MUHAMMAD WAHEED KHAN, J.---This judgment shall decide Criminal Appeal No.25 of 2018 filed by appellant (against his conviction and sentence) and M.R. No.79 of 2019 forwarded by the learned trial Court for confirmation of death sentence awarded to the appellant or otherwise. As both the matters have arisen out of the same judgment dated 19.12.2017 passed by the learned Additional Sessions Judge, Rawalpindi in case FIR No.151 dated 13.03.2017 registered under section 302, P.P.C. at Police Station Pir Wadahi, Rawalpindi, whereby the appellant was convicted and sentenced as under;- Under section 302(b), P.P.C. awarded death sentence as Ta'zir. He was also directed to pay compensation of Rs.2,00,000/- under section 544-A, Cr.P.C. to the legal heirs of deceased Khurshid, which was ordered to be recovered as arrears of land revenue and in default whereof, to undergo six months' simple imprisonment.
2. Complainant Sh. Naveed Ahmad (PW-6), while lodging the above said FIR narrated the prosecution story as under;- "That he along with Sadaqat Nadeem/PW -9 at 4.50 a.m. in connection with some work reached in front of New Khyber Hotel, Pir Wadahi. Meanwhile, his elder brother , namely , Sheikh Khurshid Ahmad, who was taxi-driver , was sitting on a chair outside the above referre d Hotel. On seeing them, Khurshid called them and asked them for a cup of tea. Khurshid made order for tea. Tea was not brought by the hotel waiter , then Khurshid Ahmad went to the counter of the hotel. Again Khurshid asked the waiter for tea but he replied with angry Khurshid took his mobile from the counter , which he had already put on charging. At that time, waiter was also present at the counter , who started quarreling with Khurshid. In the meanwhile, Munshi/Manager of the hotel also attracted to the counter and tried to pacify the matter . Meanwhile, said waiter namely , Raja Fahad Khan picked up Churi from the counter and inflicted Churri blow at Khurshid Ahmad which landed on the right side of his chest and accused Raja Fahad made second Churri blow which landed under the navel on the abdomen on right side of the navel. Khurshid Ahmad injured fell down on the ground and accus ed Raja Fahad fled from the place of the occurrence while waving Churri.
He along with Sadaqat Nadeem also chased accused Raja Fahad but he succeeded to flee away . They returned to attend Khurshid Ahmad. Rescue 1122 also reached at the spot who shifted the injured to Holy Family Hospital.
Khurshid Ahmad succumbed to the injuries in way to the Hospital, hence, this case."
3. Dr. Azhar Farooq C.M.O., Holy Family Hospital, Rawalpindi appeared as PW-8, who conducted autopsy of Khurshid Ahmad deceased on 13.03.2017 at 07:00 a.m. He observed two injuries on person of the deceased and noted probable time between injuries and death was immediate, whereas between death and postmortem was half hour.
4. After registration of the case, investigation was carried out by the police and on completion of the same, report under section 173, Cr.P.C. was submitted before the learned trial Court. Thereafter , learned trial Court after observing codal formalities, framed charge against the appellant, which was denied by him, hence, the trial commenced.
5. In order to prove the ocular account, the prosecution produced eye-witnesses Sheikh Naveed Ahmad and Sadaqat Nadeem as PW-6 and PW-9.. Aamir Mehmood SI, who conducted investigation of the case appeared as PW-7. Whereas remaining PWs were of formal in nature. Thereafter , the prosecution closed its evidence by producing-reports of Punjab Forensic Science Agency (PFSA) as Ex-PN, Ex-PO and Ex-PP .
6. After recording the prosecution evidenc e, appellant was examined under section 342, Cr.P.C., wherein he denied all the allegations levelled against him. He neither appeared as his own witness under section 340(2), Cr.P.C. nor produced any evidence in his defence.
7. Learned trial Court after appraisal of prosecution evidence convicted and sentenced the appellant in the above mentioned terms, hence, this appeal and Murder Reference.
