Asjad Javaid Ghural, J. Through above captioned appeal, appellant Munir Hussian Shah has challenged the vires of judgment dated 26.09.2019 passed by the learned Additional Sessions Judge, Shorkot in case FIR No.248, dated 16.04.2017, in respect of offence under Sections 302 & 458 PPC, registered at Police Station Shorkot City, District Jhang whereby he was convicted and sentenced as under:- Under Section 302(b) PPC Death and to pay the compensation of Rs.2,00,000/- under Section 544-A Cr.P.C. to the legal heirs of deceased Husnain Abbas and in default thereof to further undergo simple imprisonment for six months.
Under Section 458 PPC Rigorous Imprisonment for five years with fine of Rs.10,000/- and in default thereof to further undergo simple imprisonment for two months.
2. Murder Reference No.300/2019 sent up by the trial Court for confirmation or otherwise of death sentence of appellant will also be decided through this common judgment.
3. The prosecution story unfolded in the crime report (Ex.PA/1) registered on the complaint of Shafqat Abbas (PW-5) was that on 16.04.2017 he alongwith his brothers Husnain Abbas, Sajid Abbas and one Jahangir Abbas (guest) were sleeping in the courtyard. Due to illness of his child, complainant was waking. At about 02:00 (night) Munir Hussain (appellant) while armed with repeater 12-bore alngwith two unknown armed persons entered into the courtyard of his house.
Appellant raised lalkara to teach a lesson for not giving the land of his choice and made two consecutive fires with repeater 12 bore at Husnain Abbas hitting at the right thigh and right side of his abdomen. On voice of firing, Sajid Abbas and Jahangir witnessed the occurrence in the light of bulb. Accused persons while making lalkaras and resorted to aerial firing fled away from the spot.
The injured was shifted to Civil Hospital, Shorkot but he succumbed to the injuries.
Motive behind the occurrence was that his land was situated on the road and the appellant intends to get the same exchange with his own land and on refusal, he committed this crime.
4. Muhammad Hayat Sargana, Inspector (PW-7) visited the place of occurrence, inspected dead body of deceased Husnain Shah, prepared injury statement (Ex.PC) and inquest report (Ex.PD). He prepared rough site plan (Ex.PK), obtained a piece of blood stained Khais vide memo (Ex.PH) and took into possession electric bulb vide memo (Ex.PG). He recorded statements of the eye witnesses under Section 161 Cr.P.C. He arrested the appellant on 10.05.2017, who led to the recovery of repeater 12-bore (P-6) and motorcycle (P-7) vide recovery memos (Ex.PI) & (Ex.PJ). During investigation, the appellant was found involved in this occurrence and he got prepared report under Section 173 Cr.P.C.
5. Dr. Saif-ur-Rasool (PW-2) held autopsy on the dead body of deceased Husnain Abbas on 16.04.2017 and observed two injuries on right side of lower abdomen and right thigh at upper and outer part. According to his opinion, cause of death was due to injury No.1 which damaged major blood vessels (abdominal aorta, IVC and right iliac artery) caused hemorrhage and shock. Injuries No.1 & 2 were sufficient to cause death in ordinary course of nature. Probable duration between injuries and death was immediate whereas between death and postmortem examination about 6 to 8 hours.
6. At the commencement of the trial, the trial Court framed a charge against the appellant to which he pleaded not guilty and claimed to be tried.
The prosecution produced 07-witnesses besides the reports of Punjab Forensic Science Agency (Ex.PL & Ex.PL/1). The appellant, in his statement under Section 342 Cr.P.C. had denied and controverted all the allegations of fact leveled against him. He neither opted to make statement under Section 340(2) Cr.P.C. on Oath nor produced any evidence in his defence.
7. Learned trial Court, upon conclusion of the trial, convicted and sentenced the appellant as stated above. Hence, this criminal appeal and the Murder Reference.
8. We have heard learned counsels for the appellant, learned Addl. Prosecutor General appearing for the State assisted by learned counsels for the complainant and gone through the record with their able assistance.
