SADIQ MAHMUD KHURRAM, J.---The convict namely Sharaaf Khan son of Karam Daad was tried by the learned Additional Sessions Judge, Pindi Gheb, District Attock, in case FIR No. 1 of 1998 dated 02.01.1998 registered at Police Station Pindi Gheb, District Attock, in respect of offences under sections 302, 324 and 34, P.P.C. for committing the Qatl-i-Amd of Ghulam Ali son of Ghulam Muhammad (decease d). The learned trial court vide judgment dated 14.10.2017, convicted Sharaaf Khan son of Karam Daad (convict) and sentenced him as infra: Sharaaf Khan son of Karam Daad: Death under section 302(b), P.P.C. as Tazir for committingQatl-i-Amd of Ghulam Ali son of Ghulam Muhammad(deceased) and directed to pay Rs.500,000/- as compensationunder section 544-A, Cr.P.C. to the legal heirs of the deceased,in case of default thereof, the convict was further directed toundergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
Imprisonment for life under section 449, P.P.C. and directed to pay fine of Rs. 1,00,000/- and in default thereof to further undergo simple imprisonment for three months.
Rigorous Imprisonment for five years under section 337-A(ii),P .P.C. and directed to pay Arsh of Rs.96,780/- (for causinginjuries to Ghulam Muhammad (PW -12). The convict wasdirected to remain in jail till the payment of Arsh.
2. Feeling aggrieved, Sharaaf Khan son of Karam Daad (convict) lodged Criminal Appeal No.11294 of 2017 against his conviction and sentence through jail. The learned trial court submitted Murder Reference No.94 of 2017 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Sharaaf Khan son of Karam Daad. We intend to dispose of the Criminal Appeal No. 11294 of 2017 and Murder Reference No.94 of 2017 through this single judgment.
3. Precisely , the necessary facts of the prosecution case, as enumerated in the statements of the witnesses namely Ghulam Muhammad (PW-12) and Mst.Begum Jan (PW-11) (both since dead) are that on the day of occurrence they were present in their house when at about 12.30 a.m, (night) the appellant namely Sharaaf Khan along with one unknown pekson entered the house of Ghulam Muhammad (PW-12) and upon inquiry by Ghulam Ali (deceased) as to why the appellant had entered their house , the appellant, who was armed with a rifle, fired at Ghulam Ali (deceased) hitting him on his back and also gave a blow of the nozzle of the rifle on the forehead of Ghulam Muhammad (PW-12) and fled away from the spot. Ghulam Ali (deceased) died as a result of the injury at the place of occurrence.
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Sharaaf Khan son of Karam Daad was sent to face trial. The learned trial court framed the charge against the accused on 11.03.2015, to which the appellant pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as thirteen witnesses recorded. The ocular account of the case was based on the statements of Ghulam Muhammad (PW-12) and Mst.Begum Jan (PW-11).
Ghulam Mustaf, ASI (PW-2) stated that on 02.01.1998 Adalat Hussain, S.I. (PW-10) handed over to him two sealed parcels said to contain blood stained piece of quilt and a crime empty of 0.8 mm which on 06.01.1998 he handed over the said parcels to Abdul Ghafoor 629/C (PW-4) for their onward transmission to the office of the Chemical Examiner for Punjab, Lahore (Exh.PR) and the office of Forensic Science Laboratory , Lahore. Ghulam Mustaf, ASI (PW-2) further stated that on 20.01.1998 Adalat Hussain, S.I. (PW-10) handed over to him a sealed parcel said to contain a rifle which on 26.01.1998, he handed over to Muhammad Yar 61/C (PW-13) for its onward transmission to the office of Forensic Science Laboratory , Lahore. Muhammad Sher S.I. (PW-3) stated that on 20.01.1998 the rifle (P-1) was recovered from the house of the appellant Sharaaf Khan in his absence. Muhammad Sher S.I. (PW- 3) further stated that on 09.02.1998 he was handed over non-bailable warrants of arrest (Exh.PD) of the appellant and on 15.04.1998 he was handed over the proclamation (Exh.PE) for execution by the Investigating Officer and his reports on the said documents are Exh.PD/1 and Exh.PE/1. Abdul Ghafoor A.S.I. (PW-4) stated that on 02.01.1998 he escorted the dead body of the deceased for its post mortem examination and also received the last worn clothes of the deceased and handed over the same to the Investigating Officer and on 06.01.1998 he was handed over two sealed parcels said to contain blood stained piece of quilt and a crime empty of 0.8 mm for their onward transmission to the office of the Chemical Examiner for Punjab, Lahore (Exh.PR) and the office of Forensic Science Laboratory , Lahore. Ahmad Khan , draftsman (PW-5) prepared the g led site place of the place of occurrence (Exh. PG). Fateh Kha 35/HC (PW-6) recorded the formal FIR (Exh. PH) on 02.01.1 8. Noor Abdullah (PW-9) identified the dead body of the deceas at the time of post mortem exam ination on 02.01.1998 and also witnessed the recovery of rifle (P-1) on 20.01.1998 from the house of the appellan t in his absence. Adalat Hussain S.I. (PW-10) investigated the case from 02.01.1998 till 15.04.1998 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Javed Iqbal, S.I. (PW-8), investigated the case from 1.02.2015 till 07.02.2015, arrested the appellant on 01.02.2015 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.
