SHAUKAT ALI RAKHSHANI, J. For culpable Homicide of Mst. Haseena Bibi (deceased) and for committing attempt to murder of Sojhla (PW-4), the appellant was indicted vide application (Ex.P/1-A) Submitted by brother of deceased Huzoor Bakhsh (PW-1), whereupon FIR No.23 of 2021 (Ex.P/9-A) dated 23.02.2021 within the remits of Police Station City Dera Murad Jamali was registered, who after a full-fledged trial was found guilty of the charge, culminating into conviction and sentence in the following terms; "Under section 302(b), P.P.C. 1860 as tazir and sentenced with death. He be hanged by the neck till he is dead. He is also directed to pay Rs. 4,00,000/-(Rupees Four lac) to the legal heirs of deceased Hasina as compensation under section 544-A of Cr.P.C. In default of payment of compensation amount to the legal heirs of deceased person the accused shall further under one for simple imprisonment of Six (06) Months. The accused person is also convicted under section 324, P.P.C. and sentenced of suffer R.I for Ten (10) years with fine of Rs. 20,000/- (Rupees Twenty Thousand), in default of payment of fine to further S.I for three (03) months. The benefit under section 382-B, Cr.P.C is extended towards accused."
The Trial Court also sent Murder Reference No.(S) 04 of 2021 for confirmation of the capital sentence.
2. Facts germane for imparting the instant appeal as well as connected murder reference reveals that complainant Huzoor Bakhsh (PW-1) got registered the report ibid, averring therein that on 23.02.2021 at 5:40 a.m., while he along with his family members was asleep at home, he woke up on the clamour and saw that appellant Ihsan Ali was striking his (PW-1) sister with hatchet and when they tried to apprehend him he went towards the room of his cousin Sojhla (PW-4) and the appellant attacked upon him as well with hatchet, whereby he sustained injuries. According to him, appellant while making escape proclaimed his wife and cousin injured Sojhla to be siyakaar.
As the investigation progressed, the crime scene was secured; the deceased and injured were sent to Civil Hospital, where Dr. Razia Lady Medical Officer (PW-5) examined the deceased Mst. Haseena and issued MLC (Ex.P/5-A), whereas injured Sojhla was medically examined by Dr. Hamal (PW-6)
Medical Officer District Headquarter Hospital Dera Murad Jamali, who issued MLC (Ex.P/6-A).
3. Barkat Ali Bhangra SI-Investigating Officer ("IO") (PW-9) prepared site plan (Ex.P/9-B), inquest report of deceased (Ex.P/9-C) and arrested appellant with a hatchet, allegedly stained with blood, which was taken into possession through recovery memo (Ex.P/8-A); the bloodstained clothes and hatchet were sent to Forensic Science Laboratory Crime Branch, Balochistan, Quetta ("FSL, Quetta"), whereof positive FSL report (Ex.P/9-E) was received and on conclusion of investigation, the appellant was put on trial, where after denial of the charge by him, the prosecution produced nine witnesses and on closure of prosecution side, he was examined under section 342, Cr.P.C. He did not opt to record his statement on oath or produced any defence evidence; henceforth, on conclusion of the trial, a verdict of guilt was recorded by the Trial Court and consequent thereto the appellant was convicted and sentenced in the terms mentioned in para supra.
4. Learned counsel for the appellant inter alia contended that the prosecution witnesses PW-1 to PW-3 claiming to be the eye-witnesses of the occurrence and PW-4 stated to have received injuries are untrustworthy as there are material contradictions in their statements, which has made the case of the prosecution highly doubtful. He further added that the medical evidence as well as recovery of hatchet also do not corroborate the ocular account, but the Trial Court by misreading the evidence has convicted and sentenced the appellant on the basis of improper appraisal of the evidence, which has made the impugned judgment a nullity in the eyes of law, thus the appellant deserves acquittal.
On the other hand, learned APG opposed the appeal and controverted the contentions so raised by learned counsel for the appellant. It was argued that the prosecution has successfully proved the case beyond any reasonable doubt on the basis of ocular account furnished by PW-1 to PW-4, which has been corroborated by medical evidence as well as by the recovery of hatchet. He maintained that the findings drawn by the Trial Court are legally correct, which does not call for interference by this Court, henceforth, requested for dismissal of the appeal and confirmation of the death penalty.
5. Heard. Record vetted and analyzed with utmost care and caution. The case of the prosecution hinges upon the following pieces of evidence; i) Ocular account furnished by PW-1 to PW-4, ii) Medical evidence, iii) Recovery of hatchet (Ex.P/9-E), iv) FSL report confirming the suspected clothes and hatchet to be stained with human blood.
6. Huzoor Bakhsh complainant (PW-1) is the brother of deceased. He reiterated what he had reported in his application (Ex.P/1-A) on the basis whereof FIR (Ex.P/9-A) was registered. He testified that while he was asleep at his home on 23.02.2021, he was attracted on the clamour of her sister.