9. This unfortunate incident took place on 16.04.2017 at about 02:00 a.m. (night), which was reported to the police promptly on the same day at about 03:30 a.m. i.e. within 1 1/2 hours and formal FIR (Ex.PA/1) was chalked out at 03:45 a.m., despite the fact that inter-se distance between the place of occurrence and the police station was twenty six kilometers containing name of the accused with his specific role of making fire shots at the deceased, which not only confirms presence of the eye witnesses at the spot but also excludes every hypothesis of deliberation, consultation and fabrication prior to the registration of the case and also rules out the possibility of mistaken identity or substitution. Reliance is placed on case reported as Noor Sultan and others ..Vs.. The State (2021 SCMR 176), wherein it has been laid down as under:- "The instant occurrence has taken place on 6.15 p.m. while the matter was reported to the police within 2.15 hours whereas inter-se distance between the place of occurrence and police station is 16 kilometers. Promptness in reporting the matter to the police reflect that there is no chance of consultation or deliberation at the part of the prosecution."
Similarly, in case reported as Shaheen Ijaz alias Babu ..Vs.. The State (2021 SCMR 500), it has been laid down as under:- ".....petitioner's nomination in a broad day light incident by resident witnesses hardly admits a space to entertain any hypothesis of mistaken identity or substitution. Prompt recourse to law straight at the police station excludes every possibility of deliberation or consultation."
In case reported as Muhammad Waris ..Vs.. The State (2008 SCMR 784) it has been laid down as under:- "The names of the said two eye-witnesses could not have been mentioned in such a promptly lodged F.I.R. if they had not been with the deceased persons at the time of their death."
11. Case of the prosecution hinges upon, ocular account, medical evidence, recovery and motive part of the occurrence. In order to prove ocular account, Shafqat Hussain, (PW-5)/complainant while appearing in the dock in the court room reiterated the contents of the crime report deposing that on the fateful day, Husnain (deceased), Jahangir Abbas (PW-6) and Sajid Abbas (given up PW) were sleeping in the courtyard of his house, whereas, he was awoken, due to ailment of his son.
Electric bulb was lid in the courtyard. At about 2.00 a.m. (night) appellant Munir Hussain while armed with repeater gun alongwith two unknown armed persons, trespassed into the courtyard of his house. Appellant raised lalkara to teach us lesson for not giving agricultural land of his choice and made two repeated fire shots, which landed on the right thigh and right side of abdomen of his brother Husnain Abbas. Witnesses saw the occurrence in the light of bulb. Accused persons left the place of occurrence while raising lalkaras. They shifted the injured to THQ, Hospital, Shorkot in a car but he succumbed to the injuries. Motive behind the occurrence was that the land of deceased was situated at road side and appellant wanted to exchange the same with his own land and upon his refusal committed his murder. Jahangir Abbas, (PW-6) while appearing in the dock in the Court room unflinchingly supported the complainant on all material points and deposed that on the fateful day, he went to the house of the complainant to see his ailing son and in his view the appellant made two fire shots with his repeater gun, which landed at the right side of abdomen and thigh of deceased Husnain Abbas. During the course of cross-examination, both the witnesses of ocular account remained firm and consistent on all material aspects of the incident qua the date, time, place, mode and manner of the occurrence, name of the appellant, weapon of offence and the role played by him for committing murder of the deceased and the defence could not shatter their credibility on material points.
Learned counsel for the appellant submits that acclaimed eye witness Jahangir Abbas (PW-6) was the resident of Thatti Ailchi, which was 22/23 kilometer away from the place of occurrence, as such his presence in the house of the complainant, in odd hours of night was highly improbable. We tend not to agree with this submission. No doubt the place of occurrence was not the abode of this witness but this fact alone cannot be made universal rule for disbelieving the presence of an eye- witness at the place of occurrence. If a witness furnished a plausible explanation of his presence at the place of occurrence at the relevant time the same ought to have been considered and if the same was found plausible or appeals to a prudent mind, the same shall be given weightage, irrespective of the fact that the acclaimed eye-witness was the resident of the same vicinity or not.
