SADIQ MAHMUD KHURRAM, J. Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf (convicts) were tried by the learned Additional Sessions Judge, Gujranwala in case FIR No. 190 of 2018 dated 08.06.2018 registered at Police Station Eminabad District Gujranw ala in respect of offences under sections 302, 324, 394, 337-F(i), 337-F(iii ) and 34 P.P.C. for committing the Qatl-i-Amd of Muhammad Aslam son of Muhammad Sadiq (deceased) during robbery . The learned trial court vide judgment dated 29.06.2019 convicted Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf (convicts) and sentenced them as under: Shakeel Shah son of Bashir Shah: i) Death under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Aslam son of Muhammad Sadiq (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased. (It had been mentioned in Paragraph 22 of the judgment by the learned trial court that the convict was being convicted under section 302(b) P .P.C.); The convict was ordered to be hanged by his neck till dead; ii) Imprisonment for life under section 394 PPC and directed to pay fine of Rs.50,000/- and in case of default thereof, the convict was directed to undergo further four months of simple imprisonment; iii) Rigorous Imprisonment for ten years under section 324 PPC and directed to pay fine of Rs.50,000/- and in case of default thereof, the convict was directed to undergo further four months of simple imprisonment; iv) Rigorous Imprisonment for one year under section 337-F(i) P.P.C. for the injuries caused to Irshad Bibi (PW-14) and directed to pay Daman of Rs.20,000/- to the injured Irshad Bibi (PW -14) ; v) Rigorous Imprisonment for three years under section 337-F(iii) P.P.C. for the injuries caused to Irshad Bibi (PW- 14) and directed to pay Daman of Rs.20,000/- to the injured Irshad Bibi (PW -14); Muhammad Rafaqat alias Gola son of Muhammad Ashraf: i) Imprisonment for life under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Aslam son of Muhammad Sadiq (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased(It had been mentioned in Paragraph 22 of the judgment by the learned trial court that the convict was being convicted under section 302(b) P .P.C.); ii) Imprisonment for life under section 394 PPC and directed to pay fine of Rs.50,000/- and in case of default thereof, the convict was directed to undergo further four months of simple imprisonment ; iii) Rigorous Imprisonment for ten years under section 324 PPC and directed to pay fine of Rs.50,000/- and in case of default thereof, the convict was directed to undergo further four months of simple imprisonment; iv) Rigorous Imprisonment for one year under section 337-F(i) P.P.C. for the injuries caused to Irshad Bibi (PW-14) and directed to pay Daman of Rs.20,000/- to the injured Irshad Bibi (PW -14) ; v) Rigorous Imprisonment for three years under section 337-F(iii) P.P.C. for the injuries caused to Irshad Bibi (PW- 14) and directed to pay Daman of Rs.20,000/- to the injured Irshad Bibi (PW -14); The convict namely Muhammad Rafaqat alias Gola son of Muhammad Ashraf was extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898.
2. Feeling aggrieved, Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf (convicts) lodged Criminal Appeal No. 53076-J of 2019 through jail, assailing their convictions and sentences. The learned trial court submit ted Murder Reference No.207 of 2019 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Shakeel Shah son of Bashir Shah. We intend to dispose of the Crim inal Appeal No.53076-J of 2019 and Murder Reference No.207 of 2019 through this single judgment.
3. Precisely the facts necessary , as stated by Shamshad Aslam Bhinder (PW-13), the complainant of the case, are as under:- "My father was ASI in police. On 08.06.2018, I alongwith my mother Irshad Bibi, deceased Muhammad Aslam, my uncle Muhammad Ashraf and his Saifullah had gone to village Nagray Dadan for condolence. On our return, my father and my mother were on one moto rcycle, whereas my uncle Muhammad Ashraf and his son Saifullah were on another motorcycle were going to our village. At about 11:30 AM, when we reached near peter engine of Buttaran in the area of Bhaloowali, two unknown accused persons on motorcycle Honda 125 red colour without registration number came there from our back side. They on gun point intercepted us and threatened to give everything to them which ever was in our possession. On which, my father Muhammad Aslam resisted. Due to resistance, accused persons present before the court made straight firing at us. One of their fires hit under left armpit of my father , whereas second fire hit at the right knee of my father . My mother sustained firearm injuries on her right hand and right thigh. Due to the firing, my mother as well as father injured at the spot. Accused persons fled away after making firing towards Dewan Road. I took my father as well as mother in injured condition RHC Eminabad from where doctor preferred my mother to DHQ hospital Gujranwala, whereas my father succumbed to the injuries. The occurrence was witnessed by me, Muhammad Ashraf, Saifullah and my mother Mst. Irshad Bibi. I moved an application Ex.PCC for registration of case, which bears my thumb impression and signatures.
On the same day, I got recorded my supplementary statement and got recorded features of the accused persons, which could not be recorded in FIR due to grief because of death of my father and injuries of my mother . In that statement, I got recorded that one accused had blackish complexion, middle height having age 27 to 28 years, whereas the other accused having weatis h complexion, tall in height having age 25 to 26 years. The first accused of middle height had fired at my father which hit at left armpit which went through and through. Said accused fired at hand of my mother , which injured her right hand and went through and through. Whereas the other accused fired which hit at right knee of my father . He made second fire which hit at right thigh of my mother .
From the place of occurrence, 1.O collected blood stained earth, made its parcel and took it into possession through recovery memo. Police also collected crime empties from the place of occurrence and took into possession through recovery memo. The I.O also prepared un-scaled site plan of place of occurrence on our information and pointation. Draftsman came at the place of occurrence on 10.06.2018 and took rough notes on our pointation. I.O also recorded our statements under Sec.161 Cr .P.C.
On 21.06.2018, I produced blood stained last worn clothes i.e. Qameez P 7, Shalwar P-8 and Chaddar P-9 to the I.O, who took them into possession through recovery memo Ex.PS, attested by me and Sikandar Ali 305/HC.
