ROZI KHAN BARRECH, J. The appellant, namely Ghulam Rasool alias Mah Khan, son of Fazal Karim, allegedly murdered his uncle Haji Musa, son of Haji Muhammad Iqbal and his cousin Bashir Ahmed, son of Haji Musa at the house of complainant Nazir Ahmed (son of the deceased Haji Musa) and brother of the deceased Bashir Ahmed) situated near New Tableeghi Markaz Roghani Road Chaman within the precincts of Levies Station Chaman at about 1:45 pm on 25.12.2021. For the commission of the said offence the appellant was booked in FIR No. 103 of 2021 registered at the said Levies Station on 25.12.2021 at 3:50 pm. After a regular trial, the appellant was convicted under section 302(b), P.P.C. as Ta'zir vide judgment dated 31.08.2022 ('the impugned judgment') passed by learned Additional Sessions Judge Killa Abdullah at Chaman ('the trial Court') in Case No. 01 of 2022 and sentenced to death and also directed to be hanged by the neck till death subject to confirmation by the High Court. The appellant was also directed to pay compensation of Rs.500,000/- each to the legal heirs of the deceased Haji Musa and Bashir Ahmed as provided under section 544-A, Cr.P.C in default of payments, the appellant was further directed to suffer S.I for six months with benefit of section 382-B, Cr.P.C.
2. Aggrieved from the impugned judgment, the appellant has assailed his conviction and sentence through Superintendent Central Prison Mach by way of filing Criminal Jail Appeal No. 55 of 2022, whereas the trial court has sent Murder Reference No. 13 of 2022 for confirmation or otherwise of the death sentence awarded to the appellant.
Since both the cases are arising out one and the same judgment of the trial court, therefore, the same are being disposed of through this single judgment.
3. We have heard the learned counsel for the parties and gone through the available records with their valuable assistance.
4. For the purpose of safe administration of justice, it is essentially required of the Court to satisfy itself whether the eye-witness is natural and his presence on the spot could reasonably be believed, and that whether the testimony is free from any kind of intrinsic improbabilities and in the case of an interested witness whether any corroboration is forthcoming.
5. The prosecution's case primarily rests on ocular testimonies of the complainant Nazir Ahmed (PW-1), Haji Fazal Karim (PW-2), Syed Rasool (PW-3), and Bibi Hameedo, widow of deceased Haji Musa (PW-4). All of them stated in their statement that on 25.12.2021 at 1:45 pm, the appellant Ghulam Rasool armed with a pistol fired upon Haji Musa and Bashir Ahmed, who received injuries and later on succumbed to the injuries. The appellant is the nephew of deceased Haji Musa, cousin of deceased Bashir Ahmed, son of Haji Fazal Karim (PW-2), brother of Syed Rasool (PW-3), and also a nephew of Bibi Hameedo (PW-4). It also came on record that the appellant, the deceased and above PW Nos. 1 to 4, resided in one house situated near New Tableeghi Markaz Roghani Road Chaman. The FIR was lodged on the written report of Nazir Ahmed (PW-1) promptly without any delay. The appellant is the only nominated accused in the FIR lodged by the complainant. He has been attributed the role of effective firing upon the deceased. The complainant is also an eye- witness of the occurrence. He stated during cross-examination that he was also present at the place and time of occurrence. We have observed that all the above witnesses have given detailed accounts of the incident. They were natural witnesses of the occurrence, and being inmates of the house, they were supposed to be present there. Their presence in the house in the given circumstances cannot be doubted. The defense, despite lengthy cross-examination, could not shatter their trustworthy evidence. Not a single suggestion has been put to the said PWs of sparing the real culprits and substituting him with the appellant. We scanned the evidence of the above witnesses but have not been able to find any previous enmity, or ill will attributed to the said witnesses. The defense has not challenged the time, the venue, and the manner of occurrence nor alleged any motive to rope in the accused in the case of capital punishment. Although the above PWs are near relatives of the deceased, but it has been settled by the superior courts that mere relationship of the witnesses with the victim would not discard his/her evidence if it is otherwise confidence-inspiring and trustworthy.
6. It is stated earlier that a related witness cannot be termed as an interested witness under all circumstances. A related witness can also be a natural witness. If an offence is committed within the presence of family members, then they assume the position of natural witnesses. In case their evidence is reliable, cogent, and clear, the prosecution case cannot be doubted. Learned counsel for the appellant could not point out any plausible reason as to why the above PWs have falsely involved the appellant in the present case and let of the real culprit, who has committed the murder of their near relative. Substitution in such like cases is a rare phenomenon. Even otherwise, PW-2 is the father of the appellant, and PW-3 is the brother of the appellant; how can it be possible that they falsely involved the appellant in the present case and let of the real culprit?