Here in the instant case not only the complainant in crime report (Ex.PA/1) explained that the aforesaid witness came to his house as a guest but the said witness while appearing in the dock in the court room categorically furnished the reason of his visit to the house of the complainant in the manner that " On 15.04,2017, I went to visit the son of Shafaqat Hussain, who was ill." This witness was close relative of the complainant and in our rural set up, close relatives used to visit the house of each other on multiple occasions, including marriages, bereavement or to see an ailing family member and their overnight stay cannot be seen with doubt. Even otherwise, on this point the defence has questioned (PW-6) at a considerable length but he remained firm and consistent and the defence failed to shake his testimony in this regard. The crime report was lodged with sufficient promptitude, and (PW-6) faced the test of lengthy cross-examination with full confidence and described the incident minutely, which established his presence at the venue of occurrence at the relevant time without any doubt. Even if for the sake of arguments, testimony of the said witness is excluded from consideration even then it would not be helpful to the defence. In the matter of appreciation of the evidence it is not the number of witnesses rather quality of evidence is worth importance. There is no requirement under the law that a particular number of witnesses are necessary to prove/disprove a fact. It is time honoured principle that evidence must be weighed and not counted.
12. Shafqat Hussain, (PW-5)/ complainant, was the resident of the same house and his presence in his own house at night time cannot be questioned. He while appearing in the dock before the trial Court categorically raised accusing finger towards the appellant for making two fire shots on the right side of abdomen and right thigh of deceased Husnain. He faced the test of lengthy cross- examination with full confidence, which could not be crushed by the defence with even a slight difference. This sole statement is sufficient to believe the prosecution version and bring home guilt against the appellant beyond shadow of doubt. Reliance is placed on case titled "NIAZ-UD-DIN and another Versus THE STATE and another" (2011 SCMR 725), "The statement of Israel (PW.9) the eye-witness of the occurrence is confidence inspiring, which stand substantiated from the circumstances and other evidence. There is apt observations appearing in Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) that even in a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable. The reason being that it is the quality of evidence and not the quantity which matters."
13. Learned counsel for the appellant emphatically argued that both the acclaimed eye-witnesses were closely related to the deceased as such their testimonies being interested witnesses cannot be believed at all. No doubt both the witnesses were near relatives inasmuch as the complainant was real brother and Jahangir Abbas (PW-6) was cousin of the deceased but the incident has taken place inside the house and no one except the inmates of the house were in a position to state who was responsible for committing the murder of deceased. In such like cases, when incident took place inside the house, testimonies of the inmates of the house have more credence as compared to anyother witness, as it would be unrealistic for a person other than the inmate of the house to state what happened inside the house. Here in the instant case, both the witnesses were present inside the house, therefore, they were quite natural witnesses, who can conveniently describe the incident in the manner as it happened as compared to any other independent witness. Moreso, there was no earthly reason for the eye witnesses to falsely implicate the appellant in substitution of the real culprits. Even otherwise, substitution of the real culprits with an innocent one, in particular, where the eye-witnesses have lost their close kith and kin, is a rare phenomenon. It is well established principle in criminal administration of justice that mere relationship of the eye-witnesses with the deceased is not sufficient to discard their evidence, if the same was otherwise found confidence inspiring and trustworthy. Reliance is placed on case reported as "Ghulam Murtaza Versus. The State" (2021 SCMR 149).
14. Next argument of the learned defence counsel was that the Investigating Officer has not collected blood-stained earth from the place of occurrence, which shows that the incident has not taken place at the site as alleged by the prosecution. The purpose of collection of blood stained earth from the place of occurrence is to detect the human blood from the crime scene and it was the duty of the Investigating Officer to collect the same. Herein the instant case, the Investigating Officer instead of collecting blood stained earth from the crime scene took into possession, a piece of Khais /cloth smeared with blood, with which the deceased covered himself at the time of sleeping vide recovery memo (Ex.PH). During cross-examination Muhammad Hayat, (PW- 7)/Investigating Officer explained that "It was not necessary for me to take the blood stained beddings into possession. Voluntarily said that for determination of existence of human blood, the blood stained khais was taken into possession." From the tenor of the statement of the Investigating Officer, it is abundantly clear that he was sure enough that while taking into possession blood stained khais, he has performed his part of duty and there was no need for him to collect anyother blood stained material from the spot. Moreso, the crime report has been lodged with much promptitude, which could not be possible if the crime scene was other than as alleged by the prosecution. Even otherwise, non-collection of blood stained earth from the crime scene at the most could be considered as an irregularity on the part of the Investigating Officer and no premium can be extended to the appellant on that basis. Reliance is placed on case reported as "Sheraz Asghar ..Vs.. The State" (1995 SCMR 1365), wherein it has been observed that "Besides any irregularity committed during the investigation of case would neither affect the trial of the case nor the judgment passed by the Courts."
