
3. Prosecution story as portrayed in the FIR (Ex.P A/1) lodged on the statement (Exh.P A) of Muhammad Aslam son of Mulla, caste Bhatti (PW-1) is that he is resident of Chak No. 50-3-R and has three sons and six daughters. On 10.04.2008 marriage ceremony of Muhammad Akram son of Sultan, caste Bhatti, resident of the same village, was being solemnized and the Barat had to proceed to the house of Muhammad Sadiq son of Pehlwan, caste Bhatti, resident of the same village. The complainant along with Muhammad Yar alias Bhatti son of the complainant aged 20 years and Ahmed Saeed were participating in the Barat. At about 4:00 p.m. when the Barat reached relatives, however , while leaving the place, Manzo or Hussain alias Babu had said that in the 'Barat' he will teach a lesson and would not spare him alive. Due to this grudge Manzoor Hussain alias Babu had committed the murder of Muhammad Yar, son of the complainant.
4. Muhammad Yasin Inspector (PW-12) along with other police officials was prese nt at Chowk of Chak No. 49/3-R on routine patrol duty where he received information regarding the occurrence and reached at the place of occurrence/V illage Chak No. 50/3-R. There the complainant appeared before him and made his statement, which was reduced into writing (Exh.P A) and the same was transmitted to Police Station through Abdul Ghafoor 329/C for registration of formal FIR. Thereafter the Investigating Officer inspected the dead body and prepared inquest report (Exh.PK). From the spot, the Investigatin g Officer secured blood-stained earth vide recovery memo. Exh.PC. He further prepared rough site-plan of the place of occurrence (Exh.PL,). Thereafter , the Investigating Officer drafted application for post-mortem examination (Exh.P .M.) and handed over the dead body to Muhammad Tahir 1572/C (PW-9) for escorting the same to mortuary . After the post-mortem examination, last worn clothes of the deceased qameez (P-3), bunyan (P-4) and shalwar (P-5) along with a sealed phial said to contain two pieces of bullets, were produced before the Investigating Officer, which he took into possession vide recovery memo. Exh.PE. The Investigating Officer made efforts to arrest the accused, however , he ' could not be arrested and thereafter the Investigating Officer was transferred. Subsequently the investigation was entrusted to Amanat Ali Inspector (PW- 14), who on 29.04.2008 visited the place of occurrence. The complainant produced copies of civil suits regarding civil litigation before the Investigating Officer, which he took into possession vide recovery memo. Exh.PB. The complainant also made supplementary statement regarding abetment of Saif Ullah and Allah Ditta and the Investigating Officer added offence under Section 109, PPC. As the appellant could not be arrested, therefore, the Investigating Of ficer obtained his proclamation (Exh.PG).
5. On the direction of the Investigating Officer and pointing out of the PWs, on 20.05.2008, Saeed Naser Hussain Mirza Draftsman (PW-10) took rough notes of the place of occurrence and thereafter on 24.05.2008 prepared scaled site-plan (Exh.PJ and Exh.PJ/1), which was made part of the file. The Investigating Officer also recorded the statements of the prosecution witnesses under Section 161, Cr.P.C. Subsequently on 06.06.2008, the Investigating Officer arrested the appellant and obtained his physical remand. During the course of interrogation, in pursuance of disclosure, the appellant led to the recovery of pistol .30-bore (P-1) along with two live bullets (P-2/1-2), which were taken into possession by the Investigating Officer vide recovery memo. Exh.PD. He also prepared rough site-plan of the place of recovery (Exh.PD/1). On reaching the Police Station, the Investigating Officer handed over the case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned.
6. During the course of investigation, having found the appellant guilty , the Investigating Officer prepared report under Section 173, Cr.P.C. while placing his name in Column No. 3, and sent the same to the Court of Sessions en-routed through the Illaqa Magistrate as provided under Section 190(2), Cr.P.C. The learned trial Court vide order dated 22.08.2008 formally charge sheeted the appellant to which he pleaded not guilty and claimed trial.
