Raja Shahid Mehmood Abbasi, J.--Through this single judgment, we intend to decide Criminal Appeal No. 32 of 2018 filed by Muhammad Tahir Afzaal appellant against his conviction and sentence along with Murder Reference No. 80 of 2019 submitted by the learned trial Court for confirmation or otherwise of death sentence awarded to Muhammad Tahir Afzaal appellant being originated from judgment dated 20.12.2017 passed by learned Additional Sessions Judge, Taxila in case FIR No. 742 dated 19.12.2014 registered under Sections 302, 34, PPC, at Police Station Taxila, District Rawalpindi, whereby the appellant was convicted under Section 302(b), PPC and sentenced to death. He was also directed to pay a sum of Rs. 5,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of Muhammad Tufail decease d, recoverable as the arrears of land revenue, or in default thereof to undergo six months S.I. However , his co-accused Muhammad Afzaal was acquitted of the charge by extending the benefit of doubt in his favour .
2. Muhammad Pervaiz complainant through his statement (Ex.PB/2), which resulted into registration of FIR'
(Ex.PB), contended that on 19.12.2014 at about 03:00 p.m. his son Tahir Mehmood, Muhammad Irfan and Muhammad Tufail were with him, when they were taken to surprise by Muhammad Tahir Afzaal equipped with repeater .12 bore and his father Muhammad Afzaal, who came there from the side of their house on a car. After alighting from the car, Muhammad Afzaal raised lalkara that Muhammad Tufail should not escape alive upon which Muhammad Tahir Afzaal made a straight fire shot with his repeater .12 bore hitting Muhammad Tufail on forehead, which went through scalp and protruded out the brain matter , due to which Muham mad Tufail breathed his last at the spot. The complainant further maintained that 4/5 years prior to the present incident, Muhammad Tahir Afzaal had inflicted firearm injury on the person of Muhammad Tufail deceased and in that regard a criminal case was also registered and due to the grudge of registration of previous case, the accused committed the murder of Muhammad Tufail, hence, the crime report.
3. During investigation, not only Muhammad Tahir Afzaal appellant was found to be involved, but his father/co- accused Muhammad Afzaal (since acquitted) was also held responsible for raising lalkara, hence both were challaned to the Court. Formal charge against them was framed, which was denied and as such prosecution evidence was summoned and recorded. The prosecution had got examined as many as fifteen witnesses, the detail of which finds an elaborate mention in the judgment passed by the trial Court, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. After tendering the reports (Ex.PU and Ex.PV) of the Punjab Forensic Science Agency , the prosecution closed its evidence.
4. The accused were examined under Section 342, Cr.P.C. wherein they professed their innocence and refuted the allegations leveled against them. While responding to the question, "why this case against you and why the prosecution witnesses have deposed against you? Muhammad Tahir Afzaal appellant stated as under: "The deceased Muhammad Tufail who was a man of criminal antecedents was hardened and desperate criminal used to commit thefts and dacoitees had also committed the theft in my father's dera, enclosure of cattle situated in village Thatha Khalil, Taxila by secretly taking away fourteen buffalo about which an F.LR No. 64 dated 19.12.2013 was lodged at police station Taxila by my father co-accused Muhammad Afzaal against the deceased. The complainant who is cousin of the deceased his sister was married with him and his daughter was also wedded with son of the deceased namely Muhammad Usman got annoyed and had nourished grudge. It was out of that grudge that I and father have been falsely implic ated by the complainant in the instant case. Besides the registration of F.I.R. No, 64 of 19.12.2013 lodged by my father co accused against the deceased, other people have also lodged FIRs against the deceased about the commission of theft of their buffaloes. Besides the commission of theft dacoitees and property grabbing the deceased had also committed murders in the village and also at Kohinoor Rawalpindi and remained behind the bars for a considerable period. The private PWs are his close relatives, deposed falsely out of malice and are motivated. There depositions, however , are contradictory with each other on material points and are worth no consideration. Other peoples of the vicinity who at the time of the alleged occurrence were stated to have been present at the place of occurrence has not been produced by the prosecution, apprehended that of produced, they might have spoken the truth and would not have supported the false prosecution story ."
The other accused also adopted similar plea, but both the accused did not opt to record their statements under Section 340(2), Cr .P.C. or produce any defence evidence.