15. Learned counsel for the appellant while referring to the reply of complainant (PW-5) in cross- examination that "Before 3/4 months before the alleged occurrence, accused Munir Hussain Shah shifted his family at Khanewal in a rented house for the purpose of education of his children" laid much emphasis that the appellant has left the village long ago and was not present at the place of occurrence on the fateful day but the Investigating Officer deliberately not collected Call Data Record (CDR) of the appellant to determine his location at the time of unfortunate incident.
Admission of the complainant that appellant shifted somewhere else prior to the occurrence solely is not sufficient to absolve his responsibility for committing the crime. It is a common pattern of the wrong doers to change their place of residence prior to committing a crime, in order to divert the concentration of the family of the victim with regard to actual culprit but here in the instant case both the acclaimed eye-witnesses had seen the appellant committing the murder of the deceased with their eyes and they while appearing in the dock in the court room raised accusing finger towards the appellant as such mere shifting of his family to some other place prior to the occurrence cannot be made a ground to give him clean chit. So far as non-collection of appellant's CDR for determination of his location is concerned, suffice it to say that CDR only shows that the SIM registered in the name of a particular person is being used in geographical jurisdiction of a specific Tower but in the absence of forensically evaluated voice record transcript/ end to end audio or video recording, it does not unveil who was carrying/using the SIM at the relevant time.
Reliance is place on case reported as "Mst. SAIMA NOREEN vs. The STATE and another" (PLD 2024 Lahore 522)" wherein Full Bench of this Court has observed as under:- "It is very much relevant to mention here that if question in a case is only regarding availability of any SIM in the territorial jurisdiction of any cellular tower at the time of receiving or making any particular phone call then perhaps CDR would provide some help but if the matter in issue is about presence of any human being either witness or accused on some particular place as a recipient or maker of the phone call as in this case is, then situation is quite different/otherwise.
10. Although any accused or witness can claim or admit possession and use of any SIM "Subscriber Identity Module' by him or anybody else at the time of occurrence or any other relevant time yet mere such claim or admission is not sufficient for relying on CDR "Call Data Record" of said SIM because CDR only shows use of SIM in territorial/geographical jurisdiction of "Cell Phone Tower" installed by telecom operator and does not disclose that who is actually/exactly carrying and using said SIM...";
16. Dr. Saif-ur-Rasool (PW-2) held autopsy on the dead body of deceased Husnain Abbas on 16.04.2017 and observed two injuries on right side of lower abdomen and right thigh at upper and outer part. According to his opinion, cause of death was due to injury No.1 which damaged major blood vessels (abdominal aorta, IVC and right iliac artery) caused hemorrhage and shock. Injuries No.1 & 2 were sufficient to cause death in ordinary course of nature. Probable duration between injuries and death was immediate whereas between death and postmortem examination about 6 to 8 hours.
Learned defence counsel argued that the post mortem was conducted after 6 to 8 hours of the expiry of the deceased but the Medical Officer has not observed rigor mortis, as such the time of death does not tally with the ocular account. We have given anxious consideration to this submission.
