Abher Gul Khan, J. Irfan Ali (appellant) along with eight other co-accused, namely Arslan Ahmed, Noman Ahmed, Sultan Ahmed, Imtiaz Ahmed, Shahbaz Ahmed, Mehrab Ahmed, and Nasir Abbas alias Chani involved with case FIR No.78/2018 dated 03.05.2018 registered under Sections 302, 324, 337-F (iii), 109,148 & 149 PPC at Police Station Chutiana, was tried by learned Additional Sessions Judge (MCTC), Toba Tek Singh. Trial court vide judgment dated 30.09.2019 while acquitting the afore-said co-accused convicted and sentenced the appellant as under: - Under Section 302(b) PPC to suffer death sentence as ta'zir. He was also directed to pay compensation of Rs.5,00,000/- in terms of Section 544-A, Cr.P.C. to the legal heirs of Ishtiaq Hussain (deceased) which was ordered to be recovered as arrears of land revenue and in default of payment of compensation to undergo simple imprisonment for six months.
Against his conviction and sentence, Irfan Ali (appellant) preferred Criminal Appeal No.78420-J of 2019. Concurrently, the trial court forwarded a reference, which was numbered Murder Reference No.308 of 2019 under Section 374 Cr.P.C., to seek confirmation or rejection of the death sentence imposed on the convict, Irfan Ali. These two matters are being decided through this single judgment.
2. Epitomized facts of the case of the prosecution, in brief, as reported by Sarfraz Hussain (PW.11) in FIR (Exh.PC/1) are that on 03.05.2018 at about 5:00 p.m., he along with Sajjad Hussain, Muhammad Zahid, Ishtiaq Hussain, Ikraam-ul-Haq and Khalid Mahmood was going towards agricultural land owned by Ali Raza and Mst. Riaz Bibi, located at Square No.21, Killas No.7,8,14, for the purpose of irrigating the fields according to their sanctioned water schedule. Upon the arrival of the complainant and the afore-mentioned individuals at the water channel adjacent to the agricultural land owned by Riaz Randhawa and Sharif Lumbardar, Irfan Ali (appellant), co-accused Arslan, Noman, Sultan, and Nasir who had ambushed themselves with firearms in connivance with each other emerged on the scene. Accused Sultan Ali and Noman equipped with hoes raised Lalkara that Ishtiaq should be taught a lesson for supporting Ali Raza and Mst. Riaz Bibi and that they should not be let watering the land. Irfan Ali made two successive fire shots with a .30 bore pistol, out of which one fire passed while grazing the left arm above the elbow joint while the second fire shot hit at the left side of the neck slightly above the clavicle bone of the deceased due to which he fell on the ground. The complainant attended the deceased who succumbed to the injuries. In the meantime, accused Noman and Nasir Abbas raised Lalkara and said no one should be spared. Arslan accused fired a shot with his pistol .30 bore with the intent to commit murder, which hit the left side of belly of Muhammad Zahid PW, who fell in injured condition too. Thereafter, all the accused were decamped by raising Lalkara with their weapons. The above-said accused committed the crime in question at the abetment of the accused Imtiaz Ahmed, Sultan, Shahbaz Ahmed, and Mehrab. The motive behind the occurrence was that the accused intended to illegally occupy the land of one Mst. Riaz Bibi, regarding which criminal and civil litigation was pending adjudication, and Ishtiaq Hussain (deceased), being councilor of the area, used to support Mst.
Riaz Bibi. Both Ihtiaq Hussain (deceased) and Zahid Mahmood (injured) were shifted to DHQ Hospital T.T. Singh. However, the latter was referred to Allied Hospital, Faisalabad, due to his serious condition.
