RAJA SAJJAD AHMAD KHAN, J .---Taimoor alias Qazi, Mohammad Ameen, Imran and Nisar were tried in offences under sections 302, 377, 34, Azad Penal Code ("A.P .C") and 13/20/65 of the Arms Act, before District Court of Criminal Jurisdiction, Sudhnoti. ("the trial Court"). Vide judgment dated 31.08.2012, learned trial Court has acquitted the accused Nisar whereas other accused have been convicted and sentenced as under:-
(i) Taimoor alias Qazi; Death sentence as 'T azir' in of fence under section 302(b), A.P.C.
Three years imprisonment along with fine Rs.10,000./-in offence under section 13/20/65 of the Arms Act and in default thereof, he was ordered to undergo further imprisonment of 9 months, Rs.5,00,000/-(Five Lac rupees) as compensation under section 544-A, Cr .P.C. which shall be payable to the legal heirs of the deceased;
(ii) Mohammad Ameen and Imran; 10 years imprisonment each in of fences under sections 302, 34 A.P.C.; Compensation Rs.200,000/- each under section 54-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. was also extended to them, however , Ameen and Imran were acquitted of the charge in offence under section 13/20/65 of the Arms Act.
(iii) All the appellants were acquitted of the charge in of fences under sections 377 and 337, A.P.C.
3. Against the above judgment, the appellants, filed titled appeals for setting aside their conviction and sentences while the trial Court submitted a Reference seeking confirmation of death penalty awarded to Taimoor appellant. All the above appeals and reference arise out of common judgment and same FIR, hence, these are being consolidated and will be disposed of through this single judgment.
4. Brief facts forming background of the prosecution case are that complainant Mohammad Habib lodged a written report with Police Station, Pallandri on 26.03.2009, alleging therein that he is resident of Solitraan. His son namely Shoaib aged 20/21 years was working as laborer , since 8/9 days he started working with Taimoor Qazi at his sawmill, he used to go home at day time on and off and stayed at night at sawmill. On 26.03.2009 at about 9.15 a.m. his naked dead body was found near a stream "Pani-Basuta" near Girls High School, marks of violence and injuries on his head, face and other parts of the body were found. At previous night accused Taimoor alias Qazi, Rahim son of Mohammad Mutraza, Amee n son of Kareem, Imran son of Sub. Mehrban, Nisar son of Mohammad Ayyub, and Mistri Ramzan son of Ghulam Fareed were present at sawmill. They were oftenly use alcohol and they had doubt that son of complainant was disclosing their secrets to others, on accoun t of this, the accused murdered'
Shoiab Akhtar and threw his dead body in the stream.
5. On this report an FIR No.59/ 2009 under sections 302/34, A.P.C. was registered at Police Station, Pallandri and investigation was entrusted to Tariq Mehmood, Inspector Investigation branch, who went to the crime scene and recovered the dead body , blood from the wheat's field through recovery memo Ex.PD, Nokia Mobile phone 1110 of appellant Taimoor , through Ex.PF , sleepers, shalwar of deceased and charger pin of mobile of deceased through Ex. PE, Ex. PC and Ex. PG respectively . He prepared a site sketch Ex.PQ1 and also got prepared site plan Ex.PQ from Patwari Halqa P.W.14. He sent the dead body of deceased for autopsy which was conducted by Dr. Rashid Yaqoob P.W.15. Accused Taimoor , Imran, Ameen, Ramzan, Raheem and Nisar were arrested and on the pointation of accused Taimoor , a knife (URDU TEXT) Ex.PI, Qameez and Banyan of deceased were recovered through recovery memo Fx.PH, from sawmill while sticks were recovered at the instance of Imran, Nisar and Ameen through recovery memos Ex.PL, Ex.PK and Ex.PJ. The recovered items were sent to Chemical Examiner and according to report of Examiner human blood was found on earth, knife and clothes (Qameez and Banyan). During investigation, Mohammad Ramzan and Mohammad Rahim were extended benefit of section 169, Cr.P.C., however , it was found that on the night falling between 25/26.03.2009 deceased Shoaib Akhtar , was present at sawmill of accused Taimoor alias Qazi, where Taimoor , Imran, Nisar and Ameen were also present there. Initially all the four accused by pre-planning committed sodomy with Shoaib Akhtar deceased and Taimoor accused inflicted him with knife ( URDU TEXT ). On hue and cry of deceased they closed his mouth and nose which resulted into his death.