Rigor mortis is a fourth stage of death. It is one of the recognizable sign of death characterized by stiffening of the limbs of the corpse caused by chemical changes in the muscles. According to Medical Jurisprudence & Toxicology by Dr. Gupta & Agrawal normally rigor mortis starts to develop after three hours of the death and completes in 12-18 hours. Dr. S. Siddiq Husain in Chapter-V of his book "Forensic Medicine and Toxicology" observed that in moderate climate the rigor mortis completes in 8 to 12 hours. However, there is a consensus in Medical Jurisprudence that onset and duration of rigor mortis varies between individuals due to number of factors including:-
(i) Body condition: Rigor mortis sets in more quickly in people who are thin or emaciated. In people with low muscle mass, rigor mortis may not form at all or may be minimal.
(ii) Age: Rigor mortis occurs earlier in both early youth and old age.
(iii) Temperature: Warmer temperatures speed up the onset of rigor mortis. Cold temperatures slow down the process of rigor mortis.
(iv) Physical activity: If a person engages in strenuous exercise before death, rigor mortis may set in immediately.
(v) Illness. Illness is a physiological stress that can lead to a rapid onset of rigor mortis.
(vi) Body fat: Fat insulates the body, slowing the rate of rigor mortis.
According to Medical Jurisprudence and Toxicology by Dr. K.S. Narayan conditions of altering the onset and duration includes, age, nature of death, muscular state and atmospheric conditions and with regard to medical importance it was observed that "(1) It is a sign of death. (2) Its extent helps in estimating the time of death, which is not reliable.. (emphasis supplied)." Similarly, in Butterworths Medico-Legal Encyclopaedia by J.K. Mason and R.A. McCall-Smith, it was observed that "It is apparent that the basic condition of the body, its specific state at death and the environment in which it lies will greatly affect the appearance of these signs, which are discussed as individual entries. A corollary to the changes already described is that the chemistry of the body will be greatly altered by the processes occurring after death; the biochemical state discovered at autopsy may therefore bear very little relation to conditions in life. It follows that great care must be exercised in making a diagnosis of 'physiological' or 'biochemical' death on the basis of the interpretation of postmortem chemical estimations. Some of the post mortem alterations may be sufficiently specific to have a limited use in the time of death." In Taylor's Principles and Practice of Medical Jurisprudence it was explained in the following manner:- "Time of onset and disappearance of rigor mortis. In sudden natural deaths occurring in a temperate climate during average seasonal conditions rigor mortis usually commences within 2 to 4 h of death. It reaches a peak in about 12 h of death and starts to disappear after another 12 h, the cadaver becoming limp some 36h after death. These times are variable even under the conditions mentioned. There are, however, many extrinsic and intrinsic factors which may profoundly affect the onset and duration of rigor mortis. As some of these influencing factors are frequently associated with violent or unnatural deaths, the value of rigor mortis in assessing the post-mortem interval is limited and its use may be misleading..... .... Thus it is easy to understand that rigor mortis should come on slowly in healthy, muscular subjects who have died without convulsions, as, for instance, by decapitation, by sudden haemorrhage, by judicial or even other forms of hanging. In such cases the muscles have no more than the average amount of waste metabolites in them, and have their usual circulation at the moment of death, conditions favourable to the continuance of local life, of which rigor marks the end."
Further, according to Parikh's Textbook of Medical Jurisprudence and Toxicology, the onset of rigor is later and duration is longer in the strong muscular persons. Similarly, in cases of sudden death a late onset and long duration of rigor mortis is normal. Here in the present case, according to column No.16 & 17 of Inquest Report (Ex.PD), it was a dead-body of a healthy and strong person of 40/42 years. Moreover, at the time of death, the deceased was sleeping, as such, he was in a relax mode and these factors are sufficient to contribute in late onset of rigor mortis. Additionally, in case reported as "Muhammad Sharif alias Sharifi and another..Vs.. The State (1968 P Cr.LJ 213)" where the occurrence took place at digarvaila but the autopsy on the dead body of the deceased was conducted on the following day at 10.00 a.m. and the doctor has not observed development of rigor mortis but the Apex Court has observed as under:- " It was next contended that the post-mortem was held at 10 a.m. on 8th August 1963, when the rigor mortis had not started and as such the story that the occurrence took place at digarwala on 7th August, 1963, was false. No doubt, the doctor has said that generally in hot weather rigor mortis starts after six hours, but there are no hard and fast rules about it. It will suffice to say that rigor mortis may be delayed due to various other facts."