Prosecution in order to substantiate its case produced as many as fourteen (14) prosecution witnesses.
7. Occular account in this case consists of the statements of Muhammad Aslam complainant (PW-1), Ahmad Saeed (PW-2) and Umar Hayat (PW-3). On presentation of complaint, Nek Ahmad, Sub-Inspector (PW-8) had chalked out formal FIR while Saeed Naser Hussain Mirza Draftsman (PW-10) had prepared scaled site-plan of the place of occurrence. Investigation in this case was carried out by Muhammad Yasin Inspector (PW-12) and Amanat Ali Inspector (PW -14).
Dr. Muhammad Sagheer Almas (PW-7) had conducted post-mortem examination upon the dead body of deceased and found following injury on his person: "1. A lacerated wound 11/2 cm x 11/2 cm with blackening of margin and inverted margin on right side of chest, 5 cm above right nipple. Corresponding torn were present on Kamiz and Bunian."
After conducting the post-mortem examination, the doctor rendered the following opinion: "In my opinion the cause of death was due to haemorrhage, shock, caused by Injury No. 1 which was sufficient in ordinary nature of cause of death. Injury was ante mortem and caused by fire-arm weapon.
Probable time between injury and death was immediate and between death and post-mortem was within eight hours."
Statements of rest of the prosecution witnesses are formal in nature.
8. Vide his statement recorded on 06.06.2009, learned DDPP gave up Vengara, PW, being unnecessary . On 20.07.2010, learned DDPP tendered in evidence the report of Chemical Examiner (Exh.PN), report of Serologist (Exh.PQ), report of Forensic Science Laboratory (Exh.PP), attested copy of suit titled Allah Ditto Bhatti vs. Muhammad Aslam (Exh.PB/2), written statement to the said suit (Exh PB/3). Vide his separate statement recorded on 24.8.2010, learned DDPP after giving up Naseer Ahmed, PW, being unnecessary , closed the prosecution evidence.
9. The appellant was also examined under Section 342, Cr.P.C., wherein he opted to adduce evidence in his defence, however , he opted not to appear as his own witness in terms of Sectio n 340(2), Cr.P.C. in disproof of allegations levelled against him in the prosecution evidence. While replying to the question why this case against him and why the PWs deposed against him, the appellant made the following deposition: "All the PWs are related inter se with the deceased and they are inimical with me. None of the independent persons had supported the false version of the prosecution. The occurrence had not taken place in the manner as narrated by the prosecution. During the course of investigation independent eye-witness of the occurrence had joined the investigation before the Investigating Officer i.e. whose name was Muhammad Zaman son of Allah Ditta, Sanaullah son of Mohabbat, Allah Ditta son of Muhammad. The said eye-witnesses of the occurrence had stated that they were Barati and were present at the place of occurrence at the time of occurrence and they had witnessed the occurrence. According to the said witness that Muhammad Yar deceased and his friend Allah Ditta Loona were making firing with their pistol and suddenly the bullet in the pistol of Allah Ditta was blocked in the chamber of the pistol and Allah Ditta and Muhammad Yar deceased were standing in front of each other and they were deblocking and pull out the bullet from the pistol and bullet went out of the pistol and same hit to Muhammad Yar deceased on his chest. According to Muhammad eye-w itness of the occurrence that he took care of Muhammad Yar and due to that reason his clothes were stained with blood and he also produced his blood stained clothes before the Investigating Officer. Sanaullah son of Mohabbat and Allah Ditta son of Muhammad eye-witness of the occurrence also made their statement on the same stance and verified the version of Muham mad Zaman eye-witness of the occurrence. Other independent eye-witnesses of the occurrence also narrated the occurrence as narrated by above said of Muhammad Zaman, Sanau llah and Allah Ditta Son of Muhammad, eye-witnesses of the occurrence Prosecution had not cited the above said above said independent eye-witness of the occurrence in this case and shown the interested witnesses as eye-witness of the occurrence who were neithe r present at the alleged place of occurrence at the time of occurrence nor they had witnessed the occurrence. The prosecution version even was not supported by the bridegroom namely Muhammad Akram and his other brothers, father , despite the fact that they were present at the alleged place of occurrence, at the time of according to the prosecution but the said