On 25.06.2018, 1 alongwith Saifullah s/o Ashraf and Irshad Bibi, my mother participated in identification parade held in Central Jail Gujranwala where 1 identified accused Shakeel Shah. I got recorded my statement before Presiding Officer of identification parade and pointed out that accused Shakeel Shah present before the court fired by pistol 30-bore at the left armpit of my father and also fired at right hand of my mother . Both these fires went through and through. I.O. recorded my statement.
On 02.07.2018, I alongwith Saifullah and my mother Irshad Bibi participated in the identification parade held in Central Jail Gujranwala where I identified accused Rafaqat standing at the serial No.6 of the row. I got recorded my statement before Presiding Officer of identification parade and pointed out that accused Rafaqat present before the court fired by pistol 30-bore at the right knee of my father and also fired from his pistol at right thigh of my mother .
I.O recorded our statement.
On 08.07.2018, I alongwith Saifullah PW joined the investigation where accused Shakeel Shah, during investigation disclosed that he could get recovered pistol 30-bore from the dera of Ehsan Gujjar lying in pigeon cage at the roof of the dera. The accused led to the recovery and got recovered pistol P-11. When it was unloaded then three live bullets P-12/1-3 were also recovered. The recovered articles were secured in parcel and taken into possession through recovery memo Ex.PY , attested by me and Saifullah. I.O recorded my statement. On the same day, said accused also disclosed possession of the motorcycle which he could get recovered from his house. In light of his disclosure, the accused led to his house Kashmir Colony Chanda Qila from where he got recovered motorcycle red colour bearing registration No.SGK/2459, chassis No.R002918 & engine No.EA685130 P-10 which was taken into possession through recovery memo Ex.PU, attested by me and Saifullah. I.O recorded our statement in this regard. On the same day, accused Rafaqat during interrogation in our presence disclosed possession of pistol 30-bore. He led us as well as police party to the dera of Ehsan Gujjar and got recovered pistol 30-bare P-13 from cage of rabbits lying in courtyard of the dera. When it was unloaded then four live bullets P-14/1- 4 were also recovered. These articles were taken into possession through recovery memo Ex.PZ, which was signed by me and Saifullah PW . 1.O recorded our statements in this regard."
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 appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf were sent to face trial. The learned trial court framed the charge against the accused on 21.01.2019 to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as fifteen witnesses recorded. The ocular account of the case was furnished by Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW- 15). Muhammad Afzal 1075/C (PW-2) stated that on 08.06.2018, he escorted the dead body of the deceased to the hospital for post mortem examination and the Medical Officer handed over the last worn clothes of the deceased to the Investigating Officer of the case after post mortem examination. Sikandar Ali 305/HC (PW-3) stated that on 08.06.2018, he recorded the formal F.I.R (Exh.PC). Shahid Ali 2846/HC (PW-6) stated that on 08.06.2018, the Investigating Officer of the case handed over to him two sealed parcels containing the empties and the blood stained earth recovered from the place of occurrence and on 13.06.2018, he handed over the said parcels to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Basharat Ali 2321/HC (PW-7) stated that on 08.07.2018, the Investigating Officer of the case handed over to him two sealed parcels said to contain weapons recovered from the appellant and on 11.07.2018, he handed over the said parcel to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Bilal Ahmad Bhatti, draftsman (PW-9) prepared the scaled site plan of the place of occurrence (Exh.PH). Shoukat Ali (PW-10) identified the dead body of the deceased at the time of post mortem examination. Imtiaz Ali Baig, Sub Registrar (PW-5) got conducted the test ident ification parade proceedings on 25.06.2018, related to the identification of the appellant namely Shakeel Shah by the witnesses and prepared his report (Exh.PF/1-10) and got conducted the test identification parade proceedings on 02.07.2018 related to the identification of the appellant namely Muhammad Rafaqat alias Gola by the witnesses and prepared his report (Exh.PE/1-7). Aftab Haider , SI (PW-11) investigated the case from 08.06.2018 till 31.08.2018, arrested the appellant Shakeel Shah on 11.06.2018 and arrested the appellant namely Muhammad Rafaqat alias Gola on 23.06.2018 and detailed the facts of his investigation in his statement before the learned trial court.
6. The prosecution also got Dr. Rashid Hussain (PW-4) examined, who on 08.06.2018 was posted as Medical Officer at T.H.Q. hospital Kamoke and on the same day conducted the postmortem examination of the dead body of Muhammad Aslam son of Muhammad Sadiq (deceased). Dr.Rashid Hussain (PW-4)), on examining the dead body of Muhammad Aslam son of Muhammad Sadiq (deceased) observed as under:- "INJURIES No.1. Lacerated wound 2 cm x 1/4 cm x scalp deep on the posterior aspect of head No.2 A firearm lacerated wound of entry 0.5 x 0.5 cm on the lateral aspect of left chest. Middle part at the level of nipple mid axillary line.
No.3. A firearm lacerated wound of exit 1 cm x 1 cm on the back of chest, on left side just lateral to vertebral column.
No.4. Lacerated wound 1 cm x 1 cm into skin deep on the back of chest, middle part, 2 cm from injury No.3.
No.5. A firearm lacerated wound of entry 1.5 cm x 1 cm x going deep (oval shaped) on the medial aspect of right knee with clinical fracture of night proximal Tibia.
No.6 A firearm lacerated wound of exit 1.5 cm x 1 cm on the antero- lateral aspect of right knee.
OPINION After careful external as well as internal postmortem examination of the dead body , I was of the opinion that death in this case occurred due to injury no.1 and 2 consequent upon firearm injury resulting in the damage of left lung and heart, leading to severe hemorrhage and extravasation of blood, resulting in a shock like condition and ultimately to the cardio-pulmonary arrest. All the injuries mentioned are ante-mor tem and injury No 1 and 2 can immediately cause death in ordinary course of nature."