3. On 01.09.2021 Ghulam Mustafa SI (PW.18) after the receipt of information about the incident reached at DHQ Hospital Toba Tek Singh where complainant Sarfraz Hussain (PW.11) produced before him application (Exh.PC). Ghulam Mustafa SI incorporated police proceedings on the application (Exh.PC) and dispatched it to Police Station Chutiana through Wajahat Hussain 778/C to register a formal FIR. Subsequently, he inspected the dead body, prepared the injury statement (Exh.PI), an inquest report (Exh.PJ), and entrusted the corpse to Muhammad Tahir 276/C for getting the autopsy conducted from RHC Chak No.316/GB. He also prepared the injury statement of injured Zahid Mahmood (Exh.PE/1) for his medical examination. Thereafter, he, along with other police officials, visited the spot and collected two crime empties of a .30 bore pistol (P.5/1-2) vide memo Exh.PL. From the spot, he also secured blood-stained earth and two hoes (P.6 & P.7) through memos Exh.PM & Exh. PN. He further prepared the unscaled site plan (Exh.PU) of the place of occurrence. On 07.05.2018, after getting permission from the medical officer, he recorded the statement of Zahid Mehmood under Section 161 Cr.P.C. at Allied Hospital Faisalabad. On 14.05.2018, he visited Police Station Chutiana, where Irfan Ali (appellant) was arrested in another case, FIR No.84/2018, registered under Section 392 PPC, P.S. Chutiana. He formally arrested Irfan Ali in the present case. On 18.05.2018, Irfan Ali (appellant) made a disclosure and, in pursuance thereof, led to the recovery of a pistol (P.14), which was taken into possession vide memo Exh.PS. Subsequently, the investigation of the case was entrusted to Shabbir Ahmad SI (PW.16), who conducted an investigation to the extent of the remaining accused and, after complying with all the codal formalities, produced the file to the SHO concerned and prepared supplementary report in terms of Section 173 Cr.P.C.
4. The prosecution to prove its case against the appellant produced 18 witnesses, out of whom Dr. Asim Abbas Khan (PW.8), Dr. Faizan Ghani (PW.9), and Dr. Abdul Hamid (PW.10) furnished the medical evidence, Sarfraz Hussain (PW.11), Ikram-ul-Haq (PW.12), Ali Raza (PW.13) and Zahid Mahmood (injured/PW.14) entered an appearance in the witness box as witnesses of ocular account whereas, Shabbir Hussain SI (PW.16) and Ghulam Mustafa SI (PW.18) investigated this case. The remaining PWs were formal and acted according to the law to aid and support the investigation.
5. Dr. Faizan Ghani (PW.9) 03.05.2018 medically examined Zahid Mahmood and noted the following injuries: - 1-A. A firearm lacerated entry wound with colour of abrasion edges are inverted and blackening measuring 1 x 1 cm on left side of lower abdomen 4 cm above left anterior uperior iliac spine (hip bone) 6 cm from midline.
1-B. A firearm lacerated wound with everted margins measuring 1.5 x 1 cm on outer upper side of left buttock 8 cm below posterior superior iliac spine 14 cm away from midline.
On 03.05.2018 at about 9:30 p.m., Dr. Abdul Hamid (PW.10) conducted the autopsy of Ishtiaq Hussain and observed the following injuries: -
1. Firearm entrance wound 2 cm in diameter at the base of left side of neck injuring Carotid Vessels and passing through right chest cavity injuring upper lobe of right lung and fracturing outer end of right clavicle. A metallic body was recovered from right shoulder socket and handed over to police.
2. A firearm grazing wound 6 cm x 1.5 cm on the front of lower 1/3rd of left upper arm.
According to the doctor, the cause of death was hemorrhage shock due to injury No.1, which was the result of a firearm weapon. The doctor described the probable time between injury and death as immediate and between death and postmortem as four hours and thirteen minutes.
6. After the conclusion of prosecution evidence, the appellant was examined under Section 342 Cr.P.C., who, in response to question No.21, "Why this case against you and why the PWs have deposed against you," replied that the case is false, the PWs deposed falsely against him on the asking of Sarfraz Husain (complainant) whereas, in response to Question No.24 "do you want to say anything else" the accused replied which is exactly reproduced as under:- "I am innocent. In fact on the day of occurrence I was in possession of disputed land which I had already purchased from my co-accused Imtiaz and Umar Draz. The said land was previously in the possession of Mst. Riaz Bibi PW widow of Matloob Hussain s/o Sultan who had died earlier.
