ASJAD JAVAID GHURAL, J. Through the afore-titled criminal appeal under Section 410, Cr.P.C., appellants Zulfiqar Ali, Shujaat Ali and Jabahat Ali have challenged the vires of judgment dated 23.05.2019 rendered by the learned Addl. Sessions Judge, Lahore in private complaint titled "Muhammad Aslam v. Shujaat Ali" in respect of offence under sections 302, 201, 148 and 149, P.P.C. and Section 7 of Anti-Terrorism Act, 1997 relating to case FIR No.93 dated 26.05.2013, in respect of offence under Sections 302, 148 and 149, P.P.C. and 7-ATA, registered at Police Station, Cantt District Okara whereby they were convicted and sentenced as under: Under section 302(b) as Tazir read with Section 34, P.P.C.
Death each and to pay compensation of Rs. 200,000/- to the legal heirs of all the deceased Numan, Babar and Mst. Majeedan Bibi under Section 544-A, Cr.P.C. each. In case of default, to further undergo simple imprisonment for six months each.
2. Murder Reference No.161 of 2019 sent up by the trial Court for confirmation or otherwise of death sentence of the said appellants will also be decided through this common judgment.
3. The prosecution story unfolded in the crime report (Ex.PA/2) registered on the complaint (Ex PA/1) of complainant Muhammad Aslam son of Muhammad Din (PW-1) was that on 26.05.2013 at 12:30 p.m. he was coming back to home from the house of his uncle Ibrahim when he reached at the gate of Masjid where Ghulam Sarwar, Muhammad Din and Muhammad Aslam son of Muhammad Inayat met him and they all started talking there. In the meanwhile, Numan Sarwar after leaving home came towards Chowk and as the moment, he reached at the corner of Masjid, appellants Zulfiqar Ali, Shujaat Ali and Jabahat Ali all armed with rifles, lftikhar Ali, Sarfraz Ali, Sadaqat Ali armed with gun 12-bore, who were sitting outside their Baithak raised lalkara to teach him lesson for threatening them whereupon as Numan after turning saw behind, appellant Shujaat Ali with his rifle opened straight fire which hit at his left flank. Behind Numan, his mother Mst. Majeedan Bibi left home and as she reached near Numan, appellant Jabahat made fire with his rifle hitting in front of her breast, who fell down on the ground. Following Mst. Majeedan Bibi, Babar Shahzad came there, appellant Zulfiqar with his respective weapon made straight fire which hit at the back of his left flank through and through towards right side of abdomen, All the injured were succumbed to the injuries at the spot. On hue and cry, people from the vicinity attracted there. Accused Sarfraz, Sadaqat Ali, Iftikhar armed with their respective weapons climbed up on the roof and started indiscriminate firing upon the witnesses but the same were hit at the northern wall of Masjid. Due to that firing, the fear spread in the village and seeing the dead bodies as well as noise of firing, the people hide themselves in their houses.
Motive behind the occurrence was that two years prior to the occurrence, sister of Numan namely, Mst. Fozia Bibi was abducted by appellant Shujaat Ali, who contracted marriage with her inspite that she had already married. Accused had apprehension from Numan deceased that he may cause harm to his sister and due to that revenge they committed this occurrence.
4. Muhammad Ashraf Ranjha, Inspector Investigation (CW-1) prepared injury statements as well as inquest reports of deceased Muhammad Numan Sarwar, Babar Shahzad and Mst. Majeedan Bibi and escorted their dead bodies to the mortuary. He visited the place of occurrence on the same day, took all necessary steps of initial investigation and also recorded the statements of the witnesses under Section 161, Cr.P.C.
Muhammad Yasin, Inspector (CW-2), being member of Joint Investigation Team arrested appellants Zulfiqar, Shujaat and Jabahat on 28.06.2013, who during investigation led to the recovery of their respective weapons and empties of different bares. He forwarded incomplete challan to the extent of the appellants to ATC Court.