The prosecution also got Dr.Zaryab Ali (PW-12) examined, who on 08.06.2018 was posted as House Officer at D.H.Q. hospital Gujranwala and on the same day, examined the prosecution witness namely Irshad Bibi (PW-14) and noted the presence of firearm injuries on the wrist of her right hand and her right thigh. The prosecution also got Dr.Abdul Shakoor (PW-8) examined, who on 23.06.2018, was posted as Radiologist at D.H.Q hospital Gujranwala and on the same day examined the prosecution witness namely Irshad Bibi (PW-14) and prepared his report (Exh.PG) and exposed the Radiographs (P-4/1-4). The prosecution also got Dr. Fatima Sikandar (PW-1) examined, who on 21.06.2018 was posted as Woman Medical Officer at T.H.Q. hospital Eminabad and on the same day examined the prosecution witness namely Irshad Bibi (PW-14) and noted the presence of firearm injuries on the wrist of her right hand and her right thigh and prepared the Medico Legal Examination Certificate (Exh.P A).
7. On 24.06.2019, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Muhammad Ashraf, Yasir Mahmood and Dr. Tanvir as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of the Punjab Forensic Science Agency , Lahore (Exh.PDD and Exh.PEE).
8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, the appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf replied that they were innocent and had been falsely involved in the case due to suspicion. The appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf further stated that they had not committed any offence and were not involved in the occurrence in any manner . The appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf opted not to get themselves examined under section 340(2) Cr .P.C. and did not adduce any evidence in their defence.
9. At the conclusion of the trial, the learned Additional Sessions Judge, Gujranwala, convicted and sentenced the appellants as referred to above.
10. The contention of the learned counsels for the appellants precisely is that the whole case is fabricated and false. The learned counsels for the appellants submitted that the prosecution rema ined unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. The learned counsels for the appellants further contended that the statements of prosecution witnesses were not worthy of any reliance. The learned counsels for the appellants also submitted that the appellants had no connection with the occurrence. The learned counsels for the appellants also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake procee dings. The learned counsels for the appellants finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of a doubt.
11. On the other hand, the learned Deputy Prosecutor General along with the learn ed counsel appearing on behalf of the complainant of the case contended that the prosecution has proved its case beyond the shadow of any uncertainty by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case further argued that the appellants were responsible for the death of Muhammad Aslam (deceased) and for causing injuries to the prosecution witness namely Irshad Bibi (PW-14). The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case further argued that the recoveries from the appellants also corroborated the prosecution account. The learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case contended that there was no occasion for the prosecution witnesses to substitute the real offenders with the innocent in this case. Lastly , the learned Deputy Prosecutor General along with the learned counsel appearing on behalf of the complainant of the case prayed for the rejection of appeals.
12. We have heard the learned counsels for the appellants, the learned Deputy Prosecutor General, the learned counsel appearing on behalf of the complainant of the case and with their assistance, perused the record and evidence recorded during the trial.
13. It was indeed an unfortunate incident which resulted in the death of Muhammad Aslam (deceased) and receiving of injuries by the prosecution witness namely Irshad Bibi (PW-14), during a botched attempt by the appellants to commit robbery . The prosecution, in order to prove the identities of the appellants as being the accused involved in the occurrence, got the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) examined, who all stated that they had identified the appellants during the test identification parade proceedings. Imtiaz Ali Baig, Sub Registrar (PW-5), then acting as Special Magistrate, got conducted the test identification parade proceedings on 25.06.2018 related to the identification of the appellant namely Shakeel Shah by the witnesse s and prepared his report (Exh.PF/1-1 0) and got conducted the test identification parade proceedings on 02.07.2018 related to the identification of the appellant namely Muhammad Rafaqat alias Gola by the witnesses and prepared his report (Exh.PE/1-7). Facts which establish the identity of any person whose identity is relevant are, by virtue of Article 22 of the Qanun-e-Shahadat, 1984, always relevant. The term 'identification' means proving that a person before the Court is the very same that he is alleged, charged or reputed to be. Identification is almost always a matter of opinion or belief. With regard to a criminal offence, identification has a two-fold object: first, to satisfy the investigating authorities, before sending a case for trial to Court, that the person arrested, but not previously known to the witnesses, was the one or those who committed the crime, second, to satisfy the Court that the accused was the real offender concerned with the crime.
Identification proceedings are therefore as much in the interest of the prosecution as in the interest of the accused.