After the death of Matloob Hussain, his father Sultan had alienated his land in the name of his other two sons namely Imtiaz and Umar Draz but did not alienate the share of property in the name of widow of Matloob Hussain namely Riaz Bibi who has no issue from above said wedlock.
During the year 2017, I got the possession of said land and Mst. Riaz Bibi tried to dispossess me from that land many times and got false cases registered against me and my co-accused but she did not succeed. At last, she hired Ishtiaq Hussain who in connivance with Zahid Mahmood injured PW and some unknown persons made a plan to dispossess me forcibly and on the day of occurrence, I was busy working in my field then Ishtiaq deceased and Zahid Mahmood PW came there along with some unknown persons duly armed with firearm weapons for the said purpose.
I on seeing them approaching near hid myself in nearby citrus garden. Ishtiaq deceased and his companions encircled the said garden and started firing to kill me then I resorted to cross firing and managed to escape from that garden. I took motorcycle from one Irfan Khaliq who passed near the garden while riding on that motorcycle and fled away in order to save my life. Later on, said Irfan Khaliq was coerced by complainant party who got false case registered against me u/s 392 PPC at P.S. Chutiana with the allegation that I had snatched his motorcycle on pistol point. The complainant party managed to register this false case against me and my co- accused with the help of Shahbaz S.I/Staff Officer of DPO Toba Tek Singh who was near relative of Ikraam ul Haq and Anwar-ul-Haq and was fully supporting Mst. Riaz Bibi PW and others."
The appellant did not opt to appear as his own witness under Section 340(2) Cr.P.C. However, he produced certain documentary evidence in his defense. After the trial, the appellant was convicted and sentenced as afore-sated, hence, the instant criminal appeal and murder reference.
7. It is contended on behalf of the appellant that as per the prosecution case, the FIR has been chalked out while manipulating the record because as many as nine accused were implicated in the case, out of whom eight have been acquitted by the learned trial court and on the same set of evidence it would be completely unsafe to maintain the conviction of the appellant. The medical evidence is in complete contrast to the ocular account, and in fact, the complainant party aggressed to take possession of the disputed land from Irfan (appellant) at the spot. The important witness, Riaz Bibi, was not produced by the prosecution, and a safe inference can be drawn that had she appeared before the trial court, she would not have supported the prosecution case. Furthermore, the recovery of the weapon of offence was affected by the appellant contrary to the provisions of Section 103 Cr.P.C. and that in the afore-said circumstances, the conviction and sentence of the appellant are not sustainable, who is liable to be acquitted from the case.
8. On the other hand, the learned Additional Prosecutor General, well assisted by learned counsel for the complainant, argued the case on the score that the appellant was named in the promptly lodged FIR with a specific role of causing fatal injury to the deceased, the medical evidence is in line with the ocular account and keeping in view the injuries observed on the body of the deceased, coupled with the weapon of offence recovered from the appellant it provides sufficient corroboration to the prosecution case. The statements of all four eye-witnesses, including one injured, cannot be brushed aside as all of them were residents of the same village where the incident occurred and have successfully proved their presence at the spot. Since the prosecution has proved its case through the evidence of unimpeachable nature, the conviction and sentence awarded to the appellant need no interference from this Court.
9. Arguments heard. Record perused.
10. A careful perusal of the record reveals that the incident which formed the basis of the instant case took place on 03.05.2018 at about 5:00 p.m. that is in broad daylight, during which one Ishtiaq Hussain lost his life after the receipt of fire shots made by Irfan Ali (appellant). As per the record, Zahid Mahmood (PW.14) also endured two firearm injuries. The incident occurred in Chak No.402/GB, which was situated 23 kilometers away from Police Station Chutiana. The deceased and injured were shifted to the hospital, and Sarfraz Hussain (PW.11) reported the crime to the police through his written application (Exh.PC) presented before Ghulam Mustafa SI (PW.18) at 6:45 p.m. in DHQ Hospital Toba Tek Singh. The complaint (Ex.PC) was transmitted to the Police Station at 7:00 p.m. by Wajahat Hussain 778/C (PW.15), upon which the FIR (Exh.PC/1) was registered by Ghulam Dastagir Moharrar (PW.4) at 7:35 p.m. All the aforementioned witnesses appeared before the trial court and deposed in line with the prosecution case. In these circumstances, it can conclusively be held that the timing asserted by the prosecution qua the registration of FIR has not been challenged. It needs no scholarly discussion that timely registration of an FIR eliminates the potential for the manipulation of facts and indicates the likely presence of eye-witnesses at the crime scene.