6. The prosecution also got Dr. Zaheer ul Haq (PW-1) examined who, on 02.01 .1998, was posted as Medical Officer at THQ Hospital, Pindi Gheb, District Attock, and on the same day conducted the postmortem examination of the dead body of Ghulam Ali son of Ghulam Muhammad (deceased). Dr. Zaheer ul Haq (PW-1), on examining the dead body of Ghulam Ali son of Ghulam Muhammad (deceased) observed as under:- "EXTERNAL APPEARANCE It was the dead-body of young boy of normal built, aged about 14 years. He was wearing angori colour shalwar qameez both blood stained, his height was about OS feet, his eyes and mouth was semi close. Rigor mortis and postmortem staining was present on his body , the colour of body was pale. The corresponding holes of firearm were present on qameez. Following injuries as per postmortem examination were found on the person of deceased: -
1. A firearm wound 2 cm x 1 cm on back of left side of chest oval in shape 2 cm away from midline and 4 cm above margin of last rib. Margin of wound were defined and inverted. This was an entry wound.
2. A firearm wound 3 cm x 3.5 cm on front of left side of chest 6.5 cm below the left nipple. The wound was 7 cm from midline. The wound was semi circular in shape, blackening was present around the wound and tissues were coming out. The margin of the wound was averted. That was the exit wound for injury No.01.
On dissection the injury No.1 damaged and fractured the last rib of the back of the chest closed to vertebral column, then went invert and upward and damaged the spleen, left kidney , stomach and came out as injury No.02 damaging and fracturing the last thee ribs anteriorly on chest. ......................................................
REMARKS.
In my opinion, the death was caused by injury Nos.01 and 02 which damaged the spleen, left kidney and stomach badly . These organs were ruptured and damaged and led to hemorrhage shock and death. These injuries were dangerous and to cause death in a very short period of time in ordinary course of life under ordinary circumstances.
The injuries were incompatible with life. These injuries were ante mortem and caused by firearm. The probable time elapsed between the injuries and death was not more than half an hour and between death and postmortem was about 09 to 09 and half hours.
Dr. Zaheer ul Haq (PW-1) had also examined Ghulam Muhammad (PW-12) on the same day and observed as under :- 'Lacerated wound 1.5 cm x 0.5 cm on left side of forehead and 2.5 cm above the left elbow The wound was bone deep.
The probable duration of injury was 04 to 04 and half hours and the weapon used was blunt in nature."
7. On 09.06.2016 the learned ADPP , gave up prosecution witnesses namely Nawab Khan A.S.I. and Riaz Hussain A.S.I. as being unnecessary . On 14.07.2016 the learned ADPP , gave up prosecut ion' witnesses namely Riasat Ali and Shah Nawaz as being unnecessary and Sher Muhammad as being dead. On 14.09.2017, the learned ADPP , gave up witness namely Muhammad Ameer as being won over by the accused and Noor Ahmad as being unnecessary , tendered in evidence the report of Chemical Examiner for Punjab, Lahore (Exh.PR) , the report of serologist (Exh. PS) and the report of Forensic Science Laboratory , Lahore (Exh. PT) and closed the prosecution evidence.