5. After conclusion of trial, the appellant was convicted and sentenced by learned trial Court as mentioned above, but co-accused Muhammad Afzaal was acquitted of the charge by giving him the benefit of doubt, hence, the appeal and connected murder reference.
6. Learned counsel for the appellant, in support of instant appeal, inter alia maintained that the evidence on record has not been appreciated in its true perspective, which resulted in serious miscarriage of justice; that the prosecution has miserably failed to substantiate the factum of accusation by producing worthy of credence evidence; that there are so many contradictions in the statements of prosecution witnesses, which went unnoticed by learned trial Court; that the appellant is absolutely innocent and has been falsely roped in this case due to previous grudge; that the alleged eye-witn esses are related inter-se as well as to the deceased and they are highly inimical towards the appellant, therefore, they cannot be termed as independent witnesses, but learned trial Court failed to appreciate this important aspect of the case while announcing a guilty verdict against the appellant; that the medical evidence is in direct conflict with the ocular version, which aspect of the matter has not been dilated upon properly; that the Investigating Officer was hand-in-gloves with the complainant party and he secretly completed the proceedings in respect of declaring the appellant as proclaimed offender just to strengthen the prosecution case, similarly the recovery of weapon was planted and the same did not render any support to the prosecution case; that the prosecution had also failed to prove the motive part of the occurrence against the appellant, which created serious doubt in the story of the prosecution; that on the same set of evidence, Muhammad Afzaal co-accused has already been acquitted of the charge by the learned trial Court, which made the prosecution story highly doubtful; that the prosecution has failed to prove its case beyond the shadow of doubt and the evidence so produced is not confidence-inspiring or worthy of reliance, hence, prayed that the instant appeal may be accepted and the appellant may be acquitted of the charge.
7. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant and inter alia maintained that the appellant is involved in a promptly lodged FIR with specific role of committing bruta l murder of an innocent person; that the parties, being the residents of same locality , were previously known to each other , which ruled out the possibility of mis identification of the appellant; that the presence of eye-witnesses at the place of occurrence is quite natural and their presence cannot be disputed; that prosecution case finds corroboration from medical evidence; that the appellant remained fugitive from law for a considerable period, which was only because of his guilty conscious; that the recovery of weapon of offence stand proved against the appellant which provided further corroboration to the prosecution's case against him; that while conducting cross-examination as well as recording statement under Section 342, Cr.P.C. the appellant has admitted the motive part of the occurrence; that the prosecution has proved its case beyond any shadow of reasonable doubt. Finally prayed that the appeal may be dismissed, death sentence may be confirmed and murder reference may be answered in af firmative.
8. After hearing the arguments of learned counsel for the parties, we have observed that according to complaint (Ex.PB/2) lodged by Muhammad Pervaiz complainant (PW13), the occurrence in this case had taken place on 19.12.2014 at about 03:00 p.m. which was reported to the police by the complainant on the same day at 04:30 p.m. whereas crime report (Ex.PB) was regis tered at 05:00 p.m. at Police Station Taxila, located at a distance of 13 kilometer . Keeping in view the above noted facts of the case, it cannot be said that the matter was reported to police with any deliberation or consultation rather the same was reported with sufficient promptitude. In crime report (Ex.PB), Muhammad Tahir Afzaal appellant is nominated with specific accusation that he made fire shot with repeater .12 bore which landed on the forehead of Muhammad Tufail deceased, went through and protruded out the brain matter and ultimately became the cause of his unnatural death. In order to prove the aforesaid accusation, the prosecution has mainly relied on the ocular account, medical evidence, absconsion, recovery of weapon of offence coupled with forensic report and motive. We propose to discuss these pieces of evidence in seriatim.
9. As noted above, the prosecution has examined two eye-witnesses of the tragedy namely Muhammad Irfan (PW12) and Muhammad Pervaiz (PW13) in order to prove its case against the appellant through direct evidence.
