AALIA NEELUM, J.---The appellant-Riaz, son of Ahmad Yar, caste Ramana, resident of Chak No.223/JB Janubi, Tehsil Bhowana District Chiniot, has assailed his conviction and sentence recorded by the learned Addl. Sessions Judge, District Chiniot vide judgment dated 26.03.2019 in a private complaint filed under sections 302, 109, 114, 148, 149, P.P.C. P.S. Langrana, District Chiniot titled "Muhammad Yousaf v. Riaz, etc.", whereby the learned trial court convicted the appellant-Riaz under Section 302(b), P.P.C. as Tazir and sentenced to Death for committing Qatl-e-Amd of Noor Muhammad (the deceased), with the direction to pay compensation of Rs.2,00,000/- to the legal heirs of the deceased as envisaged under section 544-A of Cr.P.C and in case of default thereof, to undergo 06-months S.I. further.
2. Feeling aggrieved by the judgment of the learned trial court, Riaz, the appellant, has assailed his conviction by filing the instant jail appeal bearing Criminal Appeal No.43590-1 of 2019. The learned trial court also referred M.R. No.74 of 2019 (The State v. Riaz) for confirmation of the death sentence awarded to the appellant-Riaz. Whereas the complainant also filed Crl. P.S.L.A No.26329 of 2019 against the acquittal of respondents Nos. 2 to 6, namely Irshad alias Shahadta, Noor Akbar alias Mammu, Khan, Iqbal, and Munir. All the matters arising out of the same judgment of the learned trial court are being disposed of through a single judgment.
3. Briefly, the prosecution story as alleged in the private complaint (Ex. PD) of Muhammad Yousaf (PW-1)-the complainant is that on 04.03.2016, at about 08:45 P.M., complainant (PW-1) along with his brothers, namely, Bhai Khan (PW-2), Noor Muhammad (the deceased) and Mukhtar Hussain was present in his house. Meanwhile, Riaz-the appellant armed with a rifle, Irshad, Barkhurdar, Noor Akbar, Khan, and Iqbal (co-accused since acquitted), all while armed with firearm weapons, came there on their motorcycles and entered his house. Irshad (co-accused since acquitted) raised Lalkara to teach a lesson to Noor Muhammad (the deceased) for demanding back lady, after that the complainant and others came out of the room, and Noor Muhammad (the deceased) was ahead of them. Riaz (the appellant) made a fire shot with his rifle, which hit Noor Muhammad (the deceased) at the front of his abdomen near the belly button and exited from the back. The electric bulb was lightening, and they identified all the accused persons. The accused persons fired straight at them, but they survived. The complainant and others witnessed the occurrence and attended Noor Muhammad (the deceased) and took him to the hospital, but he succumbed to the injuries.
4. The motive behind the occurrence was that Mst. Shehnaz Bibi, daughter of Zafar, who was a close relative of the complainant, was abducted by Riaz (the appellant) and Noor Muhammad (the deceased) demanded her back from Riaz (the appellant). Due to said grudge, all the accused persons in the prosecution of their common object murdered Noor Muhammad, deceased.
5. The complainant Muhammad Yousaf (PW-1), got recorded his statement (Ex. PA) to Israr Hussain S.I. (CW-7)-the Investigating Officer, who, after endorsing police proceedings on it, sent the same to the police station through Ahmad Nawaz 32/C (not cited as a witness), after that formal FIR (Ex.PA/1) was chalked out by Muhammad Ayub 289/H.C (CW-8)-Moharrar. After the registration of the case, the investigation of this case was conducted by Ghulam Shabbir Inspector (CW-9), who found the accused/appellant guilty, prepared a report under section 173 of Cr.P.C. Being dissatisfied with the result of the investigation, as the Investigating Officer being in league with the accused did not investigate the matter properly, the complainant was constrained to file a private complaint (Ex. PD). After recording the cursory evidence of the complainant and having perused the record, all the accused persons were found connected with the commission of the offence, so they were summoned to face the charge. After that, the learned trial court formally charged the appellant and his co-accused on 07.02.2018, to which they pleaded not guilty and claimed trial. In support of its version, the complainant produced as many as four (04) witnesses, whereas the prosecution produced the witnesses as C.W-1 to C.W-12.