Being dissatisfied with the outcome Of the investigation declaring accused Iftikhar Ali, Sarfraz Ali and Sadaqat Ali being innocent, the complainant filed the private complaint (Ex.PA), wherein the trial Court, after inquiry under Section 202, Cr.P.C., initiated proceedings, of the trial.
5. Dr. Shahid Imran (PW-12) held autopsy on the dead body of deceased Muhammad Babar Shahzad on 27.05.2013 at 03:30 a.m. and observed two fire arm ante-mortem injuries on the back lower left chest and on the front middle of right chest with blackening and burning on both the injuries, which were found sufficient to cause death of the deceased. The probable duration between injuries and death was about half an hour, whereas between death and post mortem examination, it was 12 to 14 hours.
6. On the same day, he also held autopsy on the dead body of deceased Muhammad Numan at 03:00 a.m. and observed ante-mortem fire arm injury at his outer lower left chest being fatal to the life of the deceased. The probable duration between injury and death was about half an hour, whereas between death and post mortem examination, it was 12 to 14 hours. Aslam Masih (PW-13) furnished secondary evidence and verified the handwriting and signature of Dr. Maryam Robina regarding operation notes of deceased Mst. Majeedan Bibi (Ex.PU).
6. At the commencement of trial, the trial Court framed a charge against the appellants and their co-accused Iffikhar Ali and Sarfraz Ali to which they pleaded not guilty and claimed to be tried.
7. The prosecution examined 13-witnesses besides the reports of Punjab Forensic Science Agency Ex.PV and Ex.PX. Two official witnesses were examined as CW-1 and CW2. The appellants and aforementioned co-accused, in their statements recorded under Section 342, Cr.P.C., had denied and controverted all the allegations of facts leveled against them. They did not opt to make statement under Section 340(2), Cr.P.C., however, produced certain documents in their defence.
8. Learned trial Court, upon conclusion of the trial, proceed to acquit co-accused Iftikhar and Sarfraz whereas convicted and sentenced the appellants, as stated above vide impugned judgment dated 23.05.2019. Hence, this criminal appeal as well as connected Murder Reference.
9. Learned counsel for the appellants submits that the appellants are quite innocent and have falsely been entangled in the alleged occurrence; that this case is the best example of widening the net in order to involve whole members of the appellants family in a triple-murder case; that the eye-witnesses, being chance witnesses, could not establish their presence at the venue of occurrence at the relevant time; that both the witnesses were closely related, interested and highly inimical towards the appellants and, thus, their testimony cannot be relied upon; that the ocular account has already been disbelieved by the trial Court to the extent of acquitted co-accused; that the motive as well as mode and manner of the occurrence seems to be quite different as narrated by the prosecution; that one of the deceased namely, Babar Shahazad remained alive for half an hour, but he was not shifted to the hospital by any of the acclaimed eye-witnesses, which shows that they were not present there; that there was considerable delay in conducting postmortem examination of the deceased, which infers that the prosecution story was concocted one in order to manage the eye-witnesses as well as the prosecution story; that in fact appellant Shujaat Ali started firing at the outer-gate of the complainant party due to previous enmity; that appellant Zulfiqar was alleged to have carrying rifle but the recovery of a stain-gun was shown at his instance. At the end, prayer has been made for acquittal of the appellants.
10. Conversely, learned Deputy Prosecutor General appearing for the State assisted by learned counsels for the complainant has vehemently contended that it was a broad-day light occurrence, which took place in the street near Mosque and residence of the opponents; that the appellants were specifically attributed the role of making respective fire shots at the specific locale of all three deceased; that the eye-witnesses were quite natural, who remained consistent in their deposition before the trial Court in minute detail of the occurrence, which is being supported with the medical evidence; that previous enmity between the parties is admitted one; that recovery of respective weapons from the appellant provides further corroboration to the ocular account being supported with the medical evidence; that the prosecution has been succeeded in bring home guilt of the appellants to the hilt by producing cogent, convincing and confidence inspiring evidence; that there was no occasion for the eye-witnesses to substitute the appellants while letting of the real culprits and that without any rhyme or reason. In the end, a prayer has been made for dismissal of the appeal and confirmation of death sentence.