8. The learned trial court also recorded the statements of three witnesses as court witnesses Khalil Ahmad S.I.
(CW-1) stated that on 12.07.2016 he was handed over non-bailable warrants of arrest of the prosecution witnesses namely Begum Jan, Ghulam Muhammad and Sher Muhammad and was handed over the death certificates of the above mentioned prosecution witnesses. He further stated that the death certifica te of Begum Jan (Exh.CC), the death certificate of Ghulam Muhammad (Exh.CD) and the death certificate of Sher Muhammad (Exh.CB) were issued by the NADRA office. Zeeshan Ali 1678/C (CW-2) stated that on 24.08.2016, he was handed over the warrants of arrest of Adalat Hussain S.I. (PW-10). Muhammad Hayat S.I. (CW-3) stated that he was handed over the warrants of arrest of Muhammad Yar 61/C (PW-13) and obtained the death certificate of Muhammad Yar 61/C (Exh.CG).
9. After the closure of prosecution evidence, the learned trial court examined the appellant namely , Sharaaf Khan son of Karam Daad under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely , Sharaaf Khan son of Karam Daad opted not to get himself examined under section 340(2), Cr.P.C. however produced the 'copy of judgment of the learned trial court dated 27.03.2002 (Exh.DA) as evidence in his defence.
10. On the conclusion of the trial, the learned Additional Sessions Judge, Pindi Gheb, District Attock, convicted and sentenced the appellant as referred to above.
11. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant, further contended that the story of the prosecution mentioned in the FIR, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity . The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of a doubt.
12. On the other hand, learned Deputy Prosecutor General contended that the prosecution has proved its case beyond a shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statements of Mst. Begum Jan (PW-11) and Ghulam Muhammad (PW-12). The learned Deputy Prosecutor General further argued that the recovery of rifle (P-1) from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses to substitute the real offender with the innocent in this case. Lastly , he prayed for the rejection of the appeal.
13. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial.
14. The whole prosecution case revolves around the statements of Ghulam Muham mad (PW-12) and Mst. Begum Jan (PW-11). As mentioned above, Ghulam. Muhammad and Mst. Begum Jan (both since A dead) did not appear before the learned trial court as they had died before their statements could be recorded by the learned trial court during the trial of the appellant. According to the Death Registration Certificate (Exh.CC), Ghulam Muhammad, the complainant of the FIR died on 31.10.2015, whereas according to the Death Registration Certificate (Exh.CD), Begum Jan the eye-witness of the case, died on 19-01.2001. Their statements had been recorded on 07.12.1999, in the proceedings under section 512, Cr.P.C. against the appellant, therefore, their testimony was transposed to the trial of the appellant and their statem ents recorded during the proceedings under section 512 of the Code of Criminal Procedure, 1898 were brought on record after the learned trial court allowed the application with regard to transposing the evidence of the said witnesses namely Ghulam Muhammad and Begum Jan. The statements of witnesses namely Ghulam Muhammad and Begum Jan were transposed from the file of the proceedings under section 512 of the Code of Criminal Procedure, 1898 to the file of the trial of the B appellant. The statements of Mst. Begum Jan recorded as (PW-4) and Ghulam Muhammad recorded as (PW-6) in the proceedings conducted under section 512 of the Code of Criminal Procedure, 1898 were placed on record of this case vide order dated 14.09.2017 passed by the learned trial court and the learned trial court directed that their statements shall be read as that of Mst. Begum Jan (PW-11) and Ghulam Muhammad (PW-12). The order passed by the learned trial court qua transposing the statements of these witnesses has attained finality , as the same order was not questioned before any competent forum. By virtue, of Article 47 of the Qanun-e-Shahadat Order , 1984, evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is relevant for the purpose of proving the same in a subsequent judicial proceeding or at a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or is incapable of giving evidence. The aforesaid article has been inserted in the Statute to meet such like situation as in this case where both the eye- witnesses died before they could appear before the learned trial court during the trial of the appellant. Similarly , section 512 of the Code of Criminal Procedure, 1898 provides three eventualities for preservation and transfer of statements of witnesses during the abscondence of accused i.e. if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay , expense or inconvenience, which under the circumstances of the case, would be unreasonable. Section 512 of the Code of Criminal Procedure, 1898 provides a special rule of evidence which is an exception to the general rule that all evidence in a criminal case shall be taken in the presence of the accused or his counsel when his personal appearance is dispensed with. The basic object of the section 512 of the Code of Criminal Procedure; 1898 is to exclude the possibility of loss of evidence at the time the accused is arrested and such statements recorded D during the proceedings under section 512 of the Code of Criminal Procedure, 1898 are considered as substantive evidence. Section 512 of the Code of Criminal Procedure, 1898 provides as under:- "512. Record of evidence in absence of accused.---(1 ) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him the Court competent to try or send for trial to the Court of Session or High Court such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, of trial for the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay , expense or inconvenience which, under the circumstances of the case, would be unreasonable."
