AMJAD ALI SAHITO, J. Through this single judgment, we intend to decide captioned appeals as all are arisen out of one incident and the same FIR and common questions of facts and law are involved in these matters which are directed against impugned judgment dated 25.01.2017, passed by the learned Sessions Judge, Badin in Sessions Cases Nos.80 and 80-A of 2013 emanating from FIR No.14 of 2013 for an offence under sections 302, 504, 34, P.P.C. registered at P.S. Matti, whereby appellant Aqeel Sheedi in Criminal Jail Appeal No.D-11 of 2017 was convicted under section 302(b), P.P.C. read section 32, P.P.C. for murdering Muhammad Saleh alias Nabeel and sentenced him to death subject to confirmation by his Court. He was also directed to pay compensation of Rs.
300,000/- (Rupees three hundred thousand only) to the legal heirs of deceased Muhammad Saleh alias Nabeel. A reference for confirmation of the death sentence awarded to appellant Aqeel Sheedi was also sent to this Court. While appellants Muhammad Ahsan, Zafar alias Malai and Khawahish were convicted under section 302(b), P.P.C. read with section 34, P.P.C. and sentenced them to suffer life imprisonment for an offence under section 302(b), P.P.C. as Ta'zir however they were also directed to pay compensation of Rs.300,000/- (Rupees three lacs) each to the legal heirs of deceased Muhammad Saleh alias Nabeel and learned Trial Court extended benefit of section 382-B, Cr.P.C. to them.
2. According to complainant Sabir Ali on 05.04.2013 he along with his younger brother deceased Muhammad Saleh alias Nabil went to the city for work and were returning with grass of goat. When they reached Nizamani street at 1800 hours where appellant Ahsan Sheedi put his hand in the grass and pushed, on which complainant's brother Muhammad Saleh alias Nabeel restrained him, upon such refusal appellant Aqeel Sheedi caused (Chhuro) blows to Muhammad Saleh alias Nabeel on the centre of his abdomen, appellant Khawahish Nabi alias Khawahi caused Chhuro (knife) blows to Muhammad Saleh on the elbow of his left forearm and appellant Ahsan Sheedi caused clip blow to Muhammad Saleh on the backside of his head while appellant Malai Sheedi also caused him kicks and fists blows, who received injuries cried and fell on the ground and during treatment he expired.
3. The police after registration of the FIR started the investigation, arrested the accused persons, made recovery of crime weapons and on completing the investigation, submitted the final report under section 173, Cr.P.C. (challan) against the accused persons before the competent Court of Law.
4. Before trial Court, the accused persons (appellants) namely Muhammad Ahsan, Khawahish Nabi alias Khawahish and Zafar alias Malai were declared as Juvenile offenders, therefore, they were ordered to be tried according to Juvenile Justice System Ordinance, 2000 and their case was separated from the case of present adult accused (appellant) Aqeel assigning number as S.C.
No.80-A of 2013 (State v. Muhammad Ahsan and others) vide order dated: 4.9.2013.
5. The copies in compliance with section 265-C, Cr.P.C. was supplied to the appellants and separate charges against them were framed to which they pleaded not guilty and claimed to be tried at trial.