After careful scrutiny of their statements, we have observed that both Muhamma d Irfan (PW12) and Muhammad Pervaiz (PW13), with one voice, reiterated the facts as narrated in crime report (Ex.PB) and they both corroborated each other on all material aspects of the case. They sufficiently explained the mode and manner of occurrence and categorically stated before the trial Cour t that it was only the appellant, who had caused firearm injuries on the body of deceased, which proved fatal and left no room for his survival. They also gave sufficient reasons for their own presence at the place of occurrence and the same is even otherwise established from the questions put by the defence itself during cross-examination on them. We have further observed that there was no question of misidentification of the appellant as admittedly the parties were previously know n to each other . Furthermore, according to the site-plans (Ex.P A/1 and Ex.PT), there was no obstacle in viewing the appellant by the eye- witnesses at the time when he was inflicting injury to the deceased. The appellant was in clear view of the eye- witnesses and being known to them, no possibility existed that he could not have been identified. Even no suggestion was made to the prosecution witnesses about their inability to identify the appellant from the distance where he was standing. It is also worthw hile noticeable that both the eye-witnesses were closely related to the deceased as PW13 was cousin and he as well as PW12 were also his brothers-in-law , so it cannot be expected from such close relatives that they would substitute the appellant by letting off the actual culprit. Even otherwise, the defence has not brought on record anything which could persuade this Court to believe that the implication of appellant in this murder case was the result of any substitution. It is well-settled law that substitution of real culprits especially in a case where the eye-witnesses had lost their close kith and kin is rare phenomenon. Reliance is placed on the case of "Sheraz Khan v. The State".( 2010 SCMR 1772 ). Similarly the contention that the eye- witnesses were interested and inimical towards the appellant is not borne out from the record, because, the defence has not brought on record any previous ill-will, grudge, malice, enmity or ulterior motive of the eye- witnesses against the appellant to falsely implicate him in this case. Guidance has been sought from the case of "Muhammad Aslam v . The State" (2012 SCMR 593 ).
10. We are conscious that co-accused Muhammad Afzaal has been acquitted of the charge by learned trial Court on the basis of same set of evidence, but we are of the view that the role attributed to him was altogether different from the role played by Muhammad Tahir Afzaal appellant during the incident. Muhammad Afzaal co-accused, being real father of Muhammad Tahir Afzaal appellant, was given the benefit of doubt by the learned trial Court due to the reason that the role assigned to him was only that of raising lalkara and except that no overt act towards the deceased was attributed to him, whereas the appellant had inflicted fatal fire shot on the forehead of the deceased and caused his homicidal death, therefore, the acquittal of co-accused is not at all helpful to the appellant.
11. Adverting to the argument that medical evidence runs contrary to the prosecution version, it may be observed that medical evidence, is in complete harmony with the ocular testimony and no conflict could be pointed out to create dent in the prosecution case. It is the prosecution version that Muhammad Tahir Afzaal appellant, alone, had caused firearm injury to Muhammad Tufail deceased with his repeater .12 bore and said injury is duly reflected in his postmortem report (Ex.PN), according to which the injury attributed to the appellant was the cause of unnatural death of Muhammad Tufail deceased, thus, the ocular evidence about the kind of weapon used during the occurrence, time of incident and locale of injuries as narrated by the eye-witnesses fully tallied with medical evidence, which lent suf ficient support to the prosecution case against the appellant.
12. Apart from the steadfast, confidence inspiring and reliable eye-witness accoun t which is squarely supported by the medical evidence, there is another circumstance that the appellant remained fugitive from law for a period of more than two years and two months after the occurrence. In this regard, it is observed that the appellant did not bother to surrender himself and join the process of law immediately after the incident despite that he along with his real father was well-nominated in the crime report. He preferred to abscond and was ultimately arrested through hectic efforts of police on 28.02.2017. It is important to observe here that Muhammad Afzaal co-accused (since acquitted) who was father of the appellant, had already been arrested in connection with this case on 28.03.2016.
In such circumstances, it does not appeal to mind that the appellant was not aware about his nomination in the present case on the murder charge of deceased Muhammad Tufail. Moreover , a question regarding his absconsion was specifically put to the appellant during his statement under Section 342, Cr.P.C. but he did not advance any explanation for not surrendering himself before the law if he had not committed the occurrence. We may observe here that long and noticeable absconsion of the appellant would go as long way to corroborate and strengthen the truth of the prosecution version and indicate the guilt of the appellant. Reliance in this regard can be placed on the case of "Haroon Rasheed and 6 others v . State and another" (PLJ 2006 SC 137 ).