Learned counsel also emphasized that according to the opinion of the doctor duration between the injuries and death was "immediate", whereas, according to the acclaimed eye-witnesses, they shifted the deceased to the hospital where he breathed his last. To our mind this is also not helpful to the defence. Eye-witnesses were ordinary people, who cannot be presumed to determine the death of an injured person there and then. It is a matter of common observance that after sustaining of injuries, near and dear ones, in the first instance, attempted to shift the injured to the hospital with a ray of hope for his survival, therefore, shifting of the deceased to the hospital, even if actually he has expired is not unusual in our social set up. We are constrained to hold that medical evidence lends full support to the ocular account.
17. Appellant was arrested on 10.05.2017 and during investigation he led to the recovery of repeater 12-bore (P.6) which was sent to the office of Punjab Forensic Science Agency, Lahore and according to the report of said office (Ex.PL) the same was found to be in a mechanical operating condition but since no crime empty was secured from the spot in the absence whereof weapon of offence cannot be connected with the appellant, therefore, recovery remained inconsequential.
18. Motive as set out by the prosecution was that the appellant wanted to exchange valuable agricultural land of the deceased situated at road side with his land and upon refusal of the deceased, he committed his murder. Nothing in black and white has been placed on record to establish that the parties were in possession of their respective lands pursuant to any partition.
During cross-examination, the complainant (PW-5) deposed as under:- "It is incorrect that me and the accused are co-sharers in the agricultural land till today. PW volunteers that private partition/Wanda was made in the year 1980 and it was not made part of revenue record. No suit for partition was filed by Munir Shah accused or from my side. There was no quarrel between the parties with respect of partition of agricultural land and no criminal case was ever registered between two families except the case in hand."
Since neither there was any proper partition of the land which was made part of revenue record nor there was any quarrel between the parties qua the agricultural land as admitted by the complainant, therefore, motive as set out by the prosecution is nothing except words of mouth.
19. For what has been discussed above, we have entertained no manner of doubt in our mind that the prosecution has successfully proved the charge against the appellant for committing the murder of deceased through cogent, reliable and confidence inspiring evidence. Appellant was named in the promptly lodged FIR with a specific role of making repeated fire shots on right thigh and right side of abdomen. Parties were previously known to each other, as such question of miss- identification does not arise in any eventuality. Both the acclaimed eye-witnesses have well established their presence at the venue of occurrence at the relevant time. The ocular account is firm and consistent inter-se supported with the medical evidence. The complainant would have been the last person to falsely implicate the appellant in case of murder of his brother in substitution of real culprit. Even otherwise, substitution is always considered a rare phenomenon in cases where the complainant lost his/her close kith and kin. This overwhelming evidence constrained us to concur with the conclusion arrived at by the trial Court qua the conviction of the appellant under Section 302(b) PPC.
20. Now coming to the quantum of sentence. It is well settled by now that question of quantum of sentence, requires utmost caution and thoughtfulness on the part of the Court. In this regard, reliance is placed on case reported as Mir Muhammad alias Miro ..Vs.. The State (2009 SCMR 1188) wherein it has been laid 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 part 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."
Here in the instant case, we have taken note of some mitigating factors. Firstly, recovery of weapon of offence from the appellant remained inconsequential. Secondly, motive as set out by prosecution remained un-proved, which alone is sufficient for reduction of quantum of sentence.
Reliance is placed on case reported as " Kamran ..Vs.. The State through A.G. Khyber Pakhunknwa and others (2024 SCMR 1419)".
21. In view of what has been discussed above, the appeal of the appellant stands dismissed by maintaining his conviction in offence under Section 302(b) PPC, however his sentence of capital punishment is converted into one of imprisonment for life. The amount of compensation and sentence in lieu thereof as well as his conviction and sentence U/S 458 PPC shall remain intact. The appellant is given benefit of Section 382-B Cr.P.C.
22. Murder Reference No.300 of 2019 is answered in the NEGATIVE and the Death Sentence awarded to appellant Munir Hussain Shah is not confirmed.