6. During the trial, the prosecution examined P.W.1 Medical Officer Dr. Ghazi Amanullah at Exh.3, who produced a police letter and provisional medical certificate of injured Muhammad Saleh alias Nabeel at Exhs.3-A and 3-B, P.W.2 Tapedar Sain Bux at Exh.4, who produced the sketch of place of incident in quadruplicate at Exhs.4-A; P.W.3 complainant Sabir Ali at Exh.6, who produced the FIR at Exh.6-A; P.W.4 Raja at Exh.7; P.W.5 Abdul Salam at Exh.8; P.W.6 Aziz Ahmed at Exh.9, who produced the memo of dead body, Danistnama and receipt of handing over dead body of deceased from Exhs.9-A to 9-C; P.W.7 ASI Aurangzeb at Exh.10, who produced police letter addressed to MLO Civil Hospital Hyderabad and dead body inspection form at Exhs.10-A and 10-B; P.W.8 mashir Mumtaz Ali at Exh.11, who produced the memo of injuries, memo of place of incident, memo of clothes of deceased, memo of arrest of accused Aqeel Sheedi, memo of recovery of knife from accused Aqeel Sheedi, memo of arrest of accused Muhammad Ahsan Sheedi, memo of arrest of accused Khawahish Nabi alias Khawahi and Zafar alias Malai from Exhs.11-A to 11-G respectively; P.N.8 Dr. Javed Iqbal at Exh.12, who produced attested Photostat copy of police letter, dead body inspection form, postmortem examination report and the Gate pass/road pass from Exhs.12-A to 12-D respectively; P.W.9 HC Muhammad Ashraf Sehto at Exh.13 and P.W.10 10 ASI Muhammad Iqbal at Exh.14, who produced entry No.24, letter issued to Mukhtiarkar Revenue Badin for preparation of sketch of place of incident, entries Nos.33, 9, 13, 5, 12, 12, 14, 20, 40, 33 made on different dates regarding investigation of this case and the report of Chemical Examiner from Exhs. 14-A to 14-H respectively. Thereafter the learned ADPP closed the side of prosecution vide statement at Exh. 15.
7. Appellant Aqeel Ahmed in his statement recorded under section 342, Cr.P.C. has denied the allegations of the prosecution and claimed his innocence. He neither examined himself on oath nor led any evidence in their defence. However, he has produced his birth certificate issued by NADRA at Mark-A claimed that at the time of the incident he was minor. While appellants Muhammad Ahsan, Zafar alias Malai and Khawahish also claimed their innocence and denied the allegations of prosecution but they neither examined themselves on oath as required under section 340(2), Cr.P.C. nor produced any witness in their defence.
8. The learned trial Court after hearing the learned counsel for the respective parties, and appraisal of the evidence, convicted and sentenced appellants in a manner as stated above. The conviction and sentence, recorded by the learned trial Court, have been impugned by appellants before this Court by way of filing the instant captioned appeals.
9. Learned counsel for the respective appellants submit that the judgments are against the law and facts of the case; that place of incident was visited on 09.04.2013 while the incident is shown to have taken place on 05.04.2013 after the delay of four days; that present appellants are innocent and they have falsely been implicated in these cases; that all the witnesses cited in the case are closely related inter-se are chance witnesses; that the medical evidence conflicts with the ocular evidence; that unnatural conduct of the witnesses appeared in the evidence as they were three in numbers but they did not try to save the deceased; that both the witnesses Raja and Abdul Salam are chance witnesses; that no independent witness has been cited by the prosecution; that same mashir is in all mashirnamas. They lastly prayed for the acquittal of the appellants. In support of their contentions, they have relied upon the cases of Pathan v. The State [2015 SCMR 315], Muhammad Asif v. The State [2017 SCMR 4861 and Zafar v. The State and others [2018 SCMR 326].
10. While refuting the above contentions, learned Additional Prosecutor General, Sindh for the State argued that the names of the appellants transpire in the FIR and they have participated in the commission of the offence; that delay for the lodgment of FIR has been properly explained by the complainant in the FIR; that no proof of enmity was brought by the police which may justify their false implication in this case by the complainant party being interested witnesses; that ocular account is consistent with medical as well as circumstantial evidence. He further argued that no material contradiction and discrepancy is pointed out by the learned defence counsel to show their false implication in this case, therefore, in such circumstances, the learned Trial Court has rightly awarded the conviction and sentence to the appellants following the law. He lastly prayed for the dismissal of the instant appeals.
11. We have heard the learned counsel for the respective parties and have gone through the evidence with their able assistance.