6. Ocular account, in this case, has come out from the statements of Muhammad Yousaf (PW-1) the complainant, and Bhai Khan (PW-2) the eye-witness, whereas Dr. Zafar Abbas (CW-6), who conducted the postmortem examination of Noor Muhammad (the deceased) found the following injuries on his person:- INJURIES 1-A) A lacerated (entry) wound of 0.75cm x 0.75cm with an inverted margin on the anterior abdominal wall on the right mid-clavicular line 3.5cm below the umbilicus. A blackening of margins and suit was present around the wound.
1-B) A lacerated wound of 3cm x 2.5cm with everted margin (exit wound) was present on the back of the abdomen in the right lumber region 6cm lateral to the midline on the right side.
After conducting the postmortem examination, the doctor opined that the cause of death was hemorrhage and shock due to injury to a vital organ, i.e., kidney and blood vessels of the small intestine, which are sufficient to cause death in the ordinary course of nature due to Injury Nos.1 and 2. Both injuries were ante mortem and were caused by firearm weapons. The probable time between injury and death was 10 to 20 minutes, whereas between death and postmortem was about 06 to 08 hours.
The statements of the remaining prosecution witnesses are formal in nature.
7. The learned Assistant District Public Prosecutor gave up PWs-Mumtaz, Muhammad Nawaz, and Allah Ditta as unnecessary and closed the prosecution evidence after tendering the reports of Punjab Forensic Science Agency (Ex. PF and Ex. PG).
8. The appellant was also examined under Section 342, Cr.P.C., wherein he did not opt to appear as his own witness under section 340(2), Cr.P.C.; however, he produced a document (Ex. DD) in his defence evidence. In response to a particular question that why this case was against him and why the PWs deposed against him, the appellant made the following deposition: - "In fact on 04.03.2016 at "Isha Wela" I along with Zeeshan alias Shani and Mohli Khokhar were present in the house of Iqbal Ramana to attend Rasam-e-Mehndi of son of one Haqnawaz who is my relative. Hot words were exchanged between me and Iqbal Ramana and he ousted me from the house at "Isha Wela" I, Zeeshan and Mohli Khokhar were going to my home on bike when we reached near the Pul Bhunianwala Anser and two/three persons were present there and they attacked on us, Anser accused fire upon me, I jumped from the motorcycle and fell down in the watercourse and received injuries upon my knee which was fractured. Many people of the locality and surroundings Dhari rushed to the place of occurrence after hearing firing at the place of occurrence i.e. Pul Bbuniawala, accused Anser etc. thought that I got injuries and killed.
He took my bike and went to the Dhari of Noor Muhammad deceased. I informed the police about the occurrence Anser was proclaimed offender of different police stations in different heinous cases. The police party of different police stations reached the spot and chased to arrest Anser absconder an encounter took place between police party and Anser and Noor Muhammad got injuries in that encounter. The police party was taking him in injured condition to the Hospital, but, he died on the way. To save their skin concerning encounter police lodged fake F.I.R against me and my other relatives and also planted fake recovery against me to support the prosecution story. No empty was collected from the spot where encounter took place i.e. Dhari of the deceased. The police made a false motive against me of abduction of Mst. Shehnaz Bibi, compromise has been affected between the father of Shehnaz Bibi before the occurrence. Nikah of my niece Mst. Areeba Bibi was fixed on 05.03.2016, Anser accused was not agree on our compromise, due to that reason Anser attacked on me on 04.03.2016 to kill me before "Rasm-e- Nikah. I am innocent."
9. After evaluating the evidence available on record in light of arguments advanced from both sides, the learned trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction in the afore-stated terms.
10. We have given our anxious and most thoughtful consideration to both sides' rival submissions.
We have minutely gone through the evidence on record.