During investigation, section 377, A.P.C. and 13/20/65 of the Arms Act were also added. Motive behind the occurrence was that the appellants used to drink alcohol, and had suspicion that deceased Shoiab Akhtar was disclosing their secret to others.
6. After completion of usual investigation, the accused were sent to face trial through Challan on 20.05.2009 before the trial Court. The statements of appellants under section 242, Cr.P.C. were recorded on 30.06.2009, who denied the guilt and claimed trial. Thereafter , prosecution was ordered to produce evidenc e. The prosecution examined as many as 19 out of 20 witnesses cited in the challan. After recording prosecution evidence, the salient aspects of prosecution evidence were put to the appellants as required by section 342, Cr.P.C, who once again denied the guilt and claimed innocence and got recorded their statements on oath as provided under section 340(2), Cr .P.C.
7. At the end of the trial, accused Nisar was acquitted by extending benefit of doubt and appellants were found guilty of the charge thus, they were convicted and sentenced in the terms mentioned above vide impugned judgment dated 31.08.2012.
8. Sardar Waheed Arif, the learned counsel for appellants reiterated the arguments already taken in the memo of appeals and vehemently argued that appellants were falsely implicated in the case as FIR was lodged on 26.03.2009 while appellants were arrested on 27.03.2009 whereas in site plan recovery of weapon of offence knife ( URUD TEXT) and recovery of clothes were shown to have been made on 26.03.2009 on the pointation of accused Taimoor . The report of chemical examiner was also doubtful as recovered items were sent to Chemical Examiner after a delay of 25/26 days, parcels of shalwar and banyan were not made. The learned counsel pointed out that whole articles were not put to convicts in examination under section 342, Cr.P.C. which was a mandatory requirement. The cause of death was due to putting pressure on mouth and nose and no weapon of offence was recovered from the appellants, motive was also not proved. He further argued that prosecution produced close relative of the deceased and interested witnesses but their statements were also contradicted with each other , so their evidence was not reliable as it is a case of circumstantial evidence and not direct evidence in which chain of all links were not connected with each other , which makes the prosecution story being doubtful and it is settled law that a slightest doubt must goes in favour of accused, therefore, conviction and sentences awarded to appellants are liable to be set aside. In support of his arguments, the learned counsel placed reliance on 2019 SCR 105, 2019 SCR 149, 2018 SCR 260, 2015 SCR 533, 2007 SCR 332, 2010 PCr.LJ 1567, 2013 YLR 1418 , 2006 PCr.LJ 1359 Shariat Court (AJ&K), 2007 PCr.LJ 868 Shariat Court (AJ&K), 2014 PCr.LJ 374 Federal Shariat Court, 2009 SCR 252, 1981 PCr .LJ 486, 2007 SC (AJ&K) 77 and 2014 PCr .LJ 374.
9. Mr. Asghar Ali Malick, the learned counsel for complainant, while controverting the arguments of learned counsel for appellants, argued that FIR was promptly lodged, the names of the offenders were mentioned therein. He further submitted that although the case of prosecution mainly rests upon circumstantial evidence bur there are also two eye-witnesses namely Umer and Tahir who have seen the appellants quarreling with the deceased at the place of occurrence on the night of incident. The appellants were nominated in the FIR and complainant had no reason to implicate the appellants in a false case of murder of his only son by leaving the real culprit. He further argued that during investigation clothes of the deceased and weapon of offence were recovered on the pointation of appellants, Taimoor and others which were duly proved; that medical evidence and report of chemical examiner supports the prosecution case. He pointed out that all the recoveries and incriminating evidence was put to accused in their statements recorded under section 342, Cr.P.C. but appellants failed to clarify their position. He defended the impugned judgment on all counts and submitted that case against the appellants was proved through cogent evidence and learned court below has rightly convicted the appellants. Lastly he prayed for dismissal of appeals. In support of arguments the learned counsel placed reliance on PLD 2007 SC (AJ&K) 27, PLD 2004 SC 633, 2018 SCR 661, PLD 1992 SC AJK 21 1 and 1998 SCMR 1823 .