8. In support of the instant appeal, learned counsel for the appellant has contende d that the prosecution has failed to prove the case against the appellant beyond reasonable shadow of doubt; that although two prosecution witnesses including Sheikh Naveed Ahmad complainant (PW-6), who was the real brother , claimed to be present at the crime scene but keeping in view the facts and circumstances of the case, their presence at the relevant time at the crime scene was highly doubtful as both of them have not given any plausible reason regarding their presence, hence, both the eye-witnesses can be categorized as chance witnesses; that even otherwise, there is no corroborative material available on record to support the depositions of the prosecution witnesses as the alleged recovery of 'Churri' was in fact planted on the appellant; that as far as the CCTV footage is concerned, that was of no help for the prosecution case as the same had not been secured by the Investigating Officer during the investigation. So under the circumstances, since the prosecution is not equipped with credible and confidence inspiring evidence, so, the instant appeal be accepted and the appellant be acquitted of the charge of murder .
9. Conversely , learned Deputy District Public Prosecutor vigorously rebutted the arguments advanced by the learned counsel for the appellant by contending that both the eye-witnesses have given cogent reason regarding their presence at the place of occurrence and since the appellant was neither previously known to them nor their any enmity was suggested against him, so, false implication is ruled out under the circumstances; that very strong scientific evidence i.e. close circuit camera (CCTV) - footage was available which clearly proved the involvement of the appellant in the alleged crime; that the recovery of blood stained knife (Churri) and its positive report from the office of Punjab Forensic Science Agen cy (PFSA) also provided sufficient corro boration to the ocular account.
Moreover , the appellant was held fully involved in the crime during the course of investigation, hence, the appeal filed by him is liable to be dismissed.
10. We have heard the arguments of learned counsel for the parties and have perused the record with their assistance.
11. In order to bring home the guilt of the appellant, the prosecution has relied upon the ocular account provided by Sheikh Naveed Ahmad (PW-6) and Saqaqat Nadeem (PW-9). Sheikh Naveed Ahmad (PW-6), who was the real brother of deceased Sheikh Khurshid Ahmad, while narrating the alleged incident deposed that on 13.03.2017 at about 04:30 a.m. he along with his patern al cousin Sadaqat Nadeem (PW-9) was going towards their office situated in Kohati Bazar , when they reached in front of New Khyber Hotel, his brother Sheikh Khurshid (deceased), who used to run a Taxi, called him and ordered for tea. When they were sitting on the chairs outside the hotel, some hot words were exchanged between Sheikh Khurshid and a waiter (whose name was later on known as Raja Fahad) of a hotel for not bringing tea and when his brother took his mobile phone from counter , which he had already put on charging, on that time the said waiter started quarreling with his brother and all of a sudden, he picked up a knife (Churn) from the counter and inflicted two knife (Churri) blows at his brother Sheikh Khurshid Ahmad, which landed at his right side of chest and on the abdomen.. The witnesses tried to apprehend the assailant by chasing him but he managed to flee away . The injured, Sheikh Khursh id Ahmad, was taken to hospital through rescue 1122 but he succumbed to the injuries on the way. The other eye-w itness Sadaqat Nadeem (PW-9), who was the cousin of the complainant and deceased and also used to live in their neighbour has narrated the incident almost in a similar manner and while giving his reason to be present at the crime scene, he deposed that he had to collect a consignment from office of Sheikh Naveed Ahmad (PW-6) complainant and that was the reason to accompany him. We have gone through the statements of both the PWs and found that they are in unison on material aspects of the case regarding mode, manner of occurrence and the role allegedly played by the appellant.
Both of them were cross-examined by the learned defence counsel but we noted that no serious effort was made by the learned defence counsel to challenge their availability at the crime scene and rebut their evidence. Learned defence counsel had only put bald suggestions to them, without putting any solid material to dislodge their claim qua the culpability of the appellant.
12. But we think that the most important evidence, which has paramount importance, is available in the case in shape of Close Circuit Camera footage of the occurrence, which was secured through USB on the order of the learned trial court during the course of trial. We are mindful of the fact that during the course of investigation, the Investigating Agency had never collected the CCTV footage data but at the same time, we believed that sections 94 and 540 of the Code of Criminal Procedure, 1898 (V of 1898), (The Code) have given ample powers to the learned trial court to requisition any document or other thing necessary or desirable for the purposes of trial to summon any person in whose possession or power such document or thing is believed and produced the same.