11. We find from the evidence that the incident occurred at about 08.45 p.m. on 04.03.2016. Riaz allegedly shot down Noor Muhammad with his rifle; Muhammad Yousaf (PW-1)-the complainant arranged a vehicle and took Noor Muhammad for medical treatment to a hospital, but on the way to the hospital, he succumbed to the injury, and they brought back the dead body of Noor Muhammad at the place of occurrence. The incident occurred at the house of Muhammad Yousaf (PW-1)-the complainant and Noor Muhammad, situated in Chak No.223/JB. The defence brought on the record that Muhammad Yousaf (PW-1)-the complainant, deceased, and eye- witness, resided in joint-owned property; in this regard, Muhammad Yousaf (PW-1)-the complainant, deposed during cross- examination that, "We all the three brothers were residing at our Dera jointly along with our wives in our Agriculture land." Bhai Khan (PW-2), the eye-witness, deposed during cross-examination, "We three brothers namely, I, Noor Muhammad, and Yousaf, were residing jointly in the same house." Israr Hussain S.I. (CW-7)- the Investigating Officer deposed during cross-examination that, "It is correct that the house of the complainant is a joint property of complainant and his brothers. I had not mentioned the name of the other co-owner of the house in my unsealed site plan except the deceased. I had shown a separate house of Bhai Khan in my site plan, but I had not shown the description of the house." The defence admitted that the prosecution witnesses had the same residence, which is the place of occurrence.
The oral complaint (Exh.PA) of Muhammad Yousaf (PW-1)-the complainant was scribed by Israr Hussain S.I. (CW-7) at 09:45 p.m. on 04.03.2016 at the place of occurrence against the accused named therein. The FIR (Exh.PA/1) was chalked out at 10:15 p.m. by Muhammad Ayub 289/HC (CW- 8). The distance between the place of occurrence and the Police Station was 22 kilometers, showing that it was promptly lodged. Muhammad Yousaf (PW-1)-the complainant deposed during cross-examination, "We did not inform the police about the occurrence some other informed the police about the occurrence and police reached there. The police started proceedings at the place of occurrence including my statement." Israr Hussain S.I. (CW-7) the Investigating Officer deposed during cross-examination that, "I received information about the occurrence from Moharrir of police station Langrana. The Moharrir of police station Langrana did not told me that who committed the murder." Israr Hussain S.I. (CW-7)-the Investigating Officer was posted at HIU Circle Bhowana and stated during cross-examination that the office of Homicide Circle, Bhowana, was situated in the police station, Bhowana. Hafiz Muhammad Abdullah S.I. (CW-10) Investigating Officer of the District Investigation BOard (DIB), deposed during cross-examination that "Normally local police reached at. the place of occurrence prior to the police officers of HIU." Muhammad Yousaf (PW-1), the complainant deposed during examination--in-chief that, "I was ready to proceed to the police station but police by their own came at the place of occurrence I made my statement Exh.PA before the police which was reduced into writing and read over to me, I thumb marked the same was token of its correctness and on the basis of said complaint FIR was got registered." He (PW-2) deposed during cross-examination, "We did not inform the police about the occurrence some other informed the police about the occurrence and police reached there.
The police started proceedings at the place of occurrence including my statement." Upon receiving information about the incident, Israr Hussain S.I. (CW-7)-the Investigating Officer, from the office of Homicide Circle, went to the place of occurrence at 09:15 p.m. At the same time, he (CW-7) recorded the statement, of the complainant (Exh. PA); the statement after it was recorded was read over to the complainant word by word, and he was made to understand it. On hearing the statement, he (the complainant) admitted the same to be correct and put his thumb impression below it. The police proceedings were recorded; after the above-said proceedings at the bottom of the fard bayan (Exh. PA); he (CW-7) wrote time at 09:45 p.m. Sometime must have been consumed by the police in writing the statement of the complainant. Israr Hussain S.I. (CW-7) deposed during cross-examination conducted by the complainant side that "I reached at the place of occurrence within half hour of the happening of occurrence. First of all I recorded the statement of the complainant namely Muhammad Yousaf after reached at the spot." As per the prosecution case, it had been specifically mentioned that after the occurrence, the complainant (PW-1) .and eye-witnesses immediately took their brother Noor Muhammad (then injured) to the hospital, but on the way, Noor Muhammad (then injured) succumbed to the injury. Muhammad Yousaf (PW-1)-the complainant deposed during cross-examination that the assailants remained at the place of occurrence for five to ten minutes. He (PW-1) had not stated that the assailants remained at the spot after the occurrence. Muhammad Yousaf (PW-1)-the complainant deposed during cross-examination that, "Vehicle came at the house to take the injured to Hospital within ten minutes. We borrowed Dalla from our relative Asif son of Zahoor who resides in the same village. We telephonically requested him. I did not make telephonically call. Village is at a distance of five/ six squares from the place of occurrence.