An identification parade is held in the course of investigation of an offence for the purpose of enabling the witnesses to identify the persons who are concerned with the offence; they are not held merely for the purpose of identifying persons irrespective of their connection with the offence; the witnesse s are explained the purpose of holding these parades and are asked to identify the persons which are concerned in the offence. But it is obvious that if before the Court a witness pointe d to a stranger and stated that he was the offender , there would be no guarantee of the truth of his assertion. Consequently in order to have some assurance of the truth, test identification is held that is to say, the witness at an earlier stage is confronted with the alleged offender , not standing alone but mixed with a number of innocent persons of the same age-group and of similar build and features. It is to give credence to the evidence of a witness who does not know the accused from before, subsequent to the commission of the offence, that a test identification is held, since, without it, the evidence of the witness concerned would have little value. Of course, the substantive evidence, i.e., evidence on which alone the Court can base its order of conviction or acquittal, is that given by the witness before the Court, but the value of his deposition there of having identified the accused in the act of the crime is of little consequence. Before the Court can accept such identification as sufficient to establish the identity of the accused, it is very necessary that there be reliable corroborative evidence, and the corroborative evidence which the Court is entitled to accept in such cases is that of a test identification parade conducted with due precautions. In short, a test identification is designed to furnish evidence to corroborate the evidence which the witness concerned tenders before the Court. We have noticed that the test identification parade proceedings were conducted as per the law. Imtiaz Ali Baig, Sub Registrar (PW-5), then acting as Special Magistrate , got conducted the test identification parade proceedings on 25.06.2018 related to the identification of the appellant namely Shakeel Shah by the witnesses and prepared his report (Exh.PF/1-10) and during the said test identification parade proceedings , the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) all duly and correctly identified the appellant namely Shakeel Shah out of the dummies who had been placed in the line for the purpose of identification. Imtiaz Ali Baig, Sub Registr ar (PW-5), then acting as Special Magistrate, adopted all the precautions for ensuring that the appellant namely Shakeel Shah did not stand out due to some particular features from the other prisoners who had been placed with him in the same line for the purpose of identification of the real accused by the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW- 15). During cross-examination, Imtiaz Ali Baig, Sub Registrar (PW-5), then acting as Special Magistrate, explained that at the time of holding of the test identification parade proceedings with regard to the appellant Shakeel Shah on 25.06.2018, he had made sure that the features and ages of dummies being used for the test identification parade proceedings resembled that of the appellant Shakeel Shah. Similarly , Imtiaz Ali Baig, Sub Registrar (PW-5), then acting as Special Magistrate, also got conducted the test identification parade proceedings on 02.07.2018 related to the identification of the appellant namely Muhammad Rafaqat alias Gola by the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) and prepared his report (Exh.PE/1-7) and during the said test identification parade proceedings , the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) all accordingly and rightly identified the appellant namely Muhammad Rafaqat alias Gola out of the dummies who had been placed in the line for the purpose of identification. Imtiaz Ali Baig, Sub Registrar (PW-5), then acting as Special Magistrate, implemented all the safeguards for guaranteeing that the appellant namely Muhammad Rafaqat alias Gola did not stand out due to some particular features from the other prisoners who had been placed with him in the same line for the purpose of identification of the real accused by the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15). During cross-examination, Imtiaz Ali Baig, Sub Registrar (PW-5), then acting as Special Magistrate, explained that at the time of holding of the test identification parade proceedings with regard to the appellant namely Muhammad Rafa qat alias Gola on 02.07.2018, he had made sure that the features and ages of dummies being used for the test identification parade proceedings resembled that of the appellant Muhammad Rafaqat alias Gola and stated as under:- "I recorded that accused Rafaqat was un-shaved. I recorded that other dummies were also un-shaved. I have mentioned their ages. I have recorded ages of dummies No.7 & 8 and also mentioned that they were un-shaved. "
We ourselves have also examined the report (Exh.PE/1-7) relating to the identification of the appellant namely Muhammad Rafaqat alias Gola and the report (Exh.PF/1-10) relating to the ident ification of the appellant namely Shakeel Shah prepared by Imtiaz Ali Baig, Sub Registrar (PW-5), then acting as Special Magistrate, on 02.07.2018 and have noted that a sufficient number of dummies were used during the said test identification parade proceedings and furthermore not only the ages but also the occupation, physical features and addresses of the dummies were also mentioned in the report (Exh.PE/1-7) relating to the identification of the appellant namely Muhammad Rafaqat alias Gola and the report (Exh.PF/1-10) relating to the ident ification of the appellant namely Shakeel Shah. We have satisfied ourselves that Imtiaz Ali Baig, Sub Registrar (PW-5), then acting as Special Magistrate, while holding the test identification parade proceedings on 25.06.201 8 relating to the identification of the appellant namely Shakeel Shah and while holding the test identification parade proceedings on 02.07.2018, relating to the identification of the appellant namely Muhammad Rafaqat alias Gola, adopted all the relevant measures so as to exclude any possibility that the prosecution witnesses namely Shamshad Aslam Bhinder (PW- 13), Irshad Bibi (PW-14) and Saifullah (PW-15), because of the differences in the ages and the features of the appellants and the dummies used during the test identification parade procee dings, could have gained any advantage enabling them to pick out the accused during the test identification parade proceedings. We have also noted that both the test identification parade proceedings were held reasonably soon after the arrest of the appellants ruling out any possibility of the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) having any opportunity to see the appellants in custody . Furthermore, no evidence has been brought on record to prove that the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifulla h (PW-15) had visited the jail premises prior to the holding of the two test identification parade proceedings . We have also noted that all the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) also mentioned the roles of the accused played by them during the occurrence while identifying them during the test identification parade proceedings. Not only the prosecution witnesses namely Shamsha d Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) mentioned the roles of the appellants during the test identification parade proceedings but in their statements recorded by the learned trial court also gave evidence with respect to the roles which were played by the appellants during the occurrence . The prosecution witness namely Shamshad Aslam Bhinder (PW-13) in his statement before the learned trial court stated as under:- "On 25.06.2018, 1 alongwith Saifullah s/o Ashraf and Irshad Bibi, my mother participated in identification parade held in Central Jail Gujranwala where 1 identified accused Shakeel Shah. I got recorded my statement before Presiding Officer of identification parade and pointed out that accused Shakeel Shah present before the court fired by pistol 30-bore at the left armp it of my father and also fired at right hand of my mother . Both these fires went through and through. I.O. recorded my statement.
On 02.07.2018, I alongwith Saifullah and my mother Irshad Bibi participated in the identification parade held in Central Jail Gujranwala where I identified accused Rafaqat standing at the serial No.6 of the row. I got recorded my statement before Presiding Officer of identification parade and pointed out that accused Rafaqat present before the court fired by pistol 30-bore at the right knee of my father and also fired from his pistol at right thigh of my mother . I.O recorded our statement. " (emphasis supplied)
The prosecution witness namely Irshad Bibi (PW-14) in his statement before the learned trial court stated as under:- "I alongwith my son Shamshad and Saifullah, nephew of my husband went to Central Jail on 25.06.2018 for identification of the accused persons. There, in presence of Judge Sahib I identified accused standing at No.7 in row of 8-persons. The PW pointed out towards Shakeel Shah and said that he committed murder of my husband by causing firearm injury at his left armpit. I got recorded my statement before Judge Sahib about the role of the accused. I resisted said accused and requested to avoid firing but he fired at my right hand .