10. The learned Assistant Advocate General, fully owned and supported the arguments advanced by the learned counsel for the complainant and opposed the submissions made by learned coun sel for appellants. The learned State counsel further argued that prosecution prove its case through eye-account of the, occurrence, but there was strong circumstantial evidence on record to prove guilt of appellants with the commission of offence. According to the learned State counsel postmortem report also supports the prosecution version and it was further corroborated by recovery of weapons of offence and other incriminating material, therefore, conviction and sentences awarded to appellants may be maintained and appeals filed by them be dismissed. The learned Assistant Advocate General placed reliance on 1997 PCr.LJ 376 (A), 1996 PCr.LJ 616 (B), 2001 PCr.LJ 268 (B), 1995 SCMR 1793 , PLD 2007 SC (AJ&K) - 27, 2005 PCr .LJ 1606 and PLD 2004 SC(AJK) 32 .
11. We have heard the learned counsel for the parties, learned Assistant Advocate General at length and have gone through the record of the case and also guided ourselves from the case law cited at bar .
12. Admittedly no direct evidence is available in the instant case and prosecution case rests upon the circumstantial evidence, i.e. (i) Last seen evidence
(ii) Recovery of clothes (Qameez and Banian) on the pointation of appellant Taimoor
(iv) Recovery of weapon of of fence knife ( URDU TEXT) on the pointation of appellant aimoor
(v) Recovery of Cell phone of appellant Taimoor from the place of occurrence
(vi) Recovery of -blood stained clay from the wheat field ii) Recovery of dead body near the sawmill of appellant Taimoor
(viii) Recoveries of stick from Imran and Ameen appellants;
(ix) Medical report,
(x) Chemical Examiner report,
(xi) Statement of 164, Cr .P.C. Ramzan (P .W.13)
13. By now it is well settled that conviction can be recorded even in case carrying death sentence on the basis of circumstantial evidence if it excludes all hypothesis of innocence of accused, however , it should be accepted with great caution and be scrutinized minutel y for reaching conclusion that no plausible conclusion be drawn except guilt of the accused. It is duty of prosecution to prove every circumstance independently as is so connected with other circumstances which constitutes an unbroken chain that leads to no other inference but to the guilt of accused. This view finds support from a case titled "Mohammad Basharat v. Saqib Shah " reported in [2013 PCr.LJ 619 ] wherein Hon'ble apex Court in para. 8 has held as under:- "8. The superior Courts while appreciating the circumstantial evidence which is always considered to be a weak type of evidence, have held that there is no rule of law or practice to prevent a Court from sentencing an accused person to death merely on . the circumstantial evidence provided that in a case resting on a circumstantial evidence, no link in the chain should be missing and all the circumstances must lead to the guilt t of the accused.
The circumstantial evidence can only form basis for conviction when it is incompatible with the innocence of accused or the guilt of any other person and in no manner be incapable of explaining upon any reasonable hypotheses except that of the guilt of accused. Every link in circumstantial evidence should be proved by cogent evidence and if not then no conviction could be maintained or awarded to an accused."
In another case reported as Munawar Hussain v. Imran Waseem " reported in [2013 SCR 374] it has been observed as under:- "Even, death penalty can also be awarded on circumstantial evidence but it should be beyond any shadow of doubt. The chain of facts be such that reasonable inference can be drawn that accused has committed the offence.
All the facts established should be consistent only with the hypotheses of guilt of the accused. If any link is missing that will destroy the whole links of such evidence and all the links of the circumstances must lead to the guilt of the accused. It is not a such type of evidence, but it is sufficiency and quality which matters. The circumstantial evidence should be so interconnected that it forms such a continuous chain that its one end touches the dead body and the other the neck of accused thereby excluding all hypothesis of his innocence."
14. While considering the case of the prosecution on the touchstone of the above mentioned criteria we would firstly examine the evidence available on record for ascertaining the fact whether deceased remained in the company of accused before murder or not? P.W.1 complainant who is the father of deceased has deposed that his son was working with accused Taimoor at his sawmill and on the day of occurrence accused and deceased were together at the C sawmill. P.W.-8 Kaloo alias Sajjad who was the waiter at a nearby hotel states that he provided meal at sawmill where appellants and deceased were present together . Mistri Ramzan whose presence at the sawmill was admitted by the defense, also admits the presence of appellants and deceased at sawmill at the relevant time in his statement recorded under section 164, Cr.P.C. Appellant Taimoor got recorded his statement under section 340(2), Cr.P.C. wherein he clearly admits the presence of appellants and deceased at his sawmill. The statement of appellant Taimoor was recorded on oath and Court was authorized to use this statement against the accused person under section 28 of Islamic Penal Laws Act, 1974. It is proper to reproduce section 28 of I.P .L, 1974 which reads as under:- {{URDU TEXT}} From scanning the above evidence it can safely be concluded that deceased, Sohaib, remained alive in the company of appellants before he was murdered.