Sub-clause (1) of section 94 of the Code reads as under;- "Whenever any court or any officer in charge of a police-station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry , trial or other proceeding under this Code by or before such Court or officer , such Court may issue a summons, or such officer a written order , to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order; So, we believe that the learned trial court was well within its jurisdiction of calling upon the CCTV footage and using the same as evidence in support of the prosecution case. Even otherwise, we have gone through the findings given by the learned trial court and the impugne d order regarding production of CCTV footage, we have noted that same was requisitioned by the learned trial court, when the prosecution witnesses appraised the court that in fact CCTV cameras were installed at the hotel as all hotels in the city area were bound to install cameras within its premises.
So, in consequence of order passed by the learned trial court, the hotel manager , namely , Shaban son of Ch. Khuda Bakhsh appeared before the learned trial court as CW-1 and submitted a USB containing the recording of CCTV footage of the occurrence, which was duly exhibited as Ex-CW -1/A. The said footage was played in the learned trial court, in presence of accused, in which inflicting the injuries on part of the accused at person of the deceased was clearly shown. The said CW also admitted in his deposition that since the CCTV camera was installed at his hotel and during the course of investigation the police of ficials had also seen the said footages.
13. Provisions of Article 164 of the Qanun-e-Shahadat Order , 1984 (QSO), were the gateway allowing modern forensic science to be produced any evidence that may become available because of modern devices and techniques. A proviso to Article 164 of the QSO had been added in the year 2017 under Act IV of 2017 dated 17.02.2017, which provides that conviction on the basis of modern devices and techniques may be lawful.
14. In criminal cases the identity of actual accused is an element of primary importance. A lot of pre-meditation, improvements and tactical delays on the part of the complainant party can be checked if scientific analysis is resorted to, apart from saving time and ensuring quick disposal of cases. Many genuine complaints remain unresolved due to stereotype method of investigation. So we find that Article 164 of the Qanun-e-Shahadat Order , 1984 has resolved the problem and the evidence based on modem devices and techniques has been made admissible. For this purpose, we have been fortified by the recent pronouncement of the learned apex court of the country in its judgment titled as "Ali Haider alias Papu v. Jameel Hussain and others"( PLD 2021 Supreme Court 362) and a judgment of this court titled as "Muhammad Sohail alias Samma and others" (2019 PCr.LJ 1652). While highlighting the importance of Forensic Science in above referred judgment, the august Supreme Court observed as under;- "Before analyzing the circumstantial evidence, it might be useful to underline the role of science, modern forensic techniques and devise under our criminal justice system. For the law to serve people in this technologically complex society , courts need to understa nd and be open to science and its principles, tools and techniques. Legal decisions of the courts must fall within the boundaries of scientifically sound knowledge. A judge and more so a trial judge, acts as a gatekeeper of the scientific evidence and must, therefore, enjoy a good sense and understanding of science. As science grows so will the forensic techniques, tools and devices; therefore, courts must be open to developments in forensic science and embrace new techniques and devices to resolve a dispute, provided the said technique and device is well established and widely accepted in the scientific community as a credible and reliable technique or device. Article 164 of the Qanun-e-Shahadat Order , 1984 (QSO) is our gateway allowing modern forensic science to come into our courtrooms. Article 164 provides that courts may allow to be produced any evidence that may have become available because of modern devices and techniques. Proviso to Article 164, added in the year 2017, provides that conviction on the basis of modern devices and techniques may be lawful.
Article 164 read with Article 59, inter alia, allows modern forensic science to enter courts through the credible and valued scientific opinions of experts as evidence, in order to arrive at the truth."
So under the circumstances, we noted that evidence produced by the prosecution in shape of ocular account and the scientific evidence consisting upon CCTV footage are reliable, confidence inspiring and trustworthy .