12. To believe or disbelieve a witness depends upon the intrinsic value of the statement made by him. Even otherwise, there cannot be a universal principle that in every case an interested witness shall be disbelieved or a disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of the crime and that he is making a true statement. A person who is reported otherwise to be very honest, above board and very respectable in society if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement. Needless to mention here that in absence of direct evidence such a witness would never qualify the requirement, necessary for direct evidence as required by Article-71 of Qanun-e-Shahadat Order 1984. On careful perusal of material brought on the record, it appears that the prosecution case solely depends upon the ocular testimony adduced in the shape of evidence of complainant Sabir Ali and eye-witnesses Raja (PW-4) and Abdul Salm (PW-5) and supported by the medical evidence as well as circumstantial evidence. On eventful day viz. 05.04.2013 the complainant and his brother Muhammad Saleh alias Nabil went to City for their work. After purchasing the grass were coming back to their house when they reached the street of Nizamani Mahalla at about 06:00 p.m. appellant/accused Ahsan Sheedi put his hand in the grass and pushed, on which complainant's brother Muhammad Saleh alias Nabeel restrained him. Appellant/accused Aqeel Sheedi armed with Churra, appellant/accused Ahsan Sheedi armed with clip, appellant/accused Khuwahish Nabi alias Khuwahi armed with Churra and appellant/accused Malai Sheedi were present there. Appellant Aqeel Sheedi inflicted Churra blow to the brother of complainant Muhammad Saleh alias Nabil on his abdomen, appellant Ahsan Sheedi also hit clip blow on the backside of his head and appellant Khuwahish Nabi inflicted Churra blow at his left forearm. After receiving the injuries the deceased fell down by raising cries. Such incident was witnessed by Abdul Salam and Raja. After committing the offence, the appellants went away. The complainant brought the injured Muhammad Saleh alias Nabil at police station Matli where police inspected the injuries in presence of mashirs and referred him to Matli Hospital for treatment. After getting first aid the injured was shifted to LUMS Hyderabad for better treatment. During the treatment he died on 08.04.2013 and his post-mortem was conducted on the same day. Thereafter the complainant lodged FIR against the appellants/ accused.
13. In cross-examination, the complainant admits "that the incident took place in a common street and local persons also use the same street. The injured was shifted on motorcycle by unknown passerby. He spent 10/15 minutes in hospital and received a referral letter from the doctor for Hyderabad, his brother was expired at 01:00 p.m. in a day time and he arrived at Police Station at 11:00 p.m. of night, after completion of burial lodged the FIR." PWs Raja and Abdul Salam narrated the same story and supported the version of the complainant. In cross-examination PW Raja admitted that "it is correct that I stated in my 161, Cr.P.C. statement that 1 was apprised by Sabir Ali that all injuries were inflicted to his brother by the present accused." Whereas PW-5 Abdul Salam admits that the complainant is his neighbour and caste fellow. The saw the accused person when they reached near to them. The accused Aqeel inflicted churra blow to the Saleh alias Nabil on his abdomen and accused Khuwahish Nabi inflicted churra blow to injured which hit him on his left arm. The accused Ahsan also inflicted clip blow which hit the injured/Saleh on the back of the head. The fundamental principle governing the appreciation of evidence, particularly in cases of capital punishment is that the prosecution must stand on its legs and prove the case against the accused beyond a reasonable doubt. In the instant case, the eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of occurrence in a clear cut manner. PW Abdul Salam and Raja have denied the suggestions that they have not witnessed. The complainant and his witnesses were cross-examined at length, lengthy, questions were asked to shatter their confidence and doubt their presence at the scene of occurrence, but the defence could not extract anything favourable from their mouth and they remained consistent on the material point.