11. We have given anxious considerations to the arguments advanced by learned counsel for the appellants, learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant and have perused the record with their able assistance.
12. The mainstay of the prosecution case was on the testimony of ocular account, medical evidence, recovery of weapons of offence and motive part of the occurrence. Muhammad Aslam (PW-1), complainant/father of deceased Babar Shahzad put appearance in the dock in the court- room and reiterated contents of the crime report deposing that on the fateful day at 12:30 p.m., he was coming to his house from the house of his uncle Ibrahim and on reaching at the gate of the Mosque, Ghulam Sarwar, Muhammad Din (both given up being unnecessary) and Muhammad Aslam. son of Inayat (PW-2) met him and started chatting with him. In the meanwhile, Numan Sarwar, his nephew came there. Appellants Zulfiqar Ali, Shujaat Ali and Jabahat Ali, while armed with rifles, whereas co-accused Iftikhar Ali and Sarfraz (since acquitted) and Sadaqat Ali armed with 12-bore guns, emerged there abruptly and in pursuance of lalkra raised by co-accused Iftikhar, appellant Shujaat Ali made a fire shot, which hit on the left flank of Numan, who fell down.
On seeing her son, Mst. Majeedan Bibi came out of the house and reached near her son Numan whereupon appellant Jabahat Ali made fire shot with his rifle hitting at her chest and she also fell down. At the same moment Babar Shahzad came there whereupon co-accused Zulfiqar made fire shot with his rifle, which landed at his left flank through and through the belly, who also fell down.
The injured persons succumbed to the injuries at the spot. The remaining accused namely, Sarfraz Ali, Iftikhar and Sadaqat Ali, while armed with gun 12-bore went at the roof top of their house and started making fire shots upon them, which hit at the northern wall of the Mosque, however they luckily red. Muhammad Aslam son of Inayat (PW-2), brother of Mst. Majeedan Bibi and maternal uncle of Numan, entered in the dock in the Court room and supplemented the complainant on all material aspects of the occurrence. Both the witnesses were cross-examined at exhaustive length on different dates but they remained firm and consistent on all material particulars of the incident qua the date, time, place, mode and manner of the occurrence, the weapons of offence, the specific role played by them at the spot for causing fire arm injuries especially at the person of Numan Sarwar and Mst. Majeedan Bibi and the defence could not shatter their credibility.
13. Learned counsel for the appellants has much emphasis that both the witnesses of ocular account were chance witnesses and their presence at the spot was doubtful has no substance. We have observed that the complainant/(PW-1), being father of one of the deceased, was resident of the same village and his presence in front of the Mosque cannot be doubted. So far as Muhammad Aslam son of Inayat (PW-2) is concerned, though he was resident of some other village at the distance of eight miles yet his, presence with his brother-in-law namely, Muhammad Sarwar and visiting the house of his real sister, even without any specific cause was unusual in rural setup, the close kith and kin usually visit each other in their houses spend time and even stay overnight without any specific object in day time, travelling from one village to another quite normal in remote areas. Even otherwise, if for the sake of arguments, we exclude the evidence of this witness, deposition of the complainant is quite natural, straight forward and confidence inspiring which is sufficient to believe the ocular account of the prosecution.
Learned counsel for the appellant has questioned presence of the witnesses in view of duration between injuries and death of deceased Babar Shahzad with the contention that first reaction of the eye witnesses should be to shift him to the hospital in order to save his life. We have observed that said Babar Shahzad was a child of 12-13 years, who after sustaining severe injuries at his abdominal cavity, was about to die and even it was an estimated time as observed by the doctor being within half an hour. Meaning thereby, it may be a few minutes as the deceased, in injured condition, was lying without any movement and in that scenario, no, one can adjudge a person, who is going to die within minutes, has a few breath to last.