persons had not been cited as eye-witnesses of the occurrence. All the facts mentioned above made this fact crystal clear that the alleged prosecutio n version was not supported by the independent eye-witnesses of the occurrence. The independent eye-witnes ses however had falsified the alleged prosecution version during the course of investigation. I was neither present at the alleged place of occurrence nor I had any concern with the said occurrence. The alleged prosecution version was false, baseless and after though. I had divorced Mst. Bashiran Bibi daughter of the complainant, sister of Ahmed Saeed PW and wife of Umar Hayat PW in the year 2000 which nourished the grudge in the mind of the complainant party against me. The deceased died as a result of accidental fire shot in the Barat. The complainant and other PWs who were inimical with me by fabricating a false and after thought version having the assistance of Umar Hayat PW who is hardened and desperate criminal and involved in so many criminal cases and was a star witness having affiliation with the politician as well as the police official involved me in this false case by set up a false motive. Malik Amanat Ali the Investigating Officer of this case who is closely related with the said Umar Hayat and the said Investigating Officer while joining hands with the complainant falsely challaned me in this case only to please the complainant and his relative Umar Hayat PW being inimical with me without any solid evidence against me. I am innocent and being prosecute d on the trumped up charges by the said inimical and motivated prosecution witnesses. I am innocent in this case."
In defence the appellant produced Talaq-e-Salasa dated 6.4.2000 (Exh.DD) and proceedings thereupon dated 04.07.2000 (Exh.DE).
10. Learned trial Court after evaluating the evidence available on record found version of the prosecution proved beyond shadow of reasonable doubt against the appellant resulting into his conviction in the afore-stated terms.
11. Learned counsel for the appellant while opening his arguments submitted that the impugned judgment has been passed by the learned trial Court in a slipshod manner in derogation to the material available on record.
Learned counsel contended that the occurrence had taken place on 10.04.20a8 at 4:00 p.m. however , by stopping the rozenamcha, after due deliberations and consultations, by fabricating a false story , the appellant was brought in their case. Learned counsel contended that the occurrence is stated to have taken place in 'Barat' wherein besides the appellant many persons were participating, however , none of them was produced either during the course of investigation or during the course of trial. Added that no independent witness including bridegroom or any member of his family supported the prosecution version rather by twisting actual facts and circumstances, close relatives of the deceased were mentioned as prosecution witnesses, who made statements, being interested witnesses.
Further contended that the prosecution witnesses of ocular account, by improving their statements, introduced new motive during the course of trial and even there are material contradictions in their statements. It was argued that according to scaled site-plan (Exh.PJ and Exh.PJ/1), fire shot was made from a distance of 4 feet but while conducting post-mortem examination, Dr. Muhammad Sagheer Almas (PW-7) observed blackening near the injury , hence the medical evidence belies the ocular account. It was vigorously argued by learned counsel that from the spot, no crime empty was collected by the Investigating Officer and after his arrest, though pistol is stated to have been recovered, however , according to report of Forensic Science Laboratory (Exh.PP), fire pin of the pistol was removed. Learned counsel next contended that the motive set forth in the crime report could not be substantiated and even many respectable had appeared before the Investigating Officer (PW-12) in the defence of the appellant, however , the Investigating Officer deliberately did not investigate this aspect of the case. It was argued that on the same set of evidence Allah Dittah and Saifullah accused were acquitted of the charge by the learned trial Court, therefore, the learned trial Court was not justified in recording conviction against the appellant. Lastly , it was argued that as the appellant has been ascribed one fire shot and he did not repeat the same, therefore, in view of facts and circumstances floating on the-record, it is not a case of capital punishment and prayed for redaction in sentence of the appellant.
12. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant. It was argued that the appellant was duly named in the promptly lodged FIR with specific role in a daylight occurrence. Learned counsel for the complainant submitted that according to prosecution version the appellant is sole proprietor of the occurrence, who took life of an innocent young guy. Further submitted that while appearing in the witness box, all the prosecution witnesses of ocular account fully supporte d the prosecution version. They remaine d coherent on salient fectures of the prosecution version and despite lengthy cross-examination, nothing adverse to the prosecution version could be brought on record. It was argued that the medical evidence is in line with the ocular account with regard to stamp of injury , the weapon used, as well as time of occurrence. Learned counsel emphasized that after the occurrence, the appellant absconded and even proclamation was issued against him by the Court of competent jurisdiction. After his arrest, the appellant got recovered pistol .30-bore (P-1) along with two live bullets (P-2/1-2), which further connect him with the occurrence. It was argued that the report of Chemical Examiner (Exh.PN) and Serologist (Exh.PQ) with regard to blood-stained earth secured by the Investigating Officer from the place of occurrence further substantiate the prosecution case. Moreover , the appellant was also found guilty during the course of investigation as such his name was placed in Column No. 3 of the report prepared under Section 173, Cr.P.C. It was finally argued that the prosecution proved its case to the hilt through leading cogent/unbiased and confidence inspiring evidence, therefore, the learned trial Court was rightly justifie d in inflicting capital punishment upon him.
13. We have heard the arguments advanced from both sides and perused the record available on file with the able assistance of learned counsel for the appellant, learned counsel for the complainant, as well as, learned Deputy Prosecutor General representing the State.
14. As per prosecution version it was a daylight, occurrence, which had taken place on 10.04.2008 at 4:00 p.m. and on receipt of report regarding the occurrence, Muhammad Yasin Inspector (PW-12) proceeded to spot where the complainant made his statement, which was sent to Police Station, 31 KMs away from the place of occurrence, and the FIR was recorded at 5:30 p.m. Hence, when seen from every angle, it is a promptly lodged FIR. According to the contents of the crime report the appellant is sole proprietor of the occurrence, who made fire shot at chest of deceased, which resulted into his instantaneous death. In order to substantiate its case the prosecution has adduced evidence qua ocular account, medical evidence, recovery of crime weapon, investigation, as well as, motive.
Ocular account in this case consists of the Statements of Muhammad Saleem/complainant (PW-1), Ahmed Saeed (PW-2) and Umar Hayat (PW-3). Admittedly the occurrence had taken place in the Barat' of Muhammad Akram son of Sultan, resident of the same village and in our village life, maximum male mem bers of the family participate in such like festivals particularly when the Barat had to proceed in a house of the same village. Hence, presence of the complainant along with his sons Ahmed Saeed (PW-2) and Muhammad Yar (deceased) at the place of occurrence at the relevant time was quite natural. Moreover , Umar Hayat (PW-3), who was resident of the sane village, his presence over there being participant of the 'Barat' was fully established. While appearing in the witness box, in their respective statements, all the prosecution witnesses of the ocular account fully supported the prosecution version in exactitude with the contents of the crime report. All of them corroborated the prosecution stance by giving detailed pen-picture of the occurrence that it was the appellant, who after firing at the deceased, had fled away from the scene of occurrence. As mentioned earlier the occurrence having taken place in broad daylight and the parties previously known to each other , no question of mis-identification arises in this case.
Nevertheless the prosecution witnesses were subjected to lengthy cross-examination, however , defence failed to shatter their testimony in any manner whatsoever . From close scrutiny of the statements of the prosecution witnesses of ocular account, we have arrived at the conclusion that while responding to questions put to them in cross-examination, they remained consistent and it cannot be even assumed from any stretch of imagination that the prosecution witnesses had not witnessed the occurrence as claimed in the crime report.