The bare reading of the section 512 of the Code of Criminal Procedure, 1898 provides that the witnesses produced on behalf of the prosecution may be examined in the absence of the absconding accused and such deposition may, on the arrest of such person, be given in evidence against him during the trial for the offence with which he is charged, if the deponent is dead. In this case, both the eye-witnesses namely Ghulam Muhammad and Mst.
Begum Jan are proved to have died prior to the recording of their statements during the trial of the appellant after his arrest and their depositions, as recorded by the learned trial court on 07.12.1999 during the proceedings under section 512 of the Code of E Criminal Procedure, 1898 are admissible and relevant to prove the facts in issue.
Reliance is placed on the case of Ibrahim alias Ibro alias Khalifa v. The State (1968 PCr.LJ 1844) wherein the august Supreme Court of Pakistan has held as under: "The next objection raised is to the admis sion under section 33 of the Evidence Act of the statement made by Miru before the Committing Magistrate, leaving out the more detailed statement he gave in the Court of Sessions at the previous trial. Section 33 of the Evidence Act merely makes the evidence given by a witness in a judicial proceeding, or before any person authori sed by law to take it, relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence. There was no legal bar, therefore, to the admissibility of the deposition given before a Committing Court in a subsequent trial, because, that was evidence recorded by a Magistrate competent to record the same. There is nothing in the section itself to show that where two previous depositions are available, which one should be brought into evidence. It might have been better to bring in the more detailed statement given in the Session Court but we are unable to say that the Committing Court statement of the witness was inadmissible in law. If the appellant thought that the statement of the witness given in the Sessions Court should have been brought in under section 33 of the Evidence Act as it would have been more helpful to him, he could also have asked for the same to be brought in under the said section."
Reliance is placed on the case of "Arbab Tasleem v. The State (PLD 2010 Supreme Court 642) wherein it was observed as under :- "12. To the above general rule of evidenc e there are two exceptions where a state ment made by a witness without being cross-examined and made at the back of the accused person are made admissible. These two exceptions are; one covered under Article 46 of the Order when a person makes a statement as to the cause of his death and the second exception is under section 512, Cr. P. C. where an accused person absconds, law makes it permissible under section 512, Cr. P. C. to preserve the evidence, therefore, during the abscondence of an accused person statement of the witnesses are recorded with a view that if at the trial of the absconding accused such witness is either dead or has become incapable of giving evidence or his presence cannot be acquired without unnecessary delay , his statement previously recorded at the back of the accused can be taken into evidence."
We have perused the statements of Begum Jan (PW-11) and Ghulam Muhammad (PW-12) and find that these witnesses namely Ghulam Muhammad (PW-12) and Mst. Begum Jan (PW-11) were related to each other and the deceased. Their relationship with the deceased is also on record. The deceased namely Ghulam Ali son of Ghulam Muhammad was the son of both Ghulam Muhammad (PW-12) and Mst. Begum Jan (PW-11). Ghulam Muhammad (PW-12) and Mst.Begum Jan (PW-11) both explained their presence at the place of occurrence, at the time of occurrence categorically . The place of occurrence was the house of both Ghulam Muhammad (PW-12) and Mst.Begum Jan (PW-11). Their presence in their house at the time of occurrence was only but natural. Ghulam Muhammad (PW-12) was also injured during the occurrence and was examined by Dr. Zaheer ul Haq (PW-1). Dr. Zaheer ul Haq (PW-1) observed a lacerated wound of the dimension of 1.5 cm x 0.5 cm on left side of forehead on the person of Ghulam Muhammad (PW-12). The said wound was bone deep as per observation of Dr. Zaheer ul Haq (PW-1). The probable duration of injury was opined to be 04 to 04 and half hours before medical examination and the weapon used to cause the said injury was declared to be blunt in nature by Dr. Zaheer ul Haq (PW-1).