7. It may be observed that the medical evidence is in complete harmony with the ocular testimony of PW-1 to PW-4 and no conflict could be pointed out to create a dent in the prosecution case. Dr. Abdul Hameed Khan, Medical Officer District Headquarter Hospital Chaman (PW-7) produced the medical certificate of deceased Haji Musa (Ex.P/7-A) and medical certificate of deceased Bashir Ahmed (Ex.P/7-B), according to which both the deceased received injuries by means of firearms.
Besides, the medical evidence, it also supported the prosecution version.
8. We have observed that besides the crime empties, which were taken into possession from the place of occurrence, the weapon of offence i.e., 30 bore pistol, was also recovered from the possession of the appellant. Both the crime empties and crime weapon i.e., 30 bore pistol were sent to the firearms expert, and the Investigation Officer obtained a positive report (Ex.P/9-D), according to which the crime empties in Parcel No.1 have been fired from a 30 bore pistol present in Parcel No.
4. Blood-stained earth, blood-stained clothes of the deceases were also sent to the Forensic Science Laboratory (FSL), and in this regard the report is positive, which is available on record as Ex.P/9-E. The recovery witnesses have also been subjected to cross-examination by the defense, but nothing favorable to the appellant or adverse to the prosecution could be brought on record.
9. The next piece of evidence is the confessional statement of the appellant recorded under section 164, Cr.P.C, which was recorded by Asmatullah, Judicial Magistrate Chaman (PW-8), who deposed that on 07.01.2022 the appellant was produced before him by the investigation officer for recording his statement under section 164, Cr.P.C. He recorded the statement of the appellant under section 164, Cr.P.C and issued a certificate in this regard. The above statement of PW-8 reveals that he has not given sufficient time for reflection to the appellant before recording his statement, and it was incumbent upon PW-8 to have given sufficient time for reflection i.e., 30 minutes with three intervals. Henceforth, by not doing so, PW-8 failed to observe precautions held necessary before recording a confessional statement. PW-8 neither stated a single word in his statement that either he has given sufficient time for reflection to the appellant nor did he mention the time given for reflection in the certificates issued beneath the confessional statement of the appellant; therefore, the confessional statement of the appellant does not appear to be truly and voluntary. Even otherwise, the appellant was arrested on 25.12.2021, and he was produced before the Judicial Magistrate Chaman on 07.01.2022 after a delay of thirteen days of his arrest for recording his confessional statement under section 164, Cr.P.C. The said delay has not been plausibly explained by the prosecution, which has highly injured its credibility, and the same cannot be accepted as confidence-inspiring against the appellant. Therefore, this piece of evidence is also of no avail to the prosecution. Even otherwise, if the confessional statement of the appellant is excluded from consideration, it has been observed that the direct evidence in the form of ocular account furnished by PW-1 to PW-4 (eye-witnesses), recovery of the crime weapon, and positive report of the Firearms Expert are inspiring confidence, which are also supported by the medical evidence.
10. Now, coming to the sentence awarded to the appellant under section 302(b), P.P.C., there is no doubt that where an offence is proved, it has to be met with the maximum sentence; therefore, however, there is no yardstick to restrict or curb the discretion of the trial court while passing the sentence. It is the circumstances of each case which justify the severity or leniency in passing the legal sentence. No motive was alleged by the prosecution, and the question as to what happened prior to the scene of occurrence that prompted the appellant to take away the life of the deceased are the circumstances as mitigating circumstances.
11. In this regard, we respectfully refer to the case of Mir Muhammad alias Miro v. The State (2009 SCMR 1188) wherein the 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."
12. Moreover, it is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence, which resulted in the death of Haji Musa and Bashir Ahmed (both deceased), therefore, in our view, the death sentence awarded to the appellant is quite harsh.
13. In the light of the above discussion, the conviction of the appellant, namely Ghulam Rasool alias Mah Khan, son of Fazal Karim, as awarded by the trial court through the abovementioned judgment, is maintained, but the sentence- of death awarded to the appellant, under section 302(b), P.P.C. is altered to imprisonment for life, whereas the compensation amount and sentence in case of default in payment of compensation amount as held by the trial court shall remain intact.
14. Consequently, with the above modification in the sentence of the appellant, Ghulam Rasool alias Mah Khan, son of Fazal Karim, Criminal Jail Appeal No.55 of 2022, is hereby dismissed. The Murder Reference No. 13 of 2022 is answered in the NEGATIVE. The death sentence awarded to the appellant Ghulam Rasool alias Mah Khan, son of Fazal Karim, is not confirmed.