During the course of arguments learned counsel for the appellant had pointed out that the prosecution witnesses are related to the deceased but at the same time it has been the consistent view of the superior Courts of the country that mere relationship of the prosecution witnesses with deceased would not discard their testimony if otherwise the same is reliable, trust worthy , appealing to reason and corroborated by independent circumstances, which is available in the case in hand. Respectful reliance in this regard, is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Ijaz Ahmad vs. The State (2009 SCMR 99) and Talib Hussein and others vs. The State and others ( 2009 SCMR 825 ].
15. According to contents of the scaled site-plan (Exh.PJ and Exh.PJ/1) prepared on the pointation of prosecution witnesses, the appellant had fired upon the deceased while standing at a distance of four feet. Hence, if fire shot is pointed out by holding pistol in hand it further narrows the distance. Postmortem examination in this case was conducted by Dr. Muhammad Sagheer Almas (PW-7), who while appearing in the witness box had stated that he had observed blackening around the margins of injury which fully corroborates the ocular account. Moreover , the duration' between death and post-mortem examination also coincides with the time of occurrence as mentioned in the crime report. In this backdrop it can safely be held that the medical evidence fully substantiates the prosecution case.
16. As per prosecution version after the occurrence the appellant had fled away and despite best efforts made by the Investigating Officer, he could not be arrested. Therefore, the Investigating Officer after adopting all codal/legal formalities obtained his warrants of arrest and proclamation from the Court of competent jurisdiction. Subsequently he was arrested on 06.06.2008 and in pursuance of disclosure made by him during the course of interrogation, on 10.06.2008, he led to the recovery of pistol (P-1) alone with two live bullets (P-2/1 -2). Moreover , the bloodstained earth secured by the Investigating Officer at the time of spot inspection, was also transmitted to the office of Chemical Examiner and Serologist and according to respective reports of the concerned quarters (Exh.PN and Exh.PP), it was stained with human blood. This fact straightway supports the prosecution case.
17. Nevertheless the appellant had advanced a very specific plea during the course of trial while making his statement under Section 342, Cr.P.C., that he was falsely involved in this case, however , the same could not be substantiated through any independent evidence. Even the appellant had not opted to plead his innocence by adducing any defence evidence or while himself making statement in terms of Section 340(2), Cr .P.C.
18. While scrutinizing the whole prosecuti on case we are of the considered view that the prosecution has advanced its case wherein even minute details have been brought forth. Though the prosecution witnesses are closely related but they had no to falsely implicate innocent person and it seems seldom to substitute the real culprit(s) without any rhyme or reason.
19. The nutshell of the above mentioned facts and circumstances is that the prosecution had proved its case against the appellant through leading cogent evidence in the shape of ocular account, which is straightforward, confidence inspiring and coming from the mouth of most natural witnesses. Medical evidence is in line with the ocular account with regard to locale/seat of injury at the person of the deceased ascribed to the appellant, as well as, time of occurrence. Reports of Chemical Examiner/Serologist coupled with the fact that during the course of investigation having been found guilty , name of the appellant was placed in Column No. 3 of the report prepared under Section 173, Cr.P.C., which prompted this Court to arrive at the conclusion that the prosecution had proved its case against the appellant beyond reasonable doubt.
20. As far as question of sentence in this particular case is concerned, that is of pivotal importance. During the course of arguments put forth by learned counsel for the appellant, learned counsel for the complainant, as well as, learned Deputy Prosecutor General, this Court has observed certain aspects, which if taken conjointly it create some dents in the prosecution version as such require re-evaluation of the quantum of sentence inflicted by the learned trial Court.