15. The prosecution also produced P.W.11 Tahir Hussain and P.W.12 Umar Hussain witnesses of facts occurred prior to murder . P.W Umar Hussain deposed that at the midnight of 25/26, March, he was sleeping in a room of hospital along-with Tahir Hussain and on hearing hue and cry he and Tahir Hussain came out and saw that appellants and deceased were quarrelling, they rescued the deceased but Taimoor accused extended threats, upon which they returned back to the room. He also deposed that on next day he went on spot along with complainant and remained there but surprisingly both these witnesses did not disclose the whole episode to anyone immediately after the occurrence and their statements under section 161, Cr.P.C. were recorded on 10.04.2009 with a delay of 16 days without furnishing any explanation which creates doubt upon their statements which cannot be relied upon in view of law laid down by the Superior Courts. In this regard we may refer a case reported as " Mohammad Basharat v . State (2013 PCr .LJ 619) wherein it has been observed that:- "14. Furthermore, two P.Ws., namely , Maqbool and Khurshid have been cited as witnesses in the calendar , who have last seen the accused. Both these witnesses in their statements under section 161, Cr.P.C. admitted that on the day of occurrence, they remained associated with the investigating agency but surprisingly their statements were recorded after a period of seven days and they did not disclose this fact immediately after the occurrence which creates some doubt that why these witnesses remained mum for such a long period."
In another case titled "Mohammad Younas v. The State and others" reported as (2019 SCR 149) the hon'ble apex Court has observed that:- "The silence of alleged eye-witnesses for a considerable time also cannot be ignored lightly . Moreover , the record shows that his statement under section 161, Cr.P.C, was not recorded at the relevant day rather the same was recorded on the next day of the occurrence and no plausible explanation in this regard has come on the record, whereas, under law the credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. is recorded with delay without of fering any reason."
16. We are aware that last seen evidence is generally regarded as weak evidence and even if it is believed to be true no conviction can be based on it unless there is some strong corroborative piece of evidence in support of prosecution. Our this view finds support from a case reported as "Mohammad Basharat v. Saqib Shah (2013 PCr.LJ 619 ) in which it has been held as under:- "13. Coming towards the last seen evidence, it may be observed that it is settled principle of law that the same is also one of the weakest type of evidence and cannot be relied Upon without strong corroboration."
17. Undeniably , naked dead body of deceased was recovered from a place near to sawmill of Taimoor appellant and only shaiwar of the deceased was found there which was seized through (Ex.PC). Later on, on the pointation of Taimoor appellant, blood stained Qameez and Banyan of deceased were recovered (Ex.PH) from the sawmill of Taimoor . From the place of occurrence cell phone of accused Taimoor was also recovered (Ex.PF) which fact was supported by the statement of Ramzan who stated in his statement under section 164, Cr.P.C. that on 26.03.2009 when he awake early in the morning, Taimoor was coming from outside, on his query Taimoor replied that he was searching his mobile which was lost at last night. Ramzan also stated that Taimoor also put a bag in the sawmill.
The Magistrate Pervez Iqbal who recorded his statement under section 164, Cr.P.C. also appeared before the trial Court and supported the prosecution version. On the pointation of Taimoor , weapon of offence, through which he caused sharp edge injuries to deceased, was also recovered from sawmill (Ex.PI). The prosecution also produced blood stained clay which was seized (Ex.PD) from the field of wheat where crop of wheat was found broken due to quarrel. It is proper to reproduce Ex.PD which read as under:- {{URDU TEXT}}
8. Along with the above recovery memos, it is proper to reproduce the post mortem report which was carried out by P.W.15 Dr .Rashid Yaqoob C.M.O. Palladnri, who found following 14 injuries on the person of deceased:--
(1) An incised wound right ear 03, c.m. long cutting skin and Cartilage (posterior -Aspect)
(2) An incised wound Triangular shaped diameter 1.8 c.m. Occipital region of scalp mid area at level of upper border of right ear .
(3) An incised wound 2.5 c.m. linear shaped above Rt eye-brow , horizontally placed.