14. So far as the delay for registration of FIR is concerned, it was, no doubt, delayed by four days, yet seen in the light of attending circumstances, the delay stands explained by the complainant in the FIR referred to LUMS Hyderabad for better treatment and during the that after taking the letter from the Matli Hospital the injured was treatment, the injured Muhammad Saleh alias Nabil died on 08.04.2013, the post-mortem was conducted and thereafter he lodged the FIR on same day. Further on the day of the incident at about 1810 hours, the letter was written by the ASI of PS Matli to the Medical Officer Matli for the treatment of the injured Muhammad Saleh in which he has disclosed the three injuries which were received by the injured. PW-1 Dr. Ghazi Amanullah produced such letter as Ex.03/A. PW-8 Mumtaz Ali mashir of the case produced a memo of injuries of injured Muhammad Saleh as Ex-11/A. PW-11 SIP Muhammad Iqbal also produced roznamcha entry No.24 as Ex-14/A dated 05.04.2013 time 1810 hrs which was kept by him in which complainant disclosed the names of accused persons by saving that they inflicted churra/clip blows to his brother Muhammad Sahli alias Nabeel and requested for letter for the treatment. It is an established principle of law and practice that in criminal cases the delay by itself in lodging the FIR is not material. The factors to be considered by the Courts are first that whether such delay stands reasonably explained and secondly, that the prosecution has not derived any undue advantage through the delay involved.
15. In the case in hand, the direct evidence also finds corroboration from the medical evidence of the Medico-Legal Officer concerning the cause of death and time of incident and weapon used in the commission of the offence. PW-1 Dr. Ghazi Amanullah, who was posted as Senior Medical Officer at Taluka Hospital Matti and received a letter at about 06:30 p.m. for the checkup, treatment and certificate. He examined injured Muhammad Saleh alias Nabil and found the following injuries on the person: "1. A Stab wound measuring 0.5 cm oval in shape with internal bleeding deep to deep facia near umbilicus.
2. Lacerated wound measuring 0.4 cm rounded in shape skin deep on dorsal surface of the left forearm.
3. Lacerated wound measuring 0.4 cm rounded in shape on occipital region of head."
16. In cross-examination, he denied the suggestion that injury No.1 was caused by a packing needle. The prosecution also examined PW-9 Dr. Javed Iqbal Senior Medico-legal Officer, who conducted a postmortem on the dead body of the deceased Muhammad Saleh. He deposed that on 08.04.2013 he was posted as Senior Medico-legal Officer at LUH Hyderabad. On the very same date, at about 02.25 p.m. ASI, Aurangzeb brought a dead body of Muhammad Saleh with a postmortem letter and Lash Chakas Form and he has produced a photocopy of the letter and inquest report at Ex.12/A and 12/B. He started postmortem at about 02:30 p.m. and finished the same at 04:00 p.m. From external examination over the dead body of the deceased, he found the following injuries: "Injury No.1. Incised operated stitched wound size about 18 cm in length over stab wound at centre of abdomen below xiphisternum up to 5 cm below umbilicus.
Injury No.2. Incised wound size 2 cm x 01 cm wound for drain purpose. At the level of 11th rib at left side.
Injury No. 3. Abrasion size 2 cm x 1 cm over left elbow joint posteriorly.
Injury No.4. Bruise size 3 cm x 2 cm over anterior aspect of left forearm just below elbow joint."
All injuries were ante-mortem. In his opinion, the cause of death was due to septicemic shock by consequence of stab wound caused by sharp and cutting weapon. In cross-examination, he/Dr. admits that "There were three injuries one is stab wound on the abdomen and one bruise and one abrasion on the left forearm and elbow joint. Both two injuries are left elbow and forearm are curable but the stab wound is a serious injury and is not curable... I had seen the stab wound which was operated wound of 18 cm length over abdomen."
17. The medical evidence narrated by the doctors, the provisional medico-legal certificate as well as final medico-legal certificate confirm the version of the complainant/PWs that the deceased received three injuries and during treatment, he died at LUMH Hyderabad. Reference is placed in the case of Zahoor Ahmed v. The State [2017 SCMR 1662], wherein the Hon'ble Supreme Court of Pakistan has held that:- "4. The ocular account' in this case consists of Muhammad Khan complainant (PW-06) and Shahbaz (PW-07). They gave the specific reasons of their presence at the place of occurrence as, according to them, they along with the deceased were proceeding to harvest the sugarcane crop.