21. From the facts and circumstances, apparently the occurrence had taken place at the spur of the moment and held there been any serious animosity between the parties as alleged in the crime report, their assembling on two occasions on different dates i.e. on 09.04.2008 at 'Rasm-e-Hina' and on 10.04.2008 at 'Barat', would have been impossible. The presence of the complainant/deceased, as well as, the appellant at the place of occurrence, at the relevant time, clearly reflects that prior to this; there was nothing in between the parties. Moreover , as per contents of the crime report, the appellant has been ascribed fire shot at the chest of Muhammad Yar deceased, who did not repeat the same despite the fact that the pistol (P-1) recovered on the pointing out of the appellant was loaded with two live bullets. Fact also remains that the prosecution had introduced number of motives during the course of investigation, as well as, during the course of trial, however , this aspect of the prosecution version remained unproved and even the same was disbelieved during the course of trial. Fact also remains that during the course of trial out of three accused, two were acquitted by the learned trial Court on the same set of evidence. Another aspect of the prosecution case is that though the pistol (P-1) was affected in pursuance of disclosure of the appellant but the report of Forensic Science Laboratory reflects that its firing pin had been removed, hence that cannot be termed as incriminating evidence and this fact further brings the case of the appellant within the ambit of mitigation.
22. All these facts when put side by side create dents in the authenticity of the prosecution version to some extent persuading this Court to believe that the case of the appellant falls within the ambit of mitigation. In its ratio deadendi of august Supreme Court of Pakistan in the case of Israr Ali vs. The State (2007 SCMR 525), it was held that: "----Sentence, quantum of--Principle--Question of sentence demanded utmost care on the part of Court dealing with life and liberties of people--Accused persons are also entitled to extenuating benefit of doubt on the question of sentence."
23. Apart from this principle, which is based upon the principle of expectancy of life, this Court is also appraised of the fact that punishment provided under Section 302 (b), PPC, as Ta'zir relates to' death or imprisonment for life.
Both the sentences are available under this head but the circumstances are not spelled out in Section 302(b), PPC, in which either of the two punishments can be awarded. In its celebrated judgment of august Supreme Count of Pakistan in the case of Muhammad Sharif vs. The State (PLD 2009 Supreme Court 709) similar question was elaborated as under: "It has been seen and observed from the perusal of the various proceedings in relation to Section 302 of P.P.C. in particular its clause (b), that there is a choice and discretion left with the Court to inflict punishment "with death or imprisonment for life as tazir having regard to the facts and circumstances of the case."
Therefore, taking analogy fromxl this solitary judgment of august supreme Court of Pakistan, this. Court is persuaded to extend the benefit of doubt qua infliction of sentence to the appellan t and the same is considered as mitigating circumstance in his favour . Therefore, this Court is of the view that to meet the ends of justice for the safe dispensation of criminal justice, the sentence of death inflicted by the learned trial Court is not justified end the same is converted into imprisonment for life. Guidance in this regard is sought from the ratio decidendi laid down by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Diaz and another vs. The State and another (2007 SCMR 1413 ); wherein their Lordship in the august Supreme Court of Pakistan have held as under: "No doubt normal penalty for an act of commission of Qatl-i-Amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence because no hard and fast rule can be applied in each and every case."
24. For the foregoing reasons, Crl. Appeal No. 2089/2010 filed by Manzoor Hussain alias Babu/appellant is DISMISSED with modification in sentence from DEATH to IMPRISONMENT FOR LIFE under Section 302(b), PPC, as Ta'zir. However , the burden of compensation in terms of Section 544-A, Cr.P.C. as imposed by the learned trial Court and the effect in failure thereof, shall remain intact. Benefit of Section 382-B, Cr.P.C. is also extended in favour of the appellant.
25. Murder Reference No. 511/2010 forwarded by the learned trial Court in terms of Section 374, Cr.P.C. for confirmation of death sentence inflicted upon Manzoor Hussain alias Babu/convict foils, which is answered in NEGA TIVE. Death sentence is NOT CONFIRMED.