15. During the course of investigation, the blood stained knife (Churri) was allegedly recovered in pursuance of information provided by the appellant himself to the police and he had himself led to the police party and got the blood stained knife (Churri) recovered underneath water tank from the rooftop of the said hotel. The weapon was secured through memo Ex-PG and the same was sent for forensic analysis. In this regard we have perused the report (Ex-PO) submitted by the Punjab Forensic Science Agency (PFSA) and the same was tendered before the learned trial court and noted that this report not only declared that the weapons (Churri) was stained with human blood but it also contained the finger prints of Raja Fahad (appellant). The relevan t portion of the said report reads as under:- "After complete examination, one latent print marked as LP-1 developed on bloody blade of knife (Item No.1) was individualized as the right index finger of Raja Fahad Khan son of Raja Liaqat Khan (Item No.2) and one latent print marked as LP-2 developed on black insolation tape (Nido Tape) wrapped on handle of bloody knife (Item No.1) was individualized as the right palm of Raja Fahad Khan son of Raja Liaqat Khan (Item No.2)."
And this piece of evidence without calling the expert as witness is admissible and can be lawfully relied upon under section 510 of the Code.
16. On going through the above said evidence, we entertain no doubt qua the culpability of the appellant in the alleged crime, but at the same time we observe that no previous or grudge existed between the parties rather they were previously unknown to each other and claim of the prosecution, right from lodging the FIR and during the trial has been that the alleged incident took place at a spur of the moment and in a heat of passion and some "hot words" were exchanged between the deceased and the appellant at the crime scene, which resulted a physical assault by the appellant on the deceased. So, we believe that although the prosecution remained successful to prove its case and established the guilt of the appellant beyond shadow of reasonable doubt, so under the circumstances, the appellant cannot be convicted and sentenced of committing the offence of Qalt-i-Amd punishable under section 302(a)(b), P.P.C. rather the facts and circumstances of the case suggest that the same is covered under the provisions of section 302(c), P.P.C. It is now well settled that offence under section 302(c), P.P.C. is made out in cases, where exception (iv) to the erstwhile provision of section 300, P.P.C. stand attracted.
Reference in this regard may be made to the cases titled as "Ali Muhammad v. Ali Muhammad and another (PLD 1995 Supreme Court 274), Zahid Rehman v. The State (PLD 2015 Supreme Court 77), "Azamat Ullah v.
The State" ( 2014 SCMR 1 178) and "Muhammad Asif v . Muhammad Akhtar and others" ( 2016 SCMR 2035 ).
For facility of reference Exception 4 is reproduced hereunder;- "Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner ."
Some excerpts from the testimony of both the eye-witnesses are re-produced for the reference, which erupted the alleged incident. Sheikh Naveed Ahmad (PW -6) in his testimony deposed as under; "The hot words were exchanged for few moments between the deceased and the accused"
Similarly , Sadaqat Nadeem (PW -9) deposed as under;- "Khursheed again called him and then some hard words exchanged" So, in the instant case on perusal of FIR, statement of eye-witnesses and the other facts and circumstances available on record show that there was no background of or 'bitterness between the appellant and the deceased and the incident in issue had erupted all of a sudden without premeditation and we believe that the appellant allegedly caused fatal knife (Churri) injuri es to the deceased due to a sudden quarrel between them. At the same time nothing is available on record, which could suggest that the appellant had taken undue advantage or acted in cruel or unusual manner .
17. Upshot of the above discussion is that the prosecution has proved its case against the appellant beyond shadow of reasonable doubt but as discussed above, we believe that the appellant is liable to be convicted and punished under section 302(c), P.P.C. instead of section 302(b), P.P.C. Resultantly , we convert the conviction and sentence awarded to the appellant Raja Fahad under sections 302(b), P.P.C. to 302(c), P.P.C. and sentence him to fourteen years rigorous imprisonment. However , sentence of compensation under section 544-A, Cr.P.C. payable to the legal heirs of the deceased and the imprisonment in default shall remain intact. With the above modification in conviction and sentence of the appellant awarded by the learned trial court, the instant appeal is dismissed.
However , benefit under section 382-B, Cr.P.C. is granted to the appellant. Conseq uently , Murder Reference No.79 of 2019 is answered in the NEGA TIVE and death sentence of the appellant Raja Fahad is NOT CONFIRMED.