Although they are, related to the deceased but they have no previous enmity or ill-will against the appellant and they cannot be termed as interested witnesses in the absence of any previous enmity. They remained consistent on each and every material point. The minor discrepancies pointed out by the learned counsel are not helpful to the defense because with the passage of time such discrepancies are bound to occur. The occurrence took place in broad day light and both parties knew each other so there was no mistaken identity and in absence of any previous enmity there could be no substitution by letting off the real culprit specially when the appellant alone was responsible for the murder of the deceased. The evidence of two eye-witnesses was, consistent, truthful and confidence inspiring. The medical evidence fully supports the ocular account so far the injuries received by the deceased, time which lapse between the injury and death and between death and postmortem. Both the Courts below have rightly convicted the appellant under section 302(b), P.P.C."
18. Prosecution also examined PW-8 Mumtaz Ali, who was the mashir of the case and in his presence police has inspected the place of the incident which reveals that the same was prepared on 09.04.2013 as it was a busy place, as such, police could not secure the bloodstained earth from there. Further the complainant produced the bloodstained clothes of the deceased Muhammad Saleh which were sealed by the police. On 10.04.2013 appellant Aqeel Sheedi was arrested and after his arrest on 17.04.2013 he had produced one knife in the shape of Churra which was also stained with blood, was sealed on the spot and such memo was prepared, and was produced at Ex.11/E. On 03.05.2013 appellant Ahsan Sheedi was also arrested and from his search, the police also recovered one iron clip. It was sealed and he has produced the same as Ex.11/F and later on appellants Malai Sheedi and Khuwahish Nabi were arrested from Sheedi Mohalla and police prepared such mashirnama, he has also produced the same at Ex.11/G.
19. The medical evidence has also supported the ocular version. The ocular evidence is further supported by the recovery of the knife and clip from appellants Aqeel Sheedi and Ahsan Sheedi.
The knife (Churra) of the appellant Aqeel Sheedi and blood-stained clothes of the deceased were sent to the office of the Chemical Examiner and found that articles Nos.1 to 3 are stained with human blood. The prosecution witnesses are in line in respect of the vital points in their depositions and they could not be shaken during cross-examination. The availability of the appellants namely Aqeel Sheedi, Ahsan Sheedi and Khuwahish at the place of the incident is also established through the evidence of the eye-witnesses. We have not observed any major contradiction in the depositions. The parties are known to each other as is evident from their evidence, so there was no chance of mistaken identity of the appellants. We would not hesitate to say that where the witnesses fall within the category of natural witnesses and give a detail of the incident in a confidence inspiring manner, their evidence will not be brushed aside.
20. The law of land normally provides a sentence for an offence of Qatl-i-amd (murder) is death which is to be awarded as a matter of course except where the Court finds some mitigating circumstances which may warrant the imposition of a lesser sentence. In the instant case, appellants/accused Muhammad Ahsan, Zafar alias Malai and Khawahish Nabi were convicted under section 302(b), P.P.C. read with section 34, P.P.C. and sentenced to Suffer life imprisonment for the offence under section 302(b), P.P.C. as Tazir on the ground that they were juvenile at the time of the commission of incident. We are surprised to see that the appellant Aqeel Ahmed while recording his statement under section 342, Cr.P.C. claimed that he was a minor at the time of the incident and produced his birth certificate issued by the Government of Sindh. From the perusal of the certificate, it is clear that the date of birth of the appellant is 12.09.1996. The appellant Aqeel Ahmed himself claimed his juvenility before the learned trial court while recording his statement under section 342, Cr.P.C. and produced his birth certificate. In cross-examination, the complainant denied the suggestion that "It is incorrect to suggest that accused Aqeel Sheedi was underage at the time of the incident." From starts of the case the counsel for the accused was claiming that the accused is juvenile. In such circumstances the court was required to hold an inquiry into the matter with regard to the age of the accused. The purpose of the inquiry is to find out the truth. The court was to not only take into consideration the document produced by the accused but where necessary it should also constitute a medical board to determine the age of the person/accused.