Ghulam Muhammad (PW-12) was examined by Dr. Zaheer ul Haq (PW-1) at 4.00 a.m. In this manner the opinion of the Dr. Zaheer ul Haq (PW-1) that Ghulam Muhammad (PW-12) had received the injury within 04 to 04 and half hours of his examination also establishes the time of occurrence as given by the eye-witnesses. We have also perused the rough site plan (Exh.PQ) as prepared by Adalat Hussain, S.I. (PW-10) and the scaled site plan of the place of occurrence (Exh.PG) as prepared by Ahmad Khan, draftsman (PW-5) and find that the place of occurrence has been identified as the house of both Ghulam Muhammad (PW-12) and Mst. Begum Jan (PW-11). During the course of investigation, Adalat Hussain, S.I. (PW-10), the Investigating Officer of the case, also collected the blood stained piece of quilt from the place of occurrence and took the same into poss ession through recovery memo (Exh.P0). The report of the Chemical Examiner for the Punjab, Lahore (Exh.PR) establishes that the said blood stained piece of quilt collected from the place of occurrence was indeed stained with blood and the report of the Serologist to the Government of Punjab (Exh. PS) establishes that the said blood stained piece of quilt collected from the place of occurrence was indeed stained with human blood. This evidence also establishes the place of occurrence being the same as deposed by the witnesses and being their house. Ghulam Muhammad (PW-12) and Mst. Begum Jan (PW-11) fairly succeeded in proving their presence at the spot and witnessing the occurrence. We have observed no crashes in their deposition and the veracity of their statements is borne out from the record.
Moreover , Ghulam Muhammad (PW-12) and Mst. Begum Jan (PW-11) being parents of the deceased had no reason to falsely implicate the appellant in the commission of the offence substituting him, letting off the real culprits. There is no such material available on record which would indicate substitution of the appellant in the case with the real culprit. Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of Irshad Ahmad and others v. The State and others (PLD 1996 SC 138). The appellant has not been able to establish any animosity of the complainant or the police for his false involvement in the case. Ghulam Muhammad (PW-12) and Mst.Begum Jan (PW-11), in a straightforward manner , held the appellant responsible for the murder of their son namely Ghulam Ali (deceased). Mere relationship of the prosecution witnesses with the deceased and I inter-se is not sufficient to discredit their testimony . In this regard, reference is made to the judgment in the case titled as Ijaz Ahmad v.The State (2009 SCMR 99 ) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- "In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy . It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relation-ship with the deceased, would not let go the real culprit or substitute an innocent person for him."
In view of the above discussion, Ghulam Muhammad (PW-12) and Mst.Begum Jan (PW-11) being the residents of the place of occurrence, were the natural witnesses. Reliance in this regard is placed on the case of "Abid Ali v.
The State" (2017 SCMR 662 ) wherein the august Supreme Court of Pakistan has held as under:- "Mst. Fateh Bibi complainant was the mother of Manazir Ali deceased and she resided in the very house in which the occurrence had taken place and the time of occurrence was such that availability of the complainant in her house at that time was nothing but natural and expected."
Reliance in this regard is also placed on the case of "Muhammad Arshad v. The State" (2006 SCMR 89) wherein the august Supreme Court of Pakistan has held as under:- The ocular account in the present case was furnished by the inmates of the house who were the most natural witnesses and their testimony was found truthful, confidence-inspiring and free from any malice, which would also seek ample corroboration from the medical evidence.
Reliance in this regard is also placed on the cases of "Sultan Mahmood v. The State" (2006 SCMR 1387 ) and "Sajid v. The State " (PLD 2006 Supreme Court 292) wherein it was held that as the occurrence had taken place inside the house of the witnesses, therefore the inmates of the house were the most natural witnesses.