-----------The injured Noor Muhammad expired when we had covered just distance of two/three Acres from the place of occurrence." Bhai Khan (PW-2), an eye-witness deposed during cross-examination that, "Place, of occurrence is at a distance of 1 1/2 km from village Abadi. Dalla was arranged from the village Abadi and my brother Noor Muhammad succumbed to the injuries in the same. Dalla when he was on the .way to the Hospital." Besides, the witnesses cannot be called upon to explain every minute's delay in reporting the incident, and a rational view has to be taken in ascertaining whether the First Information Report was lodged after an undue delay to afford enough scope for manipulating evidence. The eye-witnesses' account of the prosecution, which has been adduced by the examination of Muhammad Yousaf (PW-1)- the complainant, and Bhai Khan (PW-2), an eye-witness, is quite consistent. It is primarily stated that Riaz (appellant) had made a fire shot that hit on the anterior abdominal wall on the right mid-clavicular line 3.5 cm below the umbilicus. Both the eye-witnesses had seen the occurrence. In the circumstances, the delay in lodging the FIR is not such, which would show that there has been scope for manipulating the prosecution evidence. In any case, the same has also been duly explained. Therefore, the contention of the learned counsel for the appellant that there has been a delay in lodging the FIR shows that the falsity of the prosecution case is devoid of any merit. Thus, there is no delay in reporting the incident and lodging the FIR, which is prompt in the facts and circumstances of the case. Hence, the question of its being doubtful on this ground cannot be sustained.
12. The eye-witness account of Muhammad Yousaf (PW-1) - the complainant, and Bhai Khan (PW- 2), an eye-witness, is corroborated by the medical examination. Dr. Zafar Abbas (CW-6) conducted the post-mortem examination of the dead body of Noor Muhammad deceased on 05.03.2016 at 03:30 a.m. and opined that the time elapsed between injuries and death was about 10 to 20 minutes, whereas between death and post-mortem was about 6 to 8 hours. The testimony of Dr. Zafar Abbas (CW-6) and the post-mortem report (Exh.CW6/A) fully corroborate the ocular account that the injury was received by the deceased with a firearm and the time of occurrence.
Muhammad Ashraf 565/Constable (CW-3) deposed during cross-examination, "THQ Hospital, Bhowana is at a distance of 2km from police station Bhowana, however, both the places falls in the same City. Chak No.223 is connected with Bhowana through mattled road. I along with I.O. reached at the place of occurrence at about 11:00 p.m. I left the place of occurrence with the dead body and police papers at about 12:00 a.m mid night. It consumed normally half an hour to travel from Chak No.223 to THQ Hospital, Bhowana and not 20 minutes as suggested. At about 1:30 a.m. I handed over the dead body and police papers to the M.O. Voluntarily stated at that time road was under construction." The doctor (CW-6), who conducted the postmortem examination, led to the conclusion that the deceased died a homicidal death. The tenor of cross- examination of the witnesses also does not dispute that the documents were belatedly handed over to Dr. Zafar Abbas (CW-6). The deceased died a homicidal death. Thus, there is no delay in conducting a post-mortem examination of the dead body of Noor Muhammad.
13. As far as the ocular account is concerned, both eye-witnesses, i.e., Muhammad Yousaf (PW-1)- the complainant, and Bhai Khan (PW-2), have stood firm in their cross-examination about the identity of the accused, time, place, and manner of assault. There is hardly any discrepancy in the statements and the narration of the facts by eye-witnesses P.W-1 and P.W-2 about the incident.
During cross-examination, Muhammad Yousaf (PW-1)-the complainant, deposed as under: - "We were sitting in the room of Noor deceased. Both the rooms have their opening doors towards East. We were sitting in the rooms situated on Southern side. It is correct that the opening doors of the room are not in the middle of the wall and are in the corner of the rooms. We were sitting on four/five cots. In front of the door my brother Noor Muhammad deceased was sitting. The accused entered in Haveli while making firing and raising lalkaras. We had no time to close the door of our room. PW volunteered our brother Noor Muhammad went outside the room and we had to follow him. I cannot tell the measurement of my rooms in feet however, it consists of two Garders. The accused/assailants came on the door of our room. The assailants made firing upon us but we luckily saved."