He testified that he saw appellant Ihsan Ali, striking and inflicting injuries with hatchet upon her sister Mst. Haseena and that on his intervention the appellant ran towards the room of his cousin Sojhla (PW-4) and made an assault upon him with the hatchet as well, whereby he sustained injuries and when they tried to apprehend the appellant, he while fleeing stated that he has declared his wife Mst. Haseena and Sojhla (PW-4) as siyakaar. He was cross-examined from various angles with regard to timing, place of occurrence and other aspects, but he remained firm to his examination-in-chief. Ali Muhammad (PW-2) is uncle of the deceased. He testified and corroborated the testimony of his nephew Huzoor Bakhsh (PW-1). He gave the similar account of the occurrence as deposed by other eye-witnesses. Allah Rakha (PW-3) testified in line with the testimony of both the said witnesses by furnishing the detailed account of murder of deceased Mst. Haseena and causing injuries to Sojhla (PW-4). They were cross-examined on various points with the purpose to discredit and dispute their presence, but their testimony went unshaken.
Though, some minor discrepancies were observed, but same are ignorable, having no importance to discredit their testimony or to be fatal to the case of the prosecution.
7. Injured Sojhla (PW-4), who received injuries at the hands of the appellant testified that while he was asleept; he woke up on the clamour and saw the appellant armed with a hatchet, who attacked upon him, whereby he sustained injuries and when Huzoor Bakhsh (PW-1), Ali Muhammad (PW-2) and Allah Rakha (PW-3) tried to apprehend him, he made off by proclaiming him siyakaar with his wife Mst. Haseena. His testimony, despite lengthy cross-examination also could not be shattered. He remained firm and consistent to his testimony like other eye-witnesses
8. We have analyzed and scanned the ocular account minutely, which has been found by us to be confidence-inspiring and truthful. They have proved their presence as all of them were living together almost in the same premises. Nothing has been brought on record to justify that the testimony of the eye-witnesses was fabricated or false. Even otherwise, there is also no plausible justification as to why they would let go the real culprits and falsely implicate the appellant for no reason.
9. The medical evidence is the next important piece of evidence, whereupon the prosecution rests its case. Dr. Razia (PW-5) examined. deceased Mst. Haseena, who issued MLC (Ex.P/5-A), observed the following injuries; "Sharp cut wound on left side of face. Punctured wound about 7 inches. Left ear cut, cheek cut, bones, exposed. Sharp cut wound on neck and chin."
Cause of death:- Sever hemorrhage and shock.
Type of Weapon:- Sharp.
Duration:- Fresh."
Whilst, injured Sojhla was medically examined by Dr. Hamal (PW-6), who issued MLC (Ex.P/6-A) and observed the following injuries; "1. Right occipital region of skull 2 c.m deep, 4 c.m wide, incised wound, bone exposed, fresh bleeding, swelling.
2. Right temporal region of skull incised wound, bone exposed, stitches applied.
3. Right left hand thumb region incised wound exposed bone and muscles, fresh bleeding, stiches applied."
Type of Weapon:- Sharp.
Duration:- Fresh."
10. We are mindful of fact that the medical evidence is not considered as a corroborative piece of evidence rather it merely confirms the nature, locale and timing of the injuries, but does not indentify an accused. In the instant case, the medical evidence confirms that the injuries received by the deceased as well as by injured were caused by a sharp weapon, having been caused within a short span of time as rigor mortis had not yet developed. Even otherwise, homicidal death of the deceased has not been disputed by the defence except suggesting that such MLCs were fake. The FSL report (Ex.P/9-E) affirms that clothes and the hatchet were stained with human blood.
11. To prove the recovery of hatchet so recovered from the appellant soon after the occurrence being stained with blood corroborates and strengthens the prosecution case. The recovery witness Abdul Karim (PW-8), who produced the memo (Ex.P/8-A) was cross-examined at length, but he remained firm and consistent; his testimony went unshaken.
12. Aftermath of above discussion is that the prosecution has proved the indictment through confidence-inspiring and truthful evidence of eye-witnesses (PW-1 to 3) as well inured (PW-4) supported by the medical evidence and cemented by recovery of blood stained hatchet without any glimpse of doubt and as such the Trial Court has recorded verdict of guilt on the basis of proper appraisal of the evidence, which does not call for interference by this Court except to the extent of quantum of sentence.
13. The prosecution had pleaded that the appellant had committed murder of the deceased and had attacked upon the injured after proclaiming them siyahkar, but the prosecution failed to prove the motive by producing any independent, convincing and confidence inspiring evidence to establish that actually the occurrence took place on the motive of siyahkari.
Thus, failure by the prosecution to set up the motive and then not proving it give rise to mitigating circumstance as held in the case of 'Muhammad Shoban v. The State' (2022 SCMR 1608), the relevant portion of para 4 thereof is reproduced hereinbelow; "The law of the land in this regard is much settled by now that absence of motive or absence of proof of the same would be a sufficient mitigating circumstance to determine the quantum of sentence. We can lay hands on some of the latest judgments of this court for a matter of reference i.e. Mst. Nazia Anwar v. The State (2018 SCMR 911), Nadeem Ramzan v. The State (2018 SCMR 149), Haq Nawaz v. The State (2018 SCMR 21), Ghulam Muhammad v. State (2017 SCMR 2048), Saif Ullah v. State (2017 SCMR 2041), Waris Ali v. The State (2017 SCMR 1572). So keeping in view the above discussion, we are of the considered view that the prosecution has utterly failed to prove the motive so alleged in the FIR, benefit of which for the purpose of quantum of sentence in this case will have to go to the appellant and the appellant in the given circumstances, cannot be awarded major penalty of death."
For what has been discussed hereinabove, the appeal being meritless is dismissed; however, quantum of sentence recorded under section 302(b) of the Penal Code is converted and reduced from capital penalty to that of life imprisonment, which shall serve the purpose.
Corollary, the murder reference is answered in negative.