13. As far as the recovery of repeater 12 bore (PI2) at the instance of the appellant vide memo. (Ex.PR) is concerned, we are of the view that the same is inconsequential to the prosecution case because of the reason that the report (Ex.PV) of the Punjab Forensic Science Agency is only to the extent of its being in working condition.
However , we are of the view that after the absconsion of appellant, chance was remote that he would get recover the weapon of of fence which he had used during the incident.
14. So far as motive part of the occurrence is concerned, we have observed that while lodging crime report (Ex.PB), Muhammad Pervaiz complainant (PW13) disclosed a specific motive, according to which the appellant had inflicted firearm injury on the person of Muhammad Tufail deceased 4/5 years prior to the present incident and in that regard a criminal case was also registered and due to the grudge of registration of previous case, the accused committed the murder of Muhammad Tufail deceased. We have observed that Muhammad Pervaiz complainant (PW13) though reiterated the motive part of the case in a manner as mentioned in the crime report (Ex.PB), but he could not get support from any other source with regard to the asserted motive as neither any documentary proof regarding registration of previous case has been brought on the file nor the other eye-witness who was also close relative of the deceased has uttered anything in this regard. Even Muhammad Pervaiz complainant (PW13), according to whom the incident of motive had taken place 4/5 years prior to the present incident, categorically stated during cross-examination that the case regarding motive part was related to 2005, which ended in a valid compromise during the same year. Conversely , the defence had adopted the plea that the deceased had taken away fourteen buffaloes of appellant's father regarding which a criminal case was also registered against the deceased, which, according to the complainant, was cancelled subsequently . In the backdrop of above circumstances, we are of the view that the prosecution could not prove the motive part of the occurrence and the question as to what was the actual bone of contention between the deceased and the appellant, which prompted the latter to take such extreme steps, remained shrouded in mystery .
15. After considering all cons and pros of the prosecution's case, it may be safely concluded that if we exclude the recovery of weapon of offence as well as the motive from consideration, even then the prosecution has successfully proved its case against Muhammad Tahir Afzaal appellant and as such his conviction on the charge of committing intentional murder of Muhammad Tufail deceased is neither unfounded nor does it suffer from any legal infirmity . As regards the quantum of sentence, we have noted certain mitigating circumstances in favour of the appellant due to which we are not satisfied with the death sentence awarded by learned trial Court to the appellant.
Firstly , the prosecution remained fail to prove the motive alleged against the appellant and what actually proceeded between the parties just before the occurrence remained shrouded in mystery . Secondly , the appellant had made only one fire shot at the deceased and despite having ample opportunity he had not repeated the same. In such like circumstances the Hon'ble Supreme Court of Pakistan has held that non-repet ition of injury by the assailant on the person of deceased demonstrate an implied impression that he has not taken unfair advantage of his position as an armed person at the spot rather despite of having ample opportunity , he has refrained himself from doing so and this circumstance can also be taken as a mitigating circumstance to avoid extreme penalty of death to the assailant. Reliance is placed on the cases of Muhammad Yaseen v. The State" (2011 SCMR 905) and "Muhammad Anwar v. The State" (2017 SCMR 630). Thirdly , during the same trial, co-accused Muhammad Afzaal, who had allegedly raised lalkara, was acquitted of the charge by the trial Court. Therefore in our view, the alternate sentence of imprisonment for life to Muhammad Tahir Afzaal appellant, which is also a legal sentence, shall meet the ends of justice. We have also fortified our view qua the quantum of sentence by the case reported as "Ghnlam Mohy-ud-Din alias Haji Babo and others v. The State" (2014 SCMR 1034 ) and "Sharafat Ali Khan v. The State" (2010 SCMR 1205 ).
16. For the foregoing reasons, the conviction of Muhammad Tahir Afzaal appellant under Section 302(b), PPC is maintained, however , his sentence is altered from death to imprisonment for life. The amount of compensation imposed upon the appellant, the mode of its realization and the imprisonment in default thereof is also maintained.
However , benefit of Section 382-B, Cr.P.C. is extended in his favour . Consequently with the above modification in the quantum of sentence of appellant, Criminal Appeal No. 32 of 2018 is hereby dismissed.
17. Murder Reference is answered in negative and death sentence of Muhammad Tahir Afzaal (convict) is not confirmed .