I got recorded this role of accused before Judge Sahib. Then on 02.07.2018, we, my son Shamshad, said Saifullah and I were again summoned at Central Jail, Gujranwala. In presence of Judge Sahib, I identified accused present before the court Rafaqat standing at serial No.6 in the row. I got recorded my statement before Judge Sahib and mentioned role of the accused. This accused fired at right knee of my husband which went through and through. The accused also had fired at my right thigh where led of the bullet is still present." (emphasis supplied)
The prosecution witness namely Saifullah (PW -15) in his statement before the learned trial court stated as under:- "On 25.06.2018, I alongwith Shamshad and Irshad Bibi participated in identifica tion parade held in Central Jail Gujranwala where I identified accused Shakeel Shah. I got recorded my statement before Presiding Officer of identification parade and pointed out that accused Shakeel Shah present before the court fired by pistol 30- bore at the left armpit of my uncle and also fired at right hand of Mst. Irshad Bibi. Both these fires went through and through. I.O recorded my statement.
On 02.07.2018, I alongwith Shamshad and Mst.Irshad Bibi participated in the identification parade held in Central Jail Gujranwala where I identified accus ed Rafaqat standing at the serial No.6 of the row. I got recorded my statement before Presiding Officer of identification parade and pointed out that accused Rafaqat present before the court fired by pistol 30-bore at the right knee of my uncle and also fired from his pistol at right thigh of Mst. Irshad Bibi. I.O recorded our statement." (emphasis supplied)
During the course of cross-examination, the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) remained consistent and nothing fruitfu l for the appellants cropped up during the same. The prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) also explained that they had mentioned the features of the accused who had committed the occurrence in their statements to the police. None of the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifulla h (PW-15) were confronted with any of their previous statements so as to bring on record any improvement by the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) to their previous statements, impeaching their credit. All the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) gave evidence in a very natural and consistent manner . The prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) also explained that on the day of occurrence, they were returning to their home, when at about 11.30 a.m. they were stopped by the appellants, who attempted to rob them but failed due to the resistance shown by Muhammad Aslam (deceased) and the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15). All the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) remained consistent with regard to their arrival at the place of occurrence and the reason for the same. More importan tly, the occurrence took place on 08.06.2018 at about 11.30 a.m. and in that manner there hardly existed a possibility that the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) would not have been able to see the appellants clearly during the occurrence, while being present so near them. Furthermore, no possibility exists that the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) would not remember the faces of those who had killed Muhammad Aslam (deceased), their dear relative and caused firearm injuries to the prosecution witness namely Irshad Bibi (PW-14). The prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) explained that after the deceased had been fired at by the appellants, the prosecution witness namely Irshad Bibi (PW-14) requested them not to do so, however , she too was fired at by both the appellants. In these circumstances, there remains no likelihood that the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) would not have concentrated on the faces of the appellants during the occurrence, as the prosecution witnesses namely Shamsha d Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) requested the appellants to desist and conversation took place between the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) and the appellants. In these circumstances, naturally , the focus of the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) would have been on the faces of the appellants. Therefore, the identification of the appellants by the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15), during the two different test identification parade proceedi ngs held in the case and the identification of the appellants by the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) before the learned trial court sufficiently proves the fact that it were the appellants who had committed the crimes on the day of the occurrence. Reliance in this regard is placed on the case of "Muhammad Sohail Alias Sohaila Vs. The State" (2021 SCMR 795) wherein the augusut Supreme Court of Pakistan has held as under:- "A test identification parade was conduc ted in the jail premises where the complainant Abdul Rehman (PW4), Muhammad Saleem (PW5) and Attique ur Rehman (given up PW) duly identified the appellant who along with another co-accused entered the shop and committed the murder of Haji Muhammad Asghar . The prosecution produced Mian Muhammad Iqbal Mazhar , Special Judicial Magistrate (PW12) to prove the proceedings of identification parade. Learned counsel for the appellant was not able to point out any flaw in the said identification parade proceedings (Ex.PG). The medical evidence adduced by Dr. Muhammad Zafar who conducted postmortem examination on the dead body of Haji Muhammad Asghar also supports the case of prosecution against the appellant as the doctor observed firearm injuries on the person of Haji Muhammad Asghar . Although the empties secured from the spot did not match with the pistol recovered from the appellant and the report of FSL is in the negative but it has been observed by us that even if this piece of evidence is discarded from consideration, there is overwhelming direct evidence in the shape of statements of complainant Abdul Rehman (PW4) and Muhammad Saleem (PW5), the identification parade proceedings wherein the eye-witnesses had duly identified the appellant as one of the perpetrators of the crime and the medical evidence which supports the ocular account furnished by eye-witnesses. In these circumstances, we have no manner of doubt that prosecution has successfully proved its case against the appellant beyond reasonable doubt."
Reliance is also placed on the case of "Muhammad Hayat and another Vs. The State" (2021 SCMR 92) wherein the augusut Supreme Court of Pakistan has held as under:- "There was no previous bad blood; the deceased on way were unsuspectingly surprised in a sudden encounter at 8:30 p.m. in the month of November; complainant presented written application, converted into First Information Report at 8:45 p.m. at the Police Station located at a distance of 3/4 kilometers from the venue. Muhammad Siddique, in injured condition, was medically examined under a police docket at 9:30 p.m., soon whereafter autopsies commenced. There is a remark able promptitude with none blamed by name. This circumstance by itself conclusively established prosecution's bona fides in recourse to law. The appellan ts were put to test identification parade under magisterial supervision on the same day, shortly after their arrest, wherein the witnesses correctly identified them as the ones who targeted the deceased during the robbery . During the process, each witness distinctly pointed each appellant for having targeted the deceased; their identification by the witnesses, without loss of time, rules out possibility of manipulation. Argument that police station was not an appropriate place for the holding test identification parade is entire ly beside the mark inasmuch as the law does not designate any specific place to undertake the exercise; on the contrary , Rule 26.32 of the Police Rules, 1934, inter alia, provides as under:
(a) "The proceedings shall be conducted in the presence of a magistrate or gazette d police officer , or, if the case is of great urgency and no such officer is available, in the presence of two or more respectable witnesses not interested in the case, who should be asked to satisfy themselves that the identific ation has been conducted under conditions precluding collusion.
