ROZI KHAN BARRECH, J.---The appellant having been involved in case FIR No.01 of 2018 dated 14.01.201 8 registered under section 302, P.P.C. at Levies Thana Killa Saifullah District Killa Saifullah was tried by learned Additional Sessions Judge, Killa Saifullah, ("trial court") and or completion thereof by means of judgment dated 05.04.2019 (" impugned judgment "), convicted and sentenced the appellant in the following terms:-- "15...... Consequently the accused Muhammad Shafiq son of Fateh Khan, caste Alikhail, resident of Garra Ragha Alikhail, Killa. Saifullah is convicted under section 302(b), P.P.C. and is sentenced to death and to pay fine in the sum of Rs.2,00,000/- (Rupees Two Lacs Only) or to suffer six (06) months SI. He shall be hanged by neck till his death. The execution of death sentence shall be subjected to confirmation by the Hon'ble High Court. The convict is in judicial custody and be sent to jail to serve his sentence".
2. Aggrieved from the impugned judgment the appellant has assailed his conviction and sentence through Criminal Appeal bearing No. 77 of 2019, while the trial Court forwarded Murder Reference No.04 of 2019 for confirmation or otherwise of death sentenced inflicted upon the convict/appellant in terms of section 374, Cr.P.C. as both the cases are arising out of one and the same judgment of the trial Court, therefore same are being disposed of through this single judgment.
3. The prosecution story as disclosed in the complaint (Ex.P/l-A) recorded on the statement of PW-1 Babu son of Abdul Majeed (complainant) is that on 14.01.2018 at 9:00 a.m., his brother namely Gul Shah Khan along with his son Imran were proceeding towards National Highway , in the meanwhile, the accused Muhammad Shafiq son of Fateh Khan, caste Alikhail, made indiscri minating firing upon his brother namely Gul Shah Khan, due to which he received serious injuries.. The said Gul Shah Khan was taken to hospital, however , in the way he succumbed to the injuries. Hence crime report.
4. After, completion of usual investigation, the challan was prepared and submitted before the trial Court. The trial Court after observing the codal formalities as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant to which he did not plead guilty and claimed trial.
5. At the trial, the prosecution has produced nine (09) witnesses. Thereafter the appellant was examined under section 342, Cr.P.C., however , the appellant neither recorded his statement on oath as envisaged under section 340(2), Cr .P.C., nor produced any witness in his defense.
6. On conclusion of the trial and after hearing arguments, the trial Court convicted and sentenced the appellant as mentioned above in para No.1, whereafter the instant appeal has been filed and reference was sent by the trial Court.
7. Arguments advanced from both the sides have been heard. We have also minutely gone through the record available on file with the able assistance of learned counsel for the parties. It is an established principle of law that each criminal case has its own peculiar facts and circumstances and the same seldom coincide with each other on salient features. Admittedly it is an unfortunate incident in which brother of the complainant lost his life after sustaining firearm injuries, but to put the facts and circumstances in equilibrium with the touchstone of safe administration of justice, we have scrutinized the whole evidence available on record while weighing the same on judicial parlance. It has been observed by us that the prosecution has led evidence in the shape of ocular account, medical evidence, as well as investigation besides other attending circumstances.
8. As far as merits of the case are concerned, we have observed that the prosecutio n produced P.W-2 Kamal Shah, PW-6 Muhammad Imran, who are eye-witnesses of the occurrence. The case was registered on the complaint of PW-1 Babu on the basis of Fard-e-Bayan (Ex.P/1-A) who is not an eye-witness of the occurrence, however , according to his statement the deceased along with his son Imran (PW-6) went out from their house to Bazar , when they reached near National Highway the accused/appellant made firing upon his brother Gul Shah Khan due to which he received injuries I while taking him to hospital he succumbed to the injuries in the way. During cross- examination he replied to the question that soon after the occurrence he had come to his house and taken injured to hospital. In his report (Ex.P/1-A) he has specifically nominated the accused/ appellant for making a firing upon deceased. The FIR was lodged promptly without any delay . Name of the PW-6 (Muhammad Imran) is mentioned in the report (Ex.P/I-A) which was lodged romptly , that at the time of occurrence e was with the deceased.