15. The occurrence was reported by the complainant namely Ghulam Muhammad (since dead) at 2.45 a.m. (night) when the occurrence had taken place at 12.30 a.m (night). The oral statement (Exh.P .J.) of Ghulam Muhammad (PW-12) was recorded by Adalat Hussain , S.I. (PW-10), the Investigating Officer. On the basis of the recorded oral statement (Exh.PJ) of the complainant namely Ghulam Muhammad (PW-12) (since dead), the formal FIR (Exh.P .H) was registered at 3.40 a.m. by Fateh Khan 235/HC (PW-6) when the police station was at a distance of twenty six kilometers from the place of occurrence. Thus, it is apparent that the FIR (Exh.PH) was got lodged within a short duration and the complainant not only named the appellant, but also mentioned each and every minor as well as material fact of the incident therein, which of course excludes the possibility of deliberation or consultation regarding false implication of the appe llant in the instant case. The promptitude in lodging of the FIR, in circumstances when the complainant had seen his son namely Ghulam Ali (deceased) being attacked and murdered, also corroborates the case of the prosecution as against the appellant. The details of the occurrence have been elaborately narrated in the oral statement (Exh.P .J.) of Ghulam Muhammad (PW-12). In this regard, reference is made to the judgment in the case titled as Muhammad Waris v. The State (2008 SCMR 784) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- "The names of the said two eye-witnesses could not have been mentioned in such a promptly lodged FIR if they had not been with the deceased persons at the time of their death."
Furthermore, we have noted that as per column No.11 of the inquest report (Exh.PM), at the time of preparation of the same, the blood was in a fluid state and had not coagulated at that time. This also proves that the matter was reported to the police with promptitude by the witnesses. According to column No.8 of the inquest report (Exh.PM), at the time of preparation of the same, the eyes of the deceased were also closed and had the deceased met his death in absence of the witnesses, then his eyes would not have been found closed . It is correct that it is a tradition in Pakistan that after the death, people immediately close the eyes and mouth of the deceased. Thus, the closed eyes of the deceased further proves the prosecution's version regarding the presen ce of the witnesses at the place at the time of occurrence.
16. The medical evidence, produced by the prosecution in the case, proved that the deceased had received the fatal injuries with a firearm weapon on the vital part of his body and he succumbed to the said injuries. The medical evidence fully supports the ocular accou nt. The probable time between death and postmortem examination as noted by the Medical Officer coincides with the ocular account. Dr. Zaheer ul Haq (PW-1), who conducted the postmortem examination of the dead body of Ghulam Ali son of Ghulam Muhammad (deceased), observed a firearm wound of the dimension of 2 cm x 1 cm on the back of left side of chest oval in shape, 2 cm away from midline and 4 cm above margin of last rib. Dr. Zaheer ul Haq (PW-1) opined that the said injury was an entry wound which had exited from the front of the chest. Dr. Zaheer ul Haq (PW-1) further observed that the injury No.1 damaged and fractured the last rib of the back of the chest, close to vertebral colum n, went inward and upward and damaged the spleen, left kidney , stomach and came out as injury No.02, damaging and fracturing the last three ribs anteriorly on chest. Dr. Zaheer ul Haq (PW-1) further opined that death was caused by injuries Nos. 01 and 02 which damaged the spleen, left kidney and stomach badly as these organs were ruptured and damaged and led to hemorrhage shock and death. Dr. Zaheer ul Haq (PW-1) further opined that the said injuries were sufficient to cause death in a very short period of time in ordinary course of life under ordinary circumstances and was caused by a firearm weapon. The appellant has been saddled with the responsibility of causing the said fatal injury (injury No.1). In this manner the ocular account is fully corroborated by the medical evide nce available on record. In view of the above discussion, it is ascertained that the intent of the appellant was to cause death and that he is guilty of Qatl-i-amd .
17. Then there is also the matter of the unexplained disappearance of the appellant after the occurrence. Javed Iqbal, S.I. (PW-8) investigated the case from 1.02.2015 till 07.02.2015 and arrested the appellant on 01.02.2015 i.e after a period ci seventeen years and one month. Muhammad Sher S.I. (PW-3) stated that on 09.02.1998 he was handed over non-bailable warrants of arrest (Exh.PD) of the appellant and on 15.04.1998 he was handed over the proclamation (Exh.PE) for execution by the Investigating Officer and his reports on the said documents are Exh.PD/1 and Exh.PE/1. Adalat Hussain S.I. (PW-10) stated that he got issued the warrants of arrest (Exh. PD) of the appellant and the proclamation (Exh. PE) and thereafter submitted the report for proceedings under section 512 Code of Criminal Procedure, 1898. There is no explanation forthcoming of the sustained abscondence of the appellant. The occurrence in this case took place on 02.01.1998, whereas the appellant was arrested in this case on 01.02.2015, meaning thereby that he evaded the process of law for as many as seventeen years and one N month. Article 21 of the Qanun-e-Shahadat, 1984 provides that the fact that any person accused of a crime absconded after the same is a relevant fact to prove the fact in issue. Illustration (i) of Article 21 of the Qanun-e- Shahadat, 1984 reads as under:- "(i) A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant."