14. The most intriguing aspect of the case is that three of the appellants, have already been acquitted of the charge by the trial Court. It is true that they were declared innocent by the investigating officer and in the same manner, appellant Zulfiqar Ali claimed innocence from the day one that he, being father of Shujaat Ali and Jabaht Ali, was falsely implicate in this case in order to spread the net wide and entangle all male members of his family so that no one should be left to pursue this case. We are of the considered view that case of appellant Zulfiqar is quite distinguishable to that of the other two appellants.
Learned counsel for the appellants has focused that two of the co-accused, have already-been acquitted of the charge and the appellants deserve similar treatment. The perusal of record goes to evince that the acquitted accused, who were shown to be armed with gun 12-bore, were alleged to have climbed over the roof-top of their house and made firing upon the witnesses of ocular account but they luckily escaped, however, fire shots hit the northern wall of the Mosque. We have observed that case of the co-accused was quite distinguishable to the case of the appellants Shujaat Ali and Jahabat Ali for the reason that firstly they were declared innocent during investigation, being not present at the venue of occurrence on the fateful day and time. Secondly, no weapon of offence was recovered at their instance and thirdly no injury was assigned to them, either to the deceased or the injured PW except some signs of firing, as alleged by the prosecution but in fact none of the investigating officers noted/observed any such sign at the wall of the Mosque. On the other hand, the aforementioned appellants were specifically assigned the role of making fatal fire shots, resulting into death of three innocent persons. In this scenario, the acquittal of co-accused has no bearing upon conviction and sentence of the appellants in any eventuality.
15. Dr. Shahid Imran (PW-12) conducted autopsy on the dead body of deceased Muhammad Babar Shahzad on 27.05.2013 at 03:30 a.m. and observed an injury going deep with inverted margins on the back lower left chest along with an exit wound on the front middle of right chest. Blackening and burning were present on the wound. Both the injuries ruptured the chest wall, pleurae, left lung, peritoneum, diaphragm, stomach and liver. The cause of death was due to severe hemorrhage caused by both the injuries, which were sufficient to cause irreversible shock and death in ordinary course of nature, which were ante-mortem and caused by firearm weapon.
He also held autopsy on the dead body of deceased Muhammad Numan on the same day at 03:00 a.m. and observed a lacerated wound 1 c.m. x 1.5 c.m. going with inverted margins on the outer lower at left chest Blackening and burning were present around the margins (point of entry).
A single wound fracture tenth rib of left chest, pleurae, right lung, left lung, pericardium, blood vessels and stomach were ruptured. Chest cavity was full of blood. Cause of death was due to severe hemorrhage which caused irreversible shock due to rupture of heart (vital organ), caused by injury No. 1. Injuries were ante-mortem and caused by firearm weapon. Injury No. 1 was sufficient to cause death in ordinary course of nature. Probable duration between injury and death of both the deceased was about 1/2-hour, whereas between death and post mortem examination, it was 12 to 14 hours. The locale, number and nature of injuries are exactly in line with the ocular account.
Aslam Masih (PW-13) produced the record of postmortem examination of Mst. Majeedan Bibi conducted by Dr. Maryam Robina being conversant with her handwriting and signature. She had observed one firearm injury with inverted margin at the front of upper part of chest along with an exit wound at right back of her upper part. A pellet was recovered just beneath the skin in the wound.
Learned counsel for the appellant has vehemently argued that there was considerable delay in conducting post mortem examination on the dead body of the deceased, which show the real possibility that the time had been consumed in order to manage the prosecution story as well as the eye-witnesses. We have observed that the time consumption for postmortem examination of all the three dead bodies was hardly twelve hours whereas the distance between the place of occurrence and the Police Station was 33-kilometers in a remote area of District Okara, therefore, the attraction of the police officers at the spot, preliminary inquiry, escorting the dead bodies to the mortuary, recording the statement of witnesses, collection of incriminating articles from the spot, preparing inquest reports and investigation from the people gathered there, took sufficient time for submission of the police papers for the purpose of postmortem examination. We should not lost sight of the fact that there were three dead bodies of one family lying at the spot and in that scenario, lapse of a few hours was quite natural and it cannot be given any weightage adverse to the prosecution evidence. The medical evidence lends full support to the ocular version furnished by the prosecution.