The above eye- witness ' s deposition has been clear and consistent while describing the sequence of the incident on the day of the occurrence. Israr Hussain S.I. (CW-7) deposed during a cross- examination conducted by the complainant that, "It was version of the complainant and PWs that they were present in the said room when accused persons came there and it was also the version of the complainant party that when they came out of the said room accused party launched assault upon them. This version of the complainant party was found correct by me during the course of investigation." The incident tallies the injury received by the deceased in the post-mortem report. The site plan (Exh. CW-10/A) also fully corroborates the ocular account. Since the parties were known to each other, there is no question of any misidentification by the eye- witnesses. Not only does the post-mortem report support the statements of these two witnesses, Muhammad Yousaf (PW-1)-the complainant, and Bhai Khan (PW-2), but FIR also has been lodged promptly, erasing any doubt of manipulation in it. They are natural witnesses, and we find no reason to disbelieve the incident as they narrated. The trial court rightly believed the statement of the eye-witnesses, which was further corroborated by the injury report as was proved by the doctor performing the post-mortem. Rather defence version put to the complainant (PW-1) through suggestions, which was replied to in negative, was that "It is not in my knowledge that on the night of occurrence there was Mehndi function of one Sarfraz and the accused Iqbal and Riaz were present there. It is correct that if the accused Riaz has to visit his own house from the house of Sarfraz he has to cross said Bhuniyan Wali Bridge. It is incorrect that accused Riaz and Iqbal had altercation between them in the function. it is incorrect that Anser sit ambushed at Bridge Bhunyian Wali waiting arrival of Riaz accused along with his companions. It is incorrect to suggest that when Riaz accused reached there Anser and his companions made firing upon them. It is incorrect to suggest that companions of Riaz fled away from the place and Riaz fell down in the watercourse. It is incorrect to suggest that Anser etc. left the said place believing that Riaz accused had died. It is incorrect to suggest that knee of the Riaz accused was fractured at that time and he was unable to move. It is incorrect to suggest that this matter was reported to the police by the Riaz etc. telephonically. PW volunteered stated that in the days of occurrence Riaz accused was proclaimed offender. It is incorrect that my volunteer portion is false. It is incorrect that police, arrested me and Anser at the spot and took us to Police Station along with the dead body. It is also incorrect to suggest that police threatened us to become complainant of this case against the Riaz accused. It is also incorrect to suggest that police party reached at the place of occurrence upon the information of Riaz accused in order to arrest P.O Anser and encounter took place between Anser and police party. It is further incorrect to suggest that during said encounter Noor Akbar was murdered. It is incorrect to suggest that Anser was apprehended by the police and kept in their custody for three months and in order to save their skin from the above said encounter shown his arrest from District, Hafizabad."
Similarly, suggestions were put to Bhai Khan (PW-2), and he (PW-2) denied the same. It is pertinent to mention that the accused-Riaz failed to prove his specific defence. The well-settled proposition of law is that when a specific plea is raised by the accused, he has to prove the same. The accused had not produced even a single witness to prove that he had made the call to the police and, on information furnished by him, police arrived. However, the accused had not suggested to the prosecution witnesses that first of all, the police came to Bridge Bhunyian Wali and meet with him.
On his complaint, police went to the Dera/house of the deceased, and a police encounter occurred.