This conduct of the appellant to evade the law after the occurrence is a further indicator pointing towards of his guilt when considered in conjunction with the ocular evidence in the case. The augus t Supreme Court of Pakistan in the case of "Mst. Roheeda v . Khan Bahadur and another" (1992 SCM R 1036) has held as under:- "No doubt, abscondence by itself is not sufficient to convict an accused person but is a strong piece of corroborative evidence of the other direct an circumstantial evidence in the case. In the instant case the accused/respondent No.1, Jahanzeb accu sed (since murdered) and their brother Aurangzeb remained fugitive from justice for a very long time without any plausible an reasonable explanation. Their conduct after the occurrence was indicative of their guilt when considered in conjunction with the ocular and circumstantial evidence in the case."
The august Supreme Court of Pakistan in the case of "Ashiq Hussain v. The State" (2017 SCMR 188) has held as under:- "During the investigation the appellant had made himself scarce and had, thus, been declared a Proclaimed Offender and such conduct on the appellant's part had provided further corroboration to the ocular account."
The august Supreme Court of Pakistan in the case of "Muhammad Latif alias Tifa v. The State" (2008 SCMR 1106) has held as under:- "It is also an admitted fact that after the occurrence, the appellant remained at large for about 41/2 years and his abscondance was taken as an incriminating piece of evidence."
The august Supreme Court of Pakistan in the case of "Saif-ul-Islam v. The State" (2008 SCMR 1236 ) has held as under:- "The occurrence took place on 4-7-2004 but accused/petitioner did not joint investigation rather he went abroad (Dubai). He was brought to Pakistan through Interpol Police and on 23-2-2005 he was arrested in this case. The petitioner was declared P.O. He has failed to explain as to why he remained absent and this incriminating circumstance too operates to his disadvantage."
18. Regarding the recovery of the rifle (P-1) from the appellant namely Sharaaf Khan, the same cannot be relied upon as the fact remains that the recovery of the rifle (P-1) was effected from the house of the appellant in his absence. Therefore, the recovery of the rifle (P-1) from the appellant does not further the case of prosecution in any manner . In view of the above mentioned facts, the alleged recovery of the rifle (P-1) is not proved and the same cannot be used as a circumstance against the appellant.
19. The motive of the occurrence, as mentioned by Ghulam Muhammad (PW-12) (since dead) in his oral statement (Exh.PJ) was that the appellant had some nefarious motive for entering the house of Ghulam Muhammad (PW-12).
No further details of the motive were mentioned in the oral statement (Exh.PJ) or in the statements of Ghulam Muhammad (PW-12) and Mst. Begum Jan (PW-11). There is a haunting silence with regard to the particulars of motive alleged. Consequently , it is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which had resulted into the death of Ghulam Ali, deceased. Therefore, we have concluded that the prosecution failed to prove the motive of the occurrence.
20. We have disbelieved the evidence of prosecution qua the motive and recovery of the rifle (P-1) in this case.
However , even if the evidence of motive and recovery of the rifle (P-1) is exclude d from consideration, even then there is sufficient incriminating evidence available on the record against the appellant namely Sharaaf Khan son of Karam Daad to prove the case of prosecution against him. As discussed earlier , the prosecution case was fully proved through the evidence of eye-witnesses namely Mst. Begum Jan (PW-11) and Ghulam Muhammad (PW-12).
Their evidence is quite natural, straightforward and confidence inspiring. The ocular account of occurrence as given by the abovementioned eye-witnesses is fully supported by the medical evidence furnished: by Dr. Zaheer ul Haq (PW-1) therefore, we hold that the prosecution has proved its case against the appellant namely Sharaaf Khan son of Karam Daad beyond the shadow of any doubt.