In terms of section 12 of Juvenile Justice System Ordinance, 2000, capital punishment cannot be awarded, which reads as under;-
12. Orders that shall not be passed with respect to a child....... . Notwithstanding anything to the contrary contained in any law for the time being in force no child shall be ....
(a) awarded punishment of death, or ordered to labour during the time spent in any Borstal or such other institution; and (b)......
21. On the assessm ent of the evidence, we find that the learned has not considered the submission of the appellant about his juvenility nor referred him to the medical board to determine his age. In the instant case three co-accused Muhammad Ahsan, Zafar alias Malai and Khawahish Nabi were declared minor and they were convicted and sentenced to suffer for life imprisonment, hence the appellant Aqeel Ahmed is also entitled to the same treatment. It is also a settled principle of law that no one can be prejudiced by the act of the Court.
22. In the above circumstances, we would like to observe that punishment provided section 302(b), P.P.C. as Ta'zir is either death or imprisonment for life; both sentences are available under this head but the circumstances, are not spelt out in section 302(b), P.P.C., in which case either of the two punishments can be awarded. We are fortified on this point with the case of Muhammad Sharif v.
The State (PLD 2009 Supreme Court 709) whereby Hon'ble Supreme Court has held elaborated the similar question as to under;- "It has been seen and observed from the perusal of the various proceeding in relation to section 302 of P.P.C. in particular its clause (b), that there is a choice and discretion with the Court to inflict punishment with death or imprisonment for life as tazir having regard to the facts and circumstances of the case."
23. For what has been discussed hereinabove the appeals preferred by the appellants Aqeel Ahmed Sheedi, Ahsan Sheedi and Khuwahish Nabi are dismissed. The sentence of death awarded to appellant Aqeel Ahmed under section 302(b), P.P.C. read with section 34, P.P.C. is reduced/converted into imprisonment for life. The benefit of section 382-B, Cr.P.C. is also extended in favour of the appellants.
24. As a result of the above findings the reference bearing No.03 of 2017 submitted by the learned trial Court for confirmation of death sentence to the appellant Aqeel Sheedi is answered in the NEGATIVE. The case law relied upon by the learned counsel for the appellants are quite distinguishable from the facts and circumstances of the present case hence, are not applicable in the present case.
25. Reverting to the case of appellant Zafar alias Malai Sheedi the complainant in his deposition deposed that he was only present there whereas PW-4 Raja deposed that accused Malai was empty-handed. PW-5 Abdul Salam deposed that accused Malai gave kicks and fists bow to Saleh alias Nabil but the medical evidence is silent on this aspect. In a case where no effective role has been attributed to co-accused: in commission of the crime, his mere presence on the spot is not sufficient to make him vicariously liable for the acts of the co-accused. Roles attributed to appellant Zafar alias Malai and co-accused/appellants are quite distinguishable. Further the complainant and other witnesses admitted that the place of incident is Common Street and local persons also use the same street. The appellant was also residing in the same street. In this respect, reliance can be placed upon the case of Mohammad Mansha v. The State (2018 SCMR 772), in which the Hon'ble Supreme Court of Pakistan has held as under:-
4. "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such- doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Parvez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Mohammad Akram v. The State (2009 SCMR 230) and Mohammad Zaman v.
The State (2014 SCMR 749)."
26. The learned Trial Court has failed to appreciate the evidence and material brought by the prosecution against appellant Zafar alias Malai. In these circumstances, we while giving benefit of doubt acquit him from the charge. Resultantly criminal jail appeal No.D-33 of 2018 to the extent of appellant Zafar alias Malai is allowed and he is acquitted from the charge. He is to be released forthwith if not required in any other custody case.