(b) Arrangement shall be made, whether the proceedings are being held inside jail or elsewhere, to ensure that the identifying witnesses shall be kept separa te from each other and at such a distance from the place of identification and shall render it impossible for them to see the suspects or any of the persons concerned in the proceedings, until they are called up to make their identification."
(c) ......."
A combined reading of above Rules with Article 22 of the Qanun-e-Shahadat Order , 1984, does not restrict the prosecution to necessarily undertake the exercise of test identification parade within the jail precincts. Prosecution of offences and administration of justice are not dogmatic rituals to be followed relentlessly in disregard to the exigencies of situations, seldom identical or ideal. All that 'due process of law' requires is a transparent investigation and fair trial, in accord with statutory safeguards, available to an accused to effectively conduct his defence without being handicapped or embarrassed. In the absence of any statutory restriction to the contrary , the objection does not hold water . On factual plane, learned counsel has not been able to point out even obliquely any collusion, conspiracy or consideration impelling the witnesses to hurriedly swap innocent proxies to the dismay of devastated families, enduring abiding trauma. Reference to omission of assailants' features in the crime report as a ground to discard the test identification parade is equally inconsequential; Part C of the Lahore High Court Rules and Orders Volume-III (adopted by the High Court of Balochistan) does not stipulate any such condition. In the natural course of events, in an extreme crisis situation, encountered all of a sudden, even by a prudent onlooker with average nerves, it would be rather unrealistic to expect meticulously comprehensive recollection of minute details of the episode or photographic description of awe-inspiring events or the assailants. The pleaded requirement is callously artificial and, thus, broad identification of the assailants, in the absence of any apparent malice or motive to substitute them with the actual offenders, is sufficient to qualify the requirement of Article 22 of the Order ibid. Darkness possibly imped ing identity of the assailants, argued at length, fails to impress us as headlamps of three motorbikes, recovered during investigation, generated sufficient light to enable the witnesses to capture broad facial features of the assailants, encountered at close blank. Three Kalashnikovs, recovered upon appellants' disclosure, were forensically found wedded with the casings secured from the spot barring six with points of dissimilarity , a minor discrepancy insufficient to tremor the structure of the case resting upon sound foundations of ocular account through sources unimpeachable and free from taints. On an overall analysis of prosecution evidence, the only possible hypothesis is that of appellants' guilt."
Furthermore, the presence of the prosecution witness namely Irshad Bibi (PW-14) at the place of occurrence cannot be doubted as she had the stam p of injuries on her body . The prosecutio n witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) explaine d that after the incident, the prosecution witness namely Irshad Bibi (PW-14) was immediately taken from the place of occurrence to RHC Eiminabad from where she was referred to DHQ hospital Gujranwala and Dr. Zaryab Ali (PW-12), who on 08.06.2018 was posted as House Officer at D.H.Q. hospital Gujranwala , examined the prosecution witness namely Irshad Bibi (PW-14) and noted the presence of firearm injuries on the wrist of her right hand and her right thigh. It was further opined by Dr. Zaryab Ali (PW-12) that the injuries observed by him on the person of the prosecution witness namely Irshad Bibi (PW-14) were caused by a firearm weapon and there did not exist any possibility of fabricating the same. In this manner , implicit reliance can be placed upon the state ment of the prosecution witness namely Irshad Bibi (PW-14) whose statement is duly supported by the medical evidence available on record.
During the course of cross-examination, it was not even suggested that the prosecution witness namely Irshad Bibi (PW-14) was not injured during the occurrence or that she had fabricated the injuri es observed on her body by the Medical Officer. The august Supreme Court of Pakistan in the case of Khadim Hussain vs. The State (PLD 2010 Supreme Court 669) has held as under:- "We have not been persuaded to agree with the prime contention of learned Advocate Supreme Court on behalf of appellant that the ocular version could not be substantiated by any corroboratory material being devoid of merit for the simple reasons that ocular version finds full support from the medical evidence as is indicative from the nature of firearm injuries received by Abdul Latif, deceased. Besides that Muhammad Shafique (P.W.8), Mst. Anwar Mai (P.W.11 and Muhammad Akram had also received firearm injuries as per medical evidence as furnished by Dr. Anwar -ul-Haq, P .W.17."
Reliance is also placed on the case of "KHADIJA SIDDIQUI and another Vs. SHAH HUSSAIN and another"
(PLD 2019 Supreme Court 261) wherein the august Supreme Court of Pakistan observed that implicit reliance could be placed on the statement of an injured witness and noted with some concern that in the entire operative part of the impugned judgment passed by the High Court no discussion had taken place as to why the High Court had ignored or disbelieved the ocular account furnished by the minor and injured eye-witness namely Sofia Siddiqui of that case. The presence of the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) at the place of occurrence, at the time of occurrence, stands proved beyond a shadow of doubt. Additionally , the prosecution witnesses namely Sham shad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) had no reason to falsely implicate the appellants in the commission of the offences or substituting the appellants namely Shakeel Shah and Muhammad Rafaqat alias Gola and letting off the real culprits. There is no such materia l available on record which would indicate substitution of the appellants in the case with the real culprits. Substitution is a phenomenon of a rare manifestati on because even the interested witnesses would not normally allow the real culprits for the murder of their relations let off by involving an innocent person. 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 appellants namely Shakeel Shah and Muhammad Rafaqat alias Gola have not been able to establish any animosity of the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) or the police for their false involvement in the case. The prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) in a forthright manner , held the appellants namely Shakeel Shah and Muhammad Rafaqat alias Gola responsible for the Qatl-i- Amd of the deceased namely Muhammad Aslam and attempting to commit Qatl-i-Amd of the prosecution witness namely Irshad Bibi (PW -14) during the failed attempt to commit robbery .