11. According to the prosecution case, besides an injured eye-witness, namely Zahid Mehmood (PW.14), the incident was also witnessed by Sarfraz Hussain (PW.11), Ikram-ul-Haq (PW.12) and Ali Raza (PW.13). As far as the latter mentioned three eye-witnesses are concerned, no material whatsoever was brought on record by the defence to establish that they were not present at the crime scene or should have been in attendance at some other place in accordance with daily pursuit of their lives. As regards Zahid Mahmood (PW.14), he appeared before the trial court with the claim of having received firearm entry wound at left side of his lower abdomen. There are multiple factors providing strength to the acclaimed presence of eye-witness at the spot and receipt of injuries during incident is one of them. The presence of a witness, injured during the occurrence is always considered well beyond doubt, because it has stamp of injuries on his person. The view so expressed by us regarding an injured witness is fortified from the observation of the Supreme Court of Pakistan given in the case reported as Saleem Zada and others v.The State and others (2019 SCMR 1309) which is as under:- "We have gone through the statement of Bhari Zaman, the sole eye-witness and found him most confidence inspiring; he alone can sustain the charge; being injured, his presence cannot be doubted."
12. The argument of the learned counsel for the appellant that the learned trial court had not believed the injured witness, i.e., Zahid Mahmood (PW.14), and acquitted co-accused Arslan created doubt on the whole prosecution version and entitled the appellant to acquittal from the charge is misconceived. Where a witness to the incident has been injured, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the crime scene. Thus, the deposition of Zahid Mahmood (PW.14) should be relied upon unless there are strong grounds for rejecting his evidence based on major contradictions and discrepancies. We are also mindful of the fact that the injuries suffered by Zahid Mahmood (PW.14) were attributed to Arsalan, whom the trial court has acquitted. The trial court had overlooked the examination-in-chief of Zahid Mahmood (PW.14) wherein he deposed that when Irfan Ali, accused-appellant, fired two shots from his pistol at Haji Ishtiaq Hussain, deceased, which hit him on the left arm above the elbow and the second at his neck and he fell. He stepped forward to attend to Haji Ishtiaq Hussain, deceased, upon which Shani (since acquitted) and Sultan (since acquitted) raised lalkara that Zahid Mahmood be done to death. Zahid Mahmood (PW.14) had not deposed that he attended Haji Ishtiaq Hussain, deceased. Rather, Zahid Mahmood (PW.14) deposed that on raising the lalkara, Arsalan made a fire shot with his pistol upon him, hitting the left side of his belly. The trial court did not entirely discard the testimony of Zahid Mahmood (PW.14).
Zahid Mahmood (PW.14) did not give a graphic description of the entire incident. His presence on the spot cannot be doubted, as he was injured in the incident. However, these injuries can be considered sufficient to establish his presence on the spot, considering that Dr. Faizan Ghani (PW.9) stated categorically that there was no possibility of fabrication regarding both injuries. His deposition must be given due weightage. His deposition also stood fully corroborated by the evidence of Sarfraz Hussain (PW.11), Ikram-ul-Haq (PW.12), and Ali Raza (PW.13). The depositions so made cannot be brushed aside merely because there have been some trivial contradictions or omissions and benefit of the same was extended to co-accused Arsalan. The defence itself brought on the record mode and manner of the incident, which also gets support from a scaled site plan (Ex.PB). The relevant portion of the cross-examination of Zahid Mahmood (PW.14) is as below:- "When Irfan accused made fire shots he was standing at the distance of one pace from Ishtiaq deceased towards West. Irfan accused was at the distance of two paces from me towards West when he made fire shots. At the place of occurrence, there is outlet to water course and two water courses emerge from the main water course. I and Ishtiaq were present towards Eastern side of above said water courses."