(4) A red contused area covering both side of nose and bridge of nose with a crescent shaped
(5) A wedge shaped lacerated wound diameter 0.1, c.m. over left cheek.
(6) Two abrasions 3x4, c.m. and 4x5 c.m. over Rt cheek, red colored,
(7) An Abrasion Rt shoulder red 18x5, c.m.
(8) A contusion 6x4 c.m. blmis black over Rt scapular region
(9) Multiple abrasions front of chest, abdomen Rt groin (4 c.m. x 0.5 c.m., 20 c.m. x 4 c.m., .10 c.m. x 2 c.m. red,
(10) Multiple Abrasions over back 0.5 c.m. x 15 c.m., 20 c.m. x 3.5 c.m., 01 c.m. x 14 cm red
(11) Abrasions over both knee and shin red 3 x 2 c.m., 1 x 2 c.m., 2 x 4 c.m., 6 x 2 c.m. Abrasions 1.5 c.m. x 2 c.m., 1 x 1 c.m., 2 x 2 c.m. over dorsum of Rt foot, 2 x 3 c.m., 1 x 2 c.m. over dorsum of left foot red coloured.
(12) Multiple Abrasions over dorsal aspect of Rt elbow and forearm
(13) A contusion 6 x 3 c.m., red, over back of left side of chest.
The doctor opined as under:-
(1) Injuries Nos.1, 2, 3 are with sharp weapon, all other are blunt weapon injuries,
(2) All injuries are Ante mortem.
(3) No fatal injury is found on the body of Mr. Shoiab Akhtar son of Mohammad Habib. Therefore, viscera of dead body are sent m sealed boxes for chemical examiner and Histopathologist.
(4) Cause of death; In my opinion suffocation by foreful Closure of nostrils and mouth by hand or any other material caused Asphyxia and vogal inhibition leading to syncope and death., Final opinion will be given after receiving chemical examiner and Histopathologist report.
(5) Anal laceration is suggestive of act of sodomy with above named person.
In support of post mortem report the doctor got recorded his statement before the Court which remained unrebutted.
19. So far the argument of learned counsel for the appellants with regard to recovery witnesses that evidence of recovery witnesses namely Abid and Ameer Hussain could not be relied as then are close relative of deceased; that they are not independent witnesses and that their statements are full of contradictions, is concerned. Nothing has been, brought on record for believing that these witnesses had some enmity or motive to falsely implicate appellants. It is now well settled that mere relationship between witnesses and deceased is not enough to discard their evidence unless they have motive to falsely implicate the accused and each case should be decided keeping in view its peculiar facts. We have minutely scrutinized the statements of the recovery witnesses who were cross- examined at length but nothing was brought on record that recoveries were fake. We also found no contradiction in the statements of these witnesses regardi ng the recovery of incriminating articles. Minor discrepancies could not be termed as contradiction as contradiction means the negation of prosecution versio n. In this regard reference may be made to a case reported as "Waris Hussain Shah v. Abid Hussain Shah and other [2001 PCr.LJ 268] wherein the Hon'ble apex Court of State has observed that:- "Contradiction means negation of version of the prosecution case. Mere discrepancies in the detail of the facts do not amount to contradiction."
It has been held by the apex Court at page 280 of above referred judgment that: "This court has in plethora of cases has held that mere relationship of the witnesse s with deceased is not sufficient to discard the evidence."
20. The recovered items which were stained with blood i.e. clothes of deceased, knife (URDU TEXT) and clay were sent to Chemical examiner who reported H that all the above mentioned articles were stained with the human blood. The post mortem report and Chemical examiner's report fully support the prosecution case.
21. Although the appellants have been acquitted of the charge under section 377, A.P.C. by observing that it is not clear that who had committed the sodomy with the deceased but whole scheme of happenings reveals that there was a struggling between appellants and deceased for the reason that appellants were trying to overpower the deceased for committing sodomy while he was resisting. During this struggle deceased made hue and cry which was heard by the P.W.6 Ameer son of Ibrahim, P.W.7 Hanif, P.W.9 Irfan Rasheed and P.W.10 Amir Aziz who got recorded their statements under section 161, Cr.P.C. on 26.03.2009 immediately after the occurrence, and narrated as it is before the Court which also remained unrebutted as no cross-examination was conducted which shows that defense has admitted their statements as correct.