14. The medical evidence produced by the prosecution in the case, proves that the deceased namely Muhammad Aslam succumbed to the injuries caused by the appellants and the prosecution witness namely Irshad Bibi (PW-14) received serious injuries at the hands of the appellants during the failed attempt to commit robbery . The medical evidence fully supports the ocular account. As mentioned above, both the appellants fired at the deceased namely Muhammad Aslam and also at the prosecution witness namely Irshad Bibi (PW-14). Dr.Zaryab Ali (PW-12), who on 08.06.2018 was posted as House Officer at D.H.Q. hospital Gujranwala , examined the prosecution witness namely Irshad Bibi (PW-14) and noted the presence of firearm injuries on the wrist of her right hand and her right thigh. The prosecution also got Dr.Rashid Hussain (PW-4), who on 08.06.2018 was posted as Medical Officer at T.H.Q. hospital Kamoke and on the same day conducted the postmortem examination of the dead body of Muhammad Aslam son of Muhammad Sadiq (deceased). Dr. Rashid Hussain (PW-4)), on examining the dead body of Muhammad Aslam son of Muhammad Sadiq (deceased) observed a firearm lacerated wound of entry of the dimension of 0.5 cm x 0.5 cm present on the lateral aspect of left chest and observed another firearm lacerated wound of entry of the dimension of 1.5 cm x 1 cm present on the medial aspect of the right knee on the dead body of the deceased . The learned counsels for the appellants have vehemently argued that the presence of a lacerated wound on the back of the head and on the back of the chest of the dead body of the deceased noted by the Medical Officer at the time of post mortem examination reflected that the ocular account was not in line with the medical evidence as the prosecution witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) had not explained the said injuries. We are afraid that the said contention of the learned counsels for the appellants does not carry much weight as naturally , Muhammad Aslam (deceased), after receiving the firearm injuries, must have fallen on the road and suffered the said two injuries. In view of the above discussion, it is ascertained and proved that the inten t of the appellants namely Shakeel Shah and Muhammad Rafaqat alias Gola was to commit the Qatl-i-Amd of the deceased namely Muhammad Aslam and the appellants attempted to commit Qatl-i-Amd of the prosecution witness namely Irshad Bibi (PW-14) during the abortive attempt to commit robbery .
15. During the course of the investigation the appellant namely Shakeel Shah led to the recovery of the pistol (P- 11) and the appellant namely Muhamma d Rafaqat alias Gola led to the recovery of pistol (P-3) on 08.07.2018.
Shahid Ali 2846/HC (PW-6) stated that on 08.06.2018, the Investigating Officer of the case handed over to him two sealed parcels containing the empties and the blood stained earth recovered from the place of occurrence and on 13.06.2018, he handed over the said parcels to the Investigating Officer of the case for their onward transmission to the office of the Punjab Forensic Science Agency , Lahore. Aftab Haider , SI (PW-11) arrested the appellant Shakeel Ahmad on 11.06.2018 and arrested the appellant namely Muhammad Rafaqat alias Gola on 23.06.2018 .
According to the report of the Punjab Forensic Science Agency , Lahore (Exh.PEE) it had received the sealed parcel said to contain eight empties collected from the place of occurrence on 08.06.2018 and had received the parcels said to contain the weapons recovered from the appellants on 11.07.2018. In this manner , the parcel said to contain the empties recovered from the place of occurrence were deposited in the Punjab Forensic Science Agency , Lahore prior to the arrest of the appellants. The prosecution also produced evidence proving the safe custody of the empties recovered from the place of occurrence, the safe custody of the weapons from the place of occurrence and their transmission to the office of the Punjab Forensic Science Agency , Lahore. According to the report of the Punjab Forensic Science Agency , Lahore (Exh.PEE), after analysis, five empties recovered from the place of occurrence were found to had been fired in the pistol (P-11) recovered from the appellant namely Shakeel Shah and four empties recovered from the place of occurrence were found to had been fired in the pistol (P-13) recovered from the appellant namely Muhammad Rafaqat alias Gola. In this manne r, the recoveries of the pistol (P- 11) from the appellant namely Shakeel Shah and the pistol (P-13) from the appellant namely Muhammad Rafaqat alias Gola and the report of the the Punjab Forensic Science Agency , Lahore (Exh.PEE) also offer corroboration of the statements of the prosecution witness es namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW -15).
16. In view of the above discussion, we have reached the conclsion that there is sufficient incriminating evidence available on the record against the appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf to prove the case of the prosecution against them. As discussed earlier , the prosecution case was fully proved through the evidence of the eye-witnesses namely Shamshad Aslam Bhinder (PW-13), Irshad Bibi (PW-14) and Saifullah (PW-15) . The said eye-witnesses stood the test of lengthy cross- examination, but their evidence could not be stunned. Their evidence is quite natural, straightforward and confidence inspiring. The ocular account of the prosecution as given by the abovementioned eye-witnesses is fully supported by the medical evidence furnished by Dr. Zaryab Ali (PW-12) ,Dr.Rashid Hussain (PW-4) and Dr. Fatima Sikandar (PW-1) and the evidence of the recoveries of the weapons from the appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf and the report of the the Punjab Forensic Science Agency , Lahore (Exh.PEE) therefore, we hold that the prosecution has proved its case against the the appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf beyond the shadow of any doubt.