Even the accused suggested to the complainant that his knee was fractured but had not produced any evidence that he got medical treatment through police nor produced any documentary evidence in this regard. As already discussed above, it is not proved that the accused remained under treatment for his knee fracture and a police encounter occurred at the complainant's residence. So, the arguments that the accused informed the police about the incident and received an injury due to a fire shot made by one Ansar are of no avail. Riaz (appellant) was proclaimed offender. Israr Hussain S.I. (CW-7) deposed during a cross-examination conducted by the complainant that, "It is correct that I made my best efforts to arrest the accused Riaz but, he remained absconder. It is correct that during investigation it came into my knowledge that the accused Riaz was involved in number of cases of concerning said dacoity, robbery and murder and in maximum such cases he was an absconder." Contrary to the suggestions put to Muhammad Yousaf (PW-1)-the complainant, that the accused Riaz, on a faithful night, went to attend the Mehndi function in the house of Sarfaraz. Ghulam Shabbir, Inspector, DIB (CW-9), deposed that Riaz went to the house of "Mumtaz" during cross-examination. He (CW-9) deposed during cross-examination by the complainant: "During investigation it was found that accused Riaz was present in his Village on the night of occurrence. It was oral information furnished to me that on the evening of occurrence, accused Riaz was drunk and he visited the house of one Mumtaz. House of Mumtaz is at a distance of 1 3/4 Km from the spot. Said house is on the western side of the village, while place of occurrence is on the eastern side of the main Abadi of the Village. Pull Bhunian is at a distance of half km from Abadi Village towards west. Place of occurrence is at a distance of about 700 meters from Abadi of Village." However, Ghulam Shabbir Inspector, DIB, (CW-9), deposed during cross-examination conducted by the accused that, "It was the version of accused that on that on the night of occurrence one Ansar attacked upon Riaz accused at Pull Bhoniya Wala, and at that time one Shani and one Shah Nawaz were also accompanying accused Riaz. I had not joined said Shani and Shah Nawaz in investigation." The defence suggested to Bhai Khan (PW-2) that Riaz was attending the marriage of "Zafar son of Haqnawaz." Bhai Khan (PW-2) deposed that, "It is incorrect that on the day of occurrence there was marriage ceremony of one Zafar son of Haqnawaz belonging to our "BRADERI." It is incorrect that in the alleged marriage ceremony Anser and Riaz accused were also present." Riaz, appellant, in his statement under section 342, Cr.P.C deposed that he was present in the house of Iqbal Ramana to attend Mehndi of his son Haqnawaz. More and more inconsistencies in the plea of defence make the defence stance extremely unreliable. As already discussed above, it is not proved that the accused remained under treatment for his knee fracture and a police encounter occurred at the complainant's residence.
14. So far as the eye-witnesses being relatives of the deceased is concerned, we have carefully scrutinized and appreciated before reaching a conclusion on the conviction of the accused in a given case that the testimony of eye-witnesses, who are close relatives of the deceased, cannot be discarded on the plea of relationship. In the instant case, though Muhammad Yousaf (PW-1)-the complainant, and Bhai Khan (PW-2) are brothers of the deceased, have stated their presence at the place of the incident. The medical evidence on record corroborates the statement of Muhammad Yousaf (PW-1)- the complainant, and Bhai Khan (PW-2). From the deposition of the witnesses already mentioned supra, the witnesses have sufficiently explained their presence at the place of the occurrence. There is no reason for this Court to disbelieve them simply because they are relatives of the deceased.
15. As far as the argument of the learned counsel for the appellant that four walls were not constructed at the place of occurrence, in the inquest report, it was mentioned that the dead body was lying at "Dhari"; blackening on ' injury suggests that fire was made from close range and confrontation brought on the record by the defence is concerned, Muhammad Yousaf (PW-1)-the complainant deposed during cross-examination that, "At that time my house was consists of two rooms and one under construction room. It is incorrect that my house has no boundary wall. Pw volunteered that from one side there is a small wall and on the other side there is complete wall."
Bhai Khan (PW-2) deposed during cross-examination that, "Police prepared the site plan upon our instruction. I got mentioned to the police and draftsman that my house is on northern side of place of occurrence. It is incorrect to suggest that I introduced a new fact that I am residing with my brother jointly just to becom" the eye-witness of the occurrence. Accused persons were five in number who came to the place of occurrence." The defence by putting suggestions admitted that Bhai Khan (PW-2) was present at the place of occurrence at the time of preparation of site plans by the police and draftsman. Israr Hussain S.I. (CW-7) deposed during cross-examination that he had used the word "DHARI" for the presence of the dead body in the inquest report; he (CW- 7) replied to the suggestion that "It is incorrect to suggest that the word "DHARI" is specifically used for cattle shed. Pw volunteered that the residence out of Abadi Deh is also called as"DHARI". In site plan I mentioned the place of occurrence as "residential Dhari". I had shown "Behak" of Noor Muhammad separate from the house in site plan and there was no cattle room at that place. The word "Behak" means open place for tiding the cattle. I had mentioned in site plan that place of occurrence was "residential Dhari" of Noor Muhammad deceased." The defence admitted the joint residential house of the deceased, and the complainant by putting the specific question to Rizwan- ul-Haq Inspector (CW-11); he (CW-11) deposed during cross-examination that, "Deceased had two brothers namely Khan and Muhammad Yousaf. At the time of visiting the place of occurrence I also saw the room for the residence of the complainant which was adjacent to the room of the deceased and was located on the right side of the room of the deceased." The contention that the blackening on the injury shows that the fire shot was made from close range concerns, as per the prosecution case, the injury was caused by rifle 244 bore, and if a firearm like a rifle 244 bore is discharged from a distance of not more than four feet blackening would appear. A rifle's stock receiver and barrel is usually 30 inches long. The length of the rifle's stock receiver, barrel and arms of accused are a material factor that cannot be ignored. The distance of 21/2 feet to four feet covered and blackening from such distance can be caused. Regarding confrontation brought on the record by the defence, the supplementary statements (Bardaryaft) given by the witnesses before the subsequent Police officers are meant to be brief statements and could not take the place of evidence in the Court. Where the omissions are vital, they merit consideration, but a minor omission will not justify a finding by a Court that the witnesses concerned are self-contained liars.