16. Muhammad Yasin, Inspector (CW-2/I.O.), being member of the joint investigation team arrested the appellants on 28.06.2013. During investigation, Shujaat Ali led to the recovery of rifle 244-bore (P-26) vide recovery memo Ex.PJ, appellant Jabahat Ali got recovered gun 12-bore (P-27) and a Pump Action (P-28) vide recovery memo Ex.PK whereas appellant Zulfiqar Ali got recovered a stain-gun (P-29) vide recovery memo Ex.PL. These weapons were sent into the office of Punjab Forensic Science Agency on 24.07.2013 for comparison with crime empties i.e. five empties of 30- bore caliber, seven 44-bore caliber cartridges and six 12-G(bore) shot-shell and eight 44-missed rounds, which had already been deposited into the aforementioned office on 25.06.2013 i.e. three days prior to arrest of the accused persons. The report from the aforesaid office (Ex.PX) was received with the result that seven crime empties were found wedded with the rifle recovered at the instance of Shujaat Ali. 2/2 shot shells were identified as having been fired from both gun single barrel and pump action, two each, which were recovered at the instance of appellant Jabahat Ali whereas no empty of stain-gun was recovered from the crime scene and, thus, no comparison was got conducted qua the stain-gun recovered at the instance of appellant Zulfiqar Ali. Keeping in view the positive report of the Ballistic Expert, we have no legitimate exception to hold that the recovery of respective weapons of offence from appellant Shujaat Ali and Jabahat Ali provides full corroboration to the ocular account. So far as recovery of weapon of offence from appellant Zulfiqar Ali is concerned, we have observed that no crime empty of stain-gun was secured from the place of occurrence and, thus, the same remained inconsequential.
17. The motive as set up by the prosecution was that sister of deceased Numan Sarwar namely, Mst.
Fozia Bibi, being already married lady, had eloped with appellant Shujaat Ali and contracted marriage with him two years prior to this occurrence without the consent/blessing of her brothers deceased Numan to harm Mst. Fozia Bibi and under that threat, they committed this occurrence.
The motive part of the occurrence was proved by the prosecution through cogent and convincing piece of evidence rather it was admitted by the defence by putting certain questions during cross- examination upon the eye witnesses as well as in their statements recorded under Section 342, Cr.P.C. In response to various suggestions by the defence, the complainant replied that "case FIR No.27/12 dated 08.12.2012 under sections 452, 354, 34, P.P.C., was got registered by Ghulam Sarwar son of Muhammad Din PW of this case at Police Station Cant, Okara against Zulfiqar, Shujaat Ali and Sadaqat Ali accused of this case. It is correct that I and Fazal son of Abdul Ghani were the PWs of the said case as well. It is correct that during the investigation the said case was also found false and was recommended for cancellation----". He further replied that "It is correct that Fozia Bibi filed petition for harassment before the Justice of Peace against her father Ghulam Sarwar, brother Numan Sanvar and Arif Hussain etc. with the allegation that she was being illegally harassed by them and she being forced and threatened to get divorce from her husband Shujaat Ali---." Apart from this, pendency of criminal litigation between the parties is admitted one, which clearly shows that they were already at dagger-drawn and criminal intent of deceased Numan against each other. Though the motive is always considered as a doubled-edged weapon and used against both sides yet at the same time, it was the sole reason of this unfortunate incident.