17. Now coming to the quantum of sente nce awarded to the appellant namely Shakeel Shah son of Bashir Shah, we have noted some mitigating circums tances in his favour . It is a 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 1188) 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 Shakeel Shah son of Bashir Shah, 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. We have noted that the appellant was of 28 years of age at the time of occurrence and susceptible to the idea of easy money . We have also taken into consideration the fact that despite the appellant being armed with a pistol, he did not proceed to cause any other injury to the deceased and left the place of occurrence when the deceased was still alive, without acting further in any manner to ensure the death of the deceased. Then Muhammad Rafaqat alias Gola ,the co-accused of the appellant, despite also having fired at the deceased, was sentenced to imprisonment for life under section 302(b) P.P.C. by the learned trial court and there has not been filed any revision seeking the enhancement of the sentence awarded to the appellant Muhammad Rafaqat alias Gola . All these circumstances, in our view, make the death sentence awarded to the appellant namely Shakeel Shah son of Bashir Shah is quite punitive. In this regard the reliance is placed on the case of Fayyaz Alias Fiazi Versus The State (2017 SCMR 2024 ) wherein the august Supreme Court of Pakistan has held as under:- "However , we hold that it is not a case of capital punishment because only a single fire-shot was attributed to the appellant and there was no allegation of repetition of firing against him."
Reliance is also placed on the case of Rehmat Khan and another Vs. The State and others (2017 SCMR 2034 ) wherein the august Supreme Court of Pakistan has held as under:- "In appeal, the learned Division Bench of the Lahore High Court after taking into consideration the mitigating circumstances of the case i.e. single fire shot attributed to the petitioner and the alleged recovery of pistol being inconsequential rightly converted his death sentence to life imprisonment."
Reliance is also placed on the case of Subedar (retd.) Abdul Majeed and othe rs Vs. Mulazim Hussain Shah and another ( 2010 SCMR 641 ) wherein the august Supreme Court of Pakistan has held as under:- "19. No son under the impulse that his mother was abused, and one can imagine that what abuses might have been used by a male against a female that is mother of the appellant and appellant under such impulse could not constrain himself followed by his act of single fire shot at the deceased will be a case which would not be fit for awarding normal punishment of death. Further to simplify we hold that in this case the person aggrieved and annoyed because his mother was abused must by under constant stress to each lesson to the person abusing his mother and under such circumstances has committed the offence. He, in circumstances has rightly been awarded life imprisonment by the High Court."
Reliance is also placed on the case of MUHAMMAD JAVED and another Vs. The State and others (2011 SCMR 1462 ) wherein the august Supreme Court of Pakistan has held as under:- "The only question before us is whether there were mitigating circumstances justifying the learned High Court to commute the sentences of the accused-appellants from death of life imprisonment. The phrase 'mitigating circumstances' has been interpreted in the case of Muhammad Sharif v. Muhammad Javed alias Jeeda Tedi (PLD 1976 SC 452), where their lordships have held that extre me youth, sudden provocation; influence of an elder and question of family honour etc. are covered by the phrase of extenuating and mitigating circumstances. If a case falls within any of the aforesaid circumstances, a Court, in law , is justified to award lesser penalty ."
Reliance is also placed on the case of MUHAMMAD RIAZ and another Vs. The State and others (2017 SCMR 1871 ) wherein the august Supreme Court of Pakistan has held as under:- "Firstly , we will take up Criminal Appeal No. 151-L of 2009. Muhammad Ishfaq, respondent No.2 was attributed single fire shot on the person of Muhammad Iqbal (deceased) and there was no allegation of repetition of firing.
The learned Division Bench of the Lahore High Court in para-8 of the impugned judgment has given valid reasons for reducing the death sentence awarded to Muhammad Ishfaq, respondent No.2 and converting the same into life imprisonment. Upon our own independent assessment of the material available on the record, we do not find any reason for interference in the discretion exercised by the learned Division Bench of Lahore High Court in their appellate jurisdiction. Therefore, there is no merit in this appeal which is dismissed."
We are also fortified in our view in this regard by the cases of ZAFAR IQBAL alias ZAFARULLAH KHAN Vs. The State (2017 SCMR 1721 ), MAZHAR ABBAS alias BADDI Vs. The State (2017 SCMR 1884 ), IMTIAZ alias TAJI and another Vs. The State and others (2020 SCMR 287), SHAUKA T ABBAS alias KAKA Vs. The State (2006 SCMR 1158), LATIF ULLAH Vs. The State (2007 SCMR 994), SARDAR MUHAMMAD and another Vs. ATHAR ZAHOOR and others (2017 SCMR 1668 ) and SAR WAR and another Vs. The State and others (2020 SCMR 1250 ).
18. In the light of the above discussion, the conviction of the appellant namely Shakeel Shah son of Bashir Shah, as awarded by the learned trial Court through the abovementioned judgment, is maintained but the sentence of death awarded to the appellant namely Shakeel Shah son of Bashir Shah 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. is maintained and upheld. The other sentences awarded to the appellant namely Shakeel Shah son of Bashir Shah under sections 394, 324, 337-F(i) and 337 F(iii) P.P.C.are maintained and upheld. The conviction and sentences of the appellant namely Muhammad Muhammad Rafaqat alias Gola son of Muhammad Ashraf, as awarded by the learned trial Court through the abovementioned judgment under sections 302 (b), 394, 324, 337-F(i) and 337 F(iii)
P.P.C. are maintained and upheld. The appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf are directed to undergo a further six months of simple imprisonment each in case of default in payment of the compensation awarded by the learned trial Court under section 544-A of Cr.P.C. The benefit provided under sectio n 382-B of the Code of Criminal Procedure, 1898, is also extended to the appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf. All the sentences of the appellants namely Shakeel Shah son of Bashir Shah and Muhammad Rafaqat alias Gola son of Muhammad Ashraf are ordered to run concurrently . Consequently , with the above said modification in the sentence awarded to the appellant namely Shakeel Shah son of Bashir Shah under section 302 (b) P.P.C., the Criminal Appeal No.53076-J of 2019, is hereby dismissed.
19. Murder Reference No. 207 of 2019 is answered in Negative and the sentence of death awarded to Shakeel Shah son of Bashir Shah, is Not Confirmed .