22. Having considering the last seen evidence, corroborated by the other pieces of evidence, keeping in view the location and place of occurrence, we reached at the conclusion that all the circumstances are interlinked which clearly connect the appellants with crime. The appellants got recorded their statements under section 340(2), Cr.P.C. This Provision enables an accused to explain his position especially where no direct evidence is available and accused had the exclusive knowledge about the occurrence but appellants in their statements recorded under section 340(2), Cr.P.C. simply denied their guilt mid failed to rebut their company with deceased at the relevant time and in view of Article 21 of Qanun-e-Sha hadat Order , 1984, also failed to furnish any explanation that when they separated from the deceased or on which point and where deceased was separated from them. In this regard reference may be made to a case reported as M. Amin v . State" (2012 YLR 1360), wherein it has been held that:-- "It would also be relevant to mention here that appellant Nasrullah failed to furnish a plausible explanation that on which point and where the deceased was separated from him and, thus, he could not discharge the onus of burden lies on him in view of the provisions as contained in Article 21 of the Qanun-e-Shahadat Order , 1984.
This view is further fortified from another ease reported as "Khurshid v. The State" PLD 1996 SC 305 wherein apex Court of Pakistan has held as under:-- "I may observe that while appraising the circumstantial evidence the court is to keep in mind the location of the incident. If the place of incident is a place where no witness was available and the accused had the exclusive knowledge about the incident, the simplic iter denial on the part of the accused will not be sufficient to nullify the circumstantial evidence of the nature which directly connects him with the commission of the offence charged with.
But he should raise a plea of the nature which on being tested on the touch-stone of Probabilities warrants a reasonable hypothesis of the accused's innocence."
23. It was also argued on behalf of appellants that report of Chemical Exam iner cannot be relied upon as recovered items were sent to Chemical Examiner with a considerable delay and report of serologist was also not placed on record. The argument of learned counsel has no substance as record reveals that parcel of recovered items remained in safe custody in "Malkhana" and after required proceeding and precaution, were dispatched to Forensic Science Laboratory . Sending the recovered items to examiner with delay or non sending these articles to serologist does not make the prosecution case doubtful as defense never raised any objection that recovered articles were substituted or these were not stained with deceased's blood. In this regard we refer a case reported as "Mohammad Tasleem and another v. The State and another" (2014 SCR 893) wherein at page 910 it has been observed that: "Although the report of Serologist is not on record, however , neither defence raised am such objection in this regard nor they made any suggestion. Even otherwise, it was not the case of defence that the accused were not wearing black clothes at the time of occurrence, therefore, absence of the Serologist report makes no dif ference."
In another case reported as Nawaz and another v . State and another [2003 YLR 2926 ] it has been held that:- It has held by the superior Courts that sending of recovered articles to the Exper t with delay can only be termed fatal to the prosecution case where the defence has been able to establish malice or the empties had been substituted to match the crime weapon. If the dispatch is found to have been delay ed, said acts of the Investigating Officer can be termed as an irregularity committed during the course of investigation but it is a settled principle of law, that the procedural defects and the irregularities and sometimes even the illegalities committed during the course of investigation shall not demolish the prosecution nor vitiate the trial. In the instant case no malice has been attributed to the Investigating Officer for sending the articles with delay nor the defence had alleged substitution of crime weapon and emptie s. Mere delay in the absence of malice on the part of the Investigating Officer, cannot be made a good ground for rejecting their value and worth."
24. Adverting to the argument of learned counsel for appellants that appellant Taimoor was arrested on 27.03.2009 whereas site plan prepared by I.O. on 26.03.2009 reveals that recoveries were made on the pointation of appellant Taimoor on 26.03.2009 creates serious doubt. In this regard it may be mentioned that site plan is never considered as a substantive piece of evidence. The recoveries memos (Ex.PI and Ex.PH) reveals that on the pointation of Taimoor appellant recoveries were made on 28.03.2009 but it was mentioned in site plan dated 26.03.2009 which was negligence and inefficiency of Investigating Officer. Be that at it may be, Court has to form its opinion according to its own satisfaction keeping in view the facts and circumstances of the case and mere mistakes or technical lapses of Investigating Officer or prosecution should not be considered a ground for creating doubt. In this regard we may also refer a case reported as "Khurshid v. State PLD 1996 SC 305 wherein the Hon'ble apex Court of Pakistan while dealing with the identical proposition has held as under:- "I may further observe that in criminal cases though the Court supposed to follow the well-settled principles of Criminal Jurisprudence, namely that an accused person is presumed to be innocent, that the prosecution is to prove a criminal case against an accused person beyond reasonable doubt and in case two views are possible; the view whim favour the accused person, should be preferred; and that all benefit of doubts should be extended to the accused, but, at the same time, the Courts should also take notice of the changing circumstances of the present days. Even in case where eye-witnesses are available they refuse to appear as witnesses in support of the prosecution case; either because of fear or on account of being won over by the accused party . The Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the investigating agency/prosecution, provided that same have not prejudiced the accused in the fair trial. I may also state that the people are losing faith in the criminal judicial system for the reason that in most of the criminal cases the criminals get away without being punished on technicalities."