In the wake of what has been mentioned above, we have meticulously scrutinized the depositions of all four eye-witnesses, who consistently held Irfan Ali (appellant) responsible resorting to reckless murderous aggression, which led to the death of Ishtiaq Hussain (deceased). Likewise, four eye-witnesses were deposed regarding the post-occurrence events like the time of reaching the hospital, the mode in which the deceased and injured were shifted from the spot, arrival, and decamping of the appellant from the crime scene, and how the incident occurred. While appearing in the dock, the eye-witnesses inescapably budged not a single inch from their allegation about the commission of the crime by the appellant. We have not come across even a slight doubt to draw any inference adverse to the credibility of all four eye-witnesses as far as the implication of Irfan Ali (appellant) for causing the death of Ishtiaq Hussain (deceased) is concerned.
13. Insofar as the medical evidence is concerned, we have observed that the autopsy over the corpse of Ishtiaq Hussain was conducted by Dr. Abdul Hamid (PW.10). According to him, the deceased Ishtiaq Hussain was found in receipt of two injuries, out of which injury No.1 was firearm entrance wound measuring 2 cm at the base of left side of neck and the other was a firearm grazing wound measuring 6 cm x 1.5 cm on the front of lower 1/3rd of left upper arm. The doctor also opined that the cause of death of Ishtiaq Hussain (deceased) was injury No.1, and injury No.2 was found simple in nature. In this way, the medical evidence is completely in line with the ocular account. Reliance is placed upon case titled as Abdul Hamid @ Hamidi v. State (PLJ 2015 SC 1084), wherein, the Supreme Court of Pakistan held as under:- "Medical evidence has supported ocular account qua nature, number and seat of injuries sufficient to award conviction."
14. We have further noted that Irfan Ali (appellant) was arrested in the case on 14.05.2018 himself got recovered .30 bore pistol (P.14) on 18.05.2018 in pursuance to disclosure made before Ghulam Mustafa SI (PW.18). On spot inspection two crime empties were taken into possession, made into sealed parcel by Investigating Officer (P.5/1-2) vide Ex.PL on 3.5.2018, and the same were deposited at Punjab Forensic Science Agency on 09.05.2018 by Muhammad Javed ASI, who entered appearance before the Court as PW.2 whereas the accused was arrested on 14.05.2018 and he got recovered pistol .30 bore vide Ex.PS on 17.05.2018 which was submitted to Punjab Forensic Science Agency by Muhammad Javed ASI (PW.2). As per report (Ex.PX) it was concluded that "the item pistol was examined and found to be in mechanically operating condition with the safety features functioning properly the item C1 and C2 cartridge cases were identified as having been fired from item "1P pistol" Thus, the positive report of PFSA is yet another factor which speaks volume about the guilt of appellant providing legal justification for treating the recovery of pistol (P.14) as sufficient incriminating material. Learned counsel for the appellant challenged the recovery of the pistol (P.14) on the sole ground that it was affected contrary to the provisions of Section 103 Cr.P.C. as no witness from the vicinity was associated during recovery proceedings by the police. Suffice it to say that the pistol was recovered upon the appellant's disclosure and thus was relevant under Article 40 of Qanun-e-Shahadat Order, 1984. In this respect, reliance can be placed upon the case reported as Sh. Muhammad Amjad v. The State (PLD 2003 Supreme Court 704) wherein the Supreme Court of Pakistan held as under:- "Further it is noted that as per Article 40, corresponding to Section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a Police Officer, such information whether it amounts to a confession or not as it relates distinctly to the fact whereby discovered, may be proved. The information supplied by the appellant, under Article 40 ibid, relating to incriminatory articles is admissible."
15. According to the prosecution case, the bone of contention behind the commission of crime was the fact that the accused intended to illegally get possession of the land owned by one Riaz Bibi widow of Matloob Hussain for which criminal as well as civil litigation was underway before the appropriate Courts and Ishtaiq Hussain (deceased) who was a councilor of the vicinity, was helping the afore-said widow-lady. To substantiate the motive, three eye-witnesses, namely Sarfraz Hussain