18. Appellant Shujaat Ali took a stance in his statement recorded under Section 342, Cr.P.C. that on the day of occurrence, his real grandfather died and he along with his mother visited the village to attend the funeral ceremony of his maternal grandfather. Further stated that on seeing them, deceased Numan along with his companion Nouman son of Anayat, being desperate and hardened criminals, while armed with lethal weapons, launched murderous' assault upon him at the resident of his father whereupon he made firing from inside the house in his self-defence and all the deceased received fire arm injuries as a result of indiscriminate firing of their companion assailants. The statement of the appellant clearly shows that he has not denied the occurrence though with difference stance of self-defence but he failed to produce any witness in support his plea during investigation or before the trial Court. However, we have observed that Muhammad Yasin, Inspector (CW-2) explained the mode and manner of occurrence during cross-examination other than described by the prosecution as well as the aforesaid appellant. He admitted during cross-examination on behalf of the defence that "it is correct that during investigation conducted by me, one Zafar Iqbal son of Muhammad Shafi appeared before me, acclaimed himself to be an eyewitness of the occurrence and as such he recorded his statement, according to which, Numan deceased and his companions Numan son of Inayat, both armed with firearm weapons came in front of the house of Zulfiqar accused and they starred firing at his house and Mst. Majeedan Bibi mother of Numan deceased also arrived there----a person met him with the request not to disclose his name told him that he heard reports of firing and on reaching Chowk of the mosque and saw Numan deceased armed with pump action along with Numan son of Inayat empty handed and in his view Numan deceased fired with his pump action towards the gate of Zulfiqar accused and then he made another fire. After hearing report of firing, many persons assembled there. Mst. Majeedan Bibi mother of Numan deceased and her daughter reached there and they started abusing to the Lumberdar in a loud voice and then Nouman deceased handed over the gun to his companion resident of 52/3-R and thereafter Nauman deceased went to his house."--- ------ Shujaat Ali while sitting outside Baithak of Haveli started firing, which hit near the feet of Mst.
Majeedan Bibi and her daughter. The investigating officer was of the opinion that Numan Sarwar (deceased) himself invited trouble, went at door of the appellants, made firing, used abusive language, instigated. them to react, which resulted into the death of three persons at the hands of the appellants.
19. Learned counsel for the appellants while arguing the matter, has tried to distinguish the case of appellant Zulfiqar Ali to that of the other two appellants by referring specific portion of the prosecution evidence. Primarily, he was alleged to have been armed with rifle without specification of its bore but during investigation, the recovery of a stain- gun along with four magazines and a bag containing sixty bullets was shown at his instance from his deserted Dhari. Muhammad Ashraf Ranjha, Inspector/I.O. (CW-1), who visited the place of occurrence, secured seven crime empties of rifle 44-bore, five bullets of 30-bore and six empties of 12-bore but no crime empty of the stain-gun was secured from the spot. Appellant Zulfiqar Ali was specifically attributed the role of making fire shot at deceased Babar Shahzad aged about 11-12 years, which landed at his la flank through and through. Dr. Shahid Imran (PW-12) observed the size of injury at 1 cm x 1.5 cm deep going with inverted margins on the back lower left chest alone-with exit wound from middle of right chest Blackening/burning was present at the point of entry and exist. The Medical Officer admitted during cross-examination that the exit wound of the injury was at the higher level of the body of the deceased to that of the entry wound, which is on lower level, meaning thereby a track of bullet was down to upward, which in fact was not the case of prosecution. The track of the bullet as observed by the Medical Officer squarely contradicted to the ocular account especially, when appellant Zulfiqar, a man of normal height, was alleged to have made a fire shot at the child of about 11-12 years of age from the close range, the track of bullet should have been straight or at the most, from upper to downward.
20. In the given circumstances, the case of appellant Zulfiqar Ali is not at par with the case of the remaining two co-convicts being their father. The possibility of his false implication in this case in order to spread the net wide, cannot be ruled out for more than one reasons. Firstly, he was shown armed with rifle but during investigation, the recovery of stain-gun was shown at this instance, which remained inconsequential. Secondly, no crime ''empty of stain-gun was recovered and secured from the place of occurrence.
Thirdly, the fire shot attributed to him at the person of deceased Babar Shahzad was found lower to upwards as against the ocular version showing that he was standing in front of the said appellant in the street with close range. The ocular account is not in consonance with the medical evidence to that extent. In this view of the matter, we have found the prosecution evidence being doubtful to the extent of the said appellant the implication of the said appellant, being father of the principal accused, seems to be doubtful in order to spread the net wide. In criminal administration of justice, a single doubt has always been considered sufficient to tilt the scale of justice in favour of an accused. It is well-settled principle of law that the prosecution has to stand on its own legs to prove the charge against an accused and the benefit of doubt, even slightest, shall favour the accused.