In another case titled Kabir Shah v. State (PLD 1984 (SCAJK) 82) Hon'ble apex Court in para 18 has held as under:-- "It may be pointed out that the Investigat ing Officer in this case has not been vigilant to conduct the investigation properly , but it is well-settled principle of law that mere irregularities in the investigation or inaction of the police would not demolish the prosecution case, if otherwise the offence against an accused stands proved in the light of the legal evidence on the record."
25. In view of the above, we reached at the conclusion that learned trial Court while appreciating the circumstantial evidence has rightly concluded that there was sufficient circumstantial evidence which connect the appellants with the commission of of fence of murder of son of complainant.
26. Now we come to the point whether sentences have rightly been awarded to the appellants or not? It is well settled principle of law that when an offence is proved, maximum sentence provided for the offence should be awarded, however , Court has a discretion to award sentence keeping in view the circumstances of each case justifying the severity or leniency as laid down by the apex Court in case reported as 'Waris Shah v. Abid Hussain Shah (2001 PCr .LJ 268) as under:- "19. There is no doubt that when an offence is proved, it has to be met with the maximum sentence provided therefor . However , there is no yard stick to restrict or curb the discretion of the trial Court while passing the sentence.
It is the circumstances of each case which justify the severity or leniency in passing the legal sentence, unless the law itself provides the minimum sentence, in which case the discretion does not matter ."
27. In our view, appellant Taimoor was the main accused who played a pivotal role in brutal murder of Shoaib deceased who was working with him' at his sawmill and remained in the company of appellants prior to his murder .
'The clothes of deceased and weapon of offence were recovered on the pointation of Taimoor from his sawmill, hence he was rightly sentenced to death under section 302(b), A.P.C. as charge of murder is proved against him beyond any shadow of doubt and no mitigating circumstances to commute death sentence being available, so keeping in view the aim and object of the punishment he is not entitled for any leniency as it has been held by the apex Court in a case reported as "Mohammad T ahir Aziz v . The State and another [2009 SCR 71] that:- "The basic object of punishment in civilized society is to create deterrence among the citizens so that no one should dare to commit the slay of any person. The sentence of death shall create deterrence in the society due to which no other person shall dare to commit the offence of murder . If in any proved case lenient view is taken, then peace, tranquility and harmony of society will be jeopardized and vandalism shall prevail in the society ."
In view of the above, the sentence of death and Rs.500,000/- as compensation awarded to Taunoor appellant are liable to be maintained.
28. So far as the case of appellants Ameen and Imran is concerned regarding quantum of sentence. In this regard it may be mentioned here that role of these appellants is distinguishable as compare to Taimoor Qazi, appellant. So keeping in view the facts and circumstances of the case appellants Ameen and Imran are entitled to get the benefit of doubt on the question of sentence beeping in view the rule of law laid down in a case titled "Israr Ali v. State"
[2007 SCMR 525] wherein it has been observed that accused person is also entitled to get benefit of doubt on the question of sentence and benefit of doubt can be pressed also in matter of sentence.
29. Therefore, the conviction of appellants Mohammad Ameen and Imran is maintained, however , to meet the ends of justice imprisonment awarded to them by trial Court altered into the sentence already undergone. They shall pay compensation as ordered by the trial Court.
The appeals stand dismissed with the aforesaid modification of sentences awarded to Imran and Mohammad Ameen appellants while the sentence of death and compensation under the provisions of section 544-A, Cr.P.C.
Rs.5,00,000/- (five lac) awarded to Taimoor appellant is maintained and the reference is answered in affirmative. A copy of judgment shall be annexed with other relevant files.