The prosecution witnesses had not made a definite improvement on the version given in the Fard bayan (Exh.PA) and private complaint (Exh.PD). No doubt, beyond every reasonable doubt, the prosecution has to establish the charge. Still, the law does not insist that the prosecution proved the same with arithmetical accuracy as it is not always possible for the witness to give photographic memory or description owing to human limitations. It is relevant to mention here that photographic memory can hardly dominate while appreciating the evidence if the prosecution evidence proves the incident. It is hence enough if a particular fact is missed by one or more witnesses having personal knowledge, provided, of course, his/their evidence on the point in question is trustworthy. In that case, the contradictions, although vital, would come to be effaced and would not be fatal to the prosecution, i.e., it cannot then be said that the prosecution put its head in a noose. The defence takes the specific defence, and the onus lies on the defence to prove it, but defence failed to adduce an iota of evidence.
16. Regarding motive, Muhammad Yousaf (PW-1) deposed during examination-in-chief that the appellant abducted Mumtaz alias Zafar's daughter Mst. Shehnaz Bibi, his close relative, and Noor Muhammad, deceased, demanding back abducted Mst. Shehnaz from the appellant. Due to this grudge, the appellant murdered Noor Muhammad, deceased. Muhammad Yousaf (PW-1) deposed during cross-examination that, "Mst. Shehnaz Bibi was the daughter of my maternal cousin, and she was engaged with a son, Nasir Muhammad Yousaf (PW-1)." The defence has not denied that Riaz abducted Mst. Shehnaz Bibi. Instead, it was the plea of the appellant Riaz that compromise was effected between him and Zafar. On the following day of the occurrence, Nikah, of the niece of Riaz accused, was going to be performed with the brother of Mst. Shehnaz Bibi. But the appellant failed to produce Zafar, father of Mst. Shehnaz Bibi in his defence. Riaz-appellant has not stated that his niece's marriage took place with the brother of Mst. Shehnaz Bibi. The appellant admitted that the dispute between him and Zafar remained on the abduction of Mst. Shehnaz Bibi. But the fact remains that the cross-examination conducted by the learned counsel for the defence reveals that the defence indirectly admitted the motive part of the evidence.
17. As far as non-recovery of crime empty from the place of occurrence and weapon of crime is concerned, it is the consistent view of the country's superior courts that the recovery of crime empty and weapon of offence are always corroborative pieces of evidence. It is never considered the mainstay of the prosecution for conviction or acquittal of any person in isolation. A conviction can be passed that the ocular account leaves no room for doubt about the involvement of the culprits in the commission of the offence and that medical evidence fully corroborates the same.