Reliance is placed on case titled "Muhammad Akram v. The State" (2009 SCMR 230) wherein at page No.236, it has been held as under:- "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervaiz v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right"
It is equally settled principle of law that even a single doubt if found reasonable, would entitle the accused to acquittal and not combination of several doubts is foundational principle of justice.
Reliance in this regard is placed on case reported as Riaz Masai alias Mithoo v. The State (1995 SCMR 1730).
21. In these circumstances, we have reached at an irresistible conclusion that the prosecution has been able to prove the charge of homicidal death of three innocent persons against appellants Shujaat Ali and Jabahat Ali through cogent, reliable and confidence inspiring evidence. It was a broad day light occurrence, which took place in the street in front of Mosque of the village. The prosecution evidence to the extent of appellants Shujaat Ali and Jabahat Ali is quite consistent and straightforward qua the role played by them at the spot. The medical evidence lends full support to the ocular account. The recovery of respective weapon of offence from appellants Shujaat Ali and Jabahat Ali coupled with positive report of the Ballistic Expert, provided full corroboration to the ocular account. The motive as set up by the prosecution was not only established by the prosecution through cogent and convincing evidence but also admitted by the defence in so many words during cross-examination. We have no legitimate exception to differ with the opinion of the trial Court qua the conviction of both the said appellants.
22. So far as the quantum of sentence is concerned, we have observed that two of the co-accused with active role of participating the occurrence and making fire shots towards the witnesses from roof top of their house, have already been acquitted of the charge by disbelieving the prosecution evidence to that extent. Furthermore, one of the co-accused namely, Sadaqat Ali was found juvenile during trial and the complainant was directed to file separate private complaint against him but the same was not filed, meaning thereby, he was satisfied towards his non-involvement in this case. It is well settled and longstanding principle of law by now that the acquittal of co- accused has been considered to be one of the grounds towards the awarding lesser sentence.
Reference may be made to case titled "Abdul Nabi v. The State" (2017 SCMR 335):- "Apart from that a co-accused of the appellant namely Ghulam Yasin, attributed a role identical to that alleged against the appellant, has already been acquitted by the trial court and, thus, some doubts about the veracity of the prosecution's case have emerged which doubts about the veracity of the prosecution's case .having the same may well be considered towards exercising caution in the matter of the appellant's sentence of death."
It is also settled principle of law that when a case qualifies the awarding of both sentences of imprisonment for life and that of the death, the proper course for the Courts, as a matter of caution, is to give preference to the lesser sentence. Reference may be made to case titled "Ghulam Mohyud-Din alias Haji Babu and others v. The State" (2014 SCMR 1034) wherein it has been observed at page 1044 as:- "In any case, if a single doubt or ground is available, creating reasonable doubt in the mind of Court/Judge to award death penalty or life imprisonment, it would be sufficient circumstances to adopt alternative course by awarding life imprisonment instead of death sentence."
23. The epitome of above discussion is that the appeal in hand is hereby allowed to the extent of appellant Zulfiqar and he is acquitted of the charge by extending him the benefit of doubt. He shall be released forthwith from jail, if not required to be detained in connection with any other criminal case. The appeal in hand stands dismissed by maintaining the conviction of appellants Shujaat Ali and Jabahat Ali, however their sentence of death in an offence under Section 302(b), P.P.C. is modified to the imprisonment for life. The amount of compensation as well as the sentence in lieu thereof shall remain intact. The benefit of Section 382-B, Cr.P.C. is extended to the appellants.
24. Murder Reference No.189 of 2018 is answered in Negative and the Death Sentence awarded to convicts Shujaat Ali, Jabahat Ali and Zulfiqar Ali is not confirmed.