9. The most important and star witness is PW-6 (Muhammad Imran) who is son of deceased. On the day of occurrence he was accompanying the deceased the accused/appellant made firing on him. PW6 further added that the accused run away towards road and in the meanwhile Kamal Shah (PW-2) also arrived and took the deceased to hospital in a vehicle. This witness narrated the whole story with regard to the occurrence has correctly stated the date, time, place and manner in which the occurrence has taken place. Likewise, PW-2 Kamal Shah is also eye- witness of the occurrence. He stated the same story which was narrated by PW-6. The above witnesses attributed the role of firing to the accused/appellant they gave consistent natural and straightforward ocular account of the occurrence. The defence subjected them to lengthy searching cross-examination, but their testimony remained unshaken and un-shattered. There was absolutely nothing in cross-examination to show that the accused/appellant was falsely implicated in the case. The presence of the said witnesses on the spot was also proved in the present case. As stated earlier the name of PW-6 (Muhammad Imran) is mentioned in the FIR which was lodged promptly without any delay . PW-6 (Muhammad Imran) also mentioned the name of PW-2 (Kamal Shah) in his statement before the court and shown his presence at the place of occurrence, while the investigation officer has recorded statement of the above witnesses soon after the occurrence.
10. The crime weapon i.e. pistol was also recovered from the accused/appellant at the time of his arrest from the house of his daughter . The investigation officer secured bullet empties from the place of occurrence, however , admittedly the recovered empties from the place of occurrence have not been sent to Firearm Expert to ascertain whether the same was fired from the pistol which has highly been effected from the possession of the accused/appellant, therefore, the recover y of pistol is no help to the prosecution case and the learned trial Court also discarded the same.
11. The testimony of the above eye- witnesses is duly corroborated by the recovery of bloodstained cloth of the deceased, the medical evidence produced by the prosecution also supported and corroborative testimony of the eye-witnesses and no contradiction at all could be pointed out by the defence.
12. So far as, the plea of the learned counsel for the appellant that only interested witnesses were produced by the prosecution and the case of prosecution is lacking independent corroboration is concerned, suffice to state here that mere relation of witnesses with the deceased is no ground to discard their testimonies, if their evidence is found entirely independent and truthful, therefore, their testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge. The evidence of related witnesses who are not found inimical and are confidence inspiring would hardly need any corroboration. It is also necessary to mention here that PW-1/complainant Babu and PW-2 Kamal Shah are brothers of deceased while PW-6 Muhammad Imran is son of the deceased. The parties were known to each other previously and the question of mistaken identity of the real culprits does not arise. It is hard to believe that both the witnesses and even the complainant would substitute the real culprits with the appellant Muhamm ad Shafiq who had committed murde r of deceased blood relations.
Reliance in this regard may be placed on the case of Allah Ditta v. The State PLD 2002 SC 52, wherein it was held as under:- "... ...It is also to be noted that admittedly prosecution, witnesses Muhammad Sadie and two others have no enmity of whatsoever nature against Allah Ditta and they have also no reason to falsely involve him in the commission of murder of their brother Muhammad Sabir . In addition to it, it is also not possible for them that they would allow real culprit to go scot-free and falsely involve another person for the commission of the offence. Even otherwise it is well settled by now that substitution of real culprit is a rare phenomena in our system of criminal justice".
13. After reappraisal of direct and circumstantial coupled with medical evidence after minute consideration of all the circumstances, we are of the considered view that the appellant is responsible for the murder of the deceased and has rightly been convicted by the trial Court. The trial Court while adjudicating the matter has imposed the death sentence upon the appellant, however , while going through the record available on file no motive has been set up by the prosecution. It may be observed that absence of the motive would not affect the prosecution case nor would cast any shadow of doubt on the prosecution case. Thus, in our considered opinion both the prosecution and defence have suppressed the actual facts, leading to the unfortunate incident. Possibility cannot be ruled out, that something must have happened between the parties, which led to the said incident, but has not been brought to surface, even otherwise, it does not appeal to a prudent mind, that without any strong motive the appellant would take such an extreme step of killing the deceased, when there is no enmity . Thus, in our considered opinion sentence of death is not compatible with the circumstances of the case, therefore, in our opinion, sentence of imprisonment for life will commensurate with the gravity of offence committed by the appellant. Guidelines in this regard is sought from the ratio dicidendi laid down by the Hon'ble Supreme Court in the case of Muhammad Riaz and another v . The State 2007 SCMR 1413 , wherein it was 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 sente nce 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".
Similar view has taken in the case of Muhammad Sharif v. The State PLD 2009 SCMR 709, wherein it was held 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 with the Court to inflict punishment with death or imprisonment for life as T azir having regard to the facts and circumstances of the case".
Reliance is also placed in the case of Fayyaz alias Fiazi v. The State 2017 SCMR 204 and Rehmat Khan v. The State 2017 SCMR 2034 .
In view of above while maintaining the conviction of the appellant under section 302(b), P.P.C. his sentence of death is altered to imprisonment for life. Benefit of section 382-B, Cr.P.C., is extended to the appellant. The impugned judgment of the trial Court is modified accordingly . With the above modification in the sentence of appellant 'the Criminal Appeal No.77 of 2019 is dismissed.
The Murder Reference No.04 of 2019 is answered in NEGA TIVE