18. The evidence of the eye-witnesses, corroborated by the circumstances arising out of the other materials on record, clearly establishes that the appellant-Riaz had murdered Noor Muhammad to death by causing him firearm injury. The injury intentionally caused by the appellant-Raiz at the vital part of the deceased was sufficient in the ordinary course of nature to cause death. Given the above circumstances, we have concluded that the prosecution has proven its case against the appellant-Riaz beyond any shadow of a doubt. However, we have observed the factors which have persuaded us not to uphold the capital sentence of the appellant as the motorcycle (P-3) and Rifle 244 bore (P-4) along with six live bullets (P-5/1-6) are concerned, neither number of motorcycle (P-3) was mentioned in FIR or the private complaint, nor ownership of the motorcycle (P-3) was brought on the record and no crime empty was recovered from the place of the occurrence, so recovery of Rifle 244 bore (P-4) is of no consequence. As the appellant has been convicted and sentenced to death for the murder of Noor Muhammad, the deceased, in such an eventuality, the same can be considered a mitigating circumstance. Based on the grounds discussed hereinabove, we believe that mitigating circumstances exist about the quantum of the appellant's sentence. Therefore, in our view death sentence awarded to the appellant is quite harsh. The well-recognized principle is that the accused is entitled to the benefit of the doubt as an extenuating circumstance while deciding his question sentence. The Hon'ble Supreme Court of Pakistan holds it in the case titled "Dilawar Hussain v. The State" (2013 SCMR 1582) in which the Hon'ble Supreme Court of Pakistan has observed on page 1590 as under: - "---It has neither been the mandate of law nor the dictates of this court as to what quantum of mitigation is required for awarding imprisonment for life rather even an iota towards the mitigation is sufficient to justify the lesser sentence. According to our estimation, even a single stance providing mitigation or extenuating circumstance would be sufficient to award lesser punishment as an abundant caution. In such circumstances, if the court is satisfied that there are certain reasons due to which death sentence is not warranted, the court has no other option but to improve second sentence of imprisonment for life while extending benefit of the extenuating circumstances to the convict in a just and fair manner---."
19. In these circumstances, the Appeal bearing No.43590-2019, filed by the appellant, Raiz, son of Ahmad Yar, in the private complaint filed under sections 302, 109, 114, 148, 149 P.P.C. titled "Muhammad Yousaf v. Riaz, etc." filed in FIR No.58/2016, dated 04 .03.2016, under. sections 302/148/149, P.P.C, Police Station Langrana, District Chiniot is dismissed. However, his (the appellant's) death sentence is converted into imprisonment for life. The benefit of Section 382(b) of Cr.P.C is also extended to the appellant, whereas the compensation amount, as well as sentence qua non-payment of the compensation amount imposed by the learned trial court, shall remain intact upon the appellant (convict). Murder Reference No.74 of 2019, forwarded by the learned trial court for confirmation of the sentence of death inflicted upon the convicts fails, which is answered in Negative.
20. So far as PETITION FOR SPECIAL LEAVE TO APPEAL No.26329 of 2019 seeking the conviction of respondents Nos.2 to 6 by law is concerned, we have noted that as the role of respondents Nos. 2 and 6, i.e., Irshad alias Shahadta, Noor Akbar alias Mammu, 'Khan, Iqbal, and Munir, is concerned, there being no conflict or contradiction in the findings of the learned trial court about the role of the respondents Nos. 2 to 6. On perusal of the record, it reveals that the role attributed to respondent No.2 was of ineffective firing towards the complainant (PW-1) and Bhai Khan (PW-2), eye-witness, and the role of lalkara was assigned; respondent No. 3 was not named in the FIR (Exh. PA/1); the general role of ineffective firing was assigned to respondents Nos. 4 and 5 and respondent No.6 was named in the case through Exh.PB, after six months and twenty days of occurrence. For what has been discussed above in the light of prosecution evidence, medical evidence, and documentary evidence, the acquittal of respondents Nos. 2 to 6 does not suffer from any illegality to call for this Court's interference with the impugned judgment. We have also taken note of the settled principle of criminal jurisprudence that unless it can be shown that the lower court's judgment is perverse or entirely illegal. No other conclusion can be drawn except the guilt of the accused or there has been misreading or non-reading of evidence resulting in a miscarriage of justice. Even otherwise, when a court of competent jurisdiction acquits the accused persons, the double presumption of innocence is attached to their case. The acquittal order cannot be interfered with, whereby an accused earns double presumption of innocence as held in Muhammad Mansha Kausar v. Muhammad Ashgar and others (2003 SCMR 477). In this case, the prosecution has not been able to bring on record adequate incriminating evidence against respondents Nos. 2 to 6., which connects them with the alleged crime. The learned trial Judge has advanced valid and plausible reasons for recording acquittal in favor of respondents Nos. 2 to 6.
The judgment of acquittal does not call for any interference. Consequently, we find no merit in this Petition bearing No. 26329 of 2019, which is dismissed as being without merit.