21. Now coming to the quantum of sentence we have noted some mitigating circumstances in favour of the appellant namely Sharaaf Khan son of Karam Daad, firstly , the evidence of recovery of rifle (P - 1) from the possession of the appellant namely Sharaaf Khan son of Karam Daad has been disbelieved by us for the reason mentioned in Para No.18 of this judgment, secondly the prosecution had alleged a motive in this case but had failed to prove the same. It is well recognized principle by now that the question of quantum of sentence requires utmost attention and thoughtfulness on the parts of the Courts. In this regard we respectfully refer the case of Mir Muhammad alias Miro v . The State (2009 SCMR 1 188) wherein august Supreme Court has held as under:- "It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the parts of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
The august Supreme Court of Pakistan has held in the case of Ansar Ahmad Khan Barki v. The State and another (1993 SCMR 1660 ), that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death. We are convinced that the appellant namely Sharaaf Khan son of Karam Daad, in the peculiar circumstance of this case, deserves consideration to the extent of his sentence one out of two provided under section 302(b) of P.P.C.
Moreover , it is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which had resulted into the death of Ghulam Ali, deceased, therefore, in our view the death sentence awarded to the appellant is quite harsh. It has been held in number of judgments of the august Supreme Court of Pakistan that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of the accused. While treating it a case of mitigation, we have fortified our view by a judgment of the august Supreme Court of Pakistan in the case of Ahmad Nawaz and another v. The State (2011 SCMR 593), wherein, at page 604, the Hon'ble apex Court of the country has been pleased to lay emphasis as under:- "10. The recent trend of the courts with regard to the awarding of penalty is evident from several precedents. In the case of Iftikhar -ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111), it was held that "This is settled law that provisions of sections 306 to 308, P.P.C. attracts only in the cases of Qatl-i-am d liable to Qisas under section 302(a), P.P.C. and not in the cases in which sentence for Qatl-i-amd has been awarded as Tazir under section 302(b), P. P.C. The difference of punishment for Qatl-i-amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C. respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C. and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circum stances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-i-amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCMR 4), Faqir Ullah v.
Khalil-uz-Zaman (1999 SCMR 2203 ), Muhammad Akram v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 3381"
The august Supreme Court of Pakistan has held in the case of Mst. Nazia Anwar v. The State and others (2018 SCMR 91 1), while considering the penalty for an act of commission of Qatl-i-amd, as under; "In these circumstances it is quite obvious to me that the motive asserted by the prosecution had remained utterly unproved. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder ."
A reference in this respect may be made to the cases of Nawab Ali v. The State (2019 SCMR 2009 ), Muhammad Akram alias Akrai v. The State (2019 SCMR 610), Iftikhar Mehmood and another v. Qais er Iftikhar and others (2011 SCMR 1165), Muhammad Mumtaz v. The State and another (2012 SCMR 267), Muhammad Imran alias Asif v. The State (2013 SCMR 782), Sabir Hussain alias Sabri v. The State (2013 SCMR 1554 ), Zeeshan Afzal alias Shani and another v. The State and another (2013 SCMR 1602 ), Naveed alias Needu and others v. The State and others (2014 SCMR 1464 ), Muhammad Nadeem Waqas and another v. The State (2014 SCMR 1658 ), Muhammad Asif v. Muhammad Akhtar and others (2016 SCMR 2035 ) and Qaddan and others v . The State (2017 SCMR 148 ).
22. In the light of above discussion, the conviction of the appellant namely Sharaaf Khan son of Karam Daad, as awarded by the learned trial court through the above mentioned judgment, is maintained but the sentence of death awarded to the appellant namely Sharaaf Khan son of Karam Daad under section 302(b), P.P.C. is altered to imprisonment for life. The compensation awarded by the learned trial Court under section 544-A of Cr.P.C. and sentence in default thereof is maintaine d and upheld. The other sentences awarded to the appellant namely Sharaaf Khan son of Karam Daad under sections 337-A(ii), P.P.C. and 449, P.P.C. are maintained and upheld. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, is also extended to the appellant namely Sharaaf Khan son of Karam Daad. All the sentences awarded to the appellant namely Sharaaf Khan son of Karam Daad shall run concurrently . Consequently , with the above said modification in the sentences, Criminal Appeal No.1 129-J of 2017 is hereby dismissed.
23. Murder Reference is answered in Negative and the death sentence of Sharaaf Khan son of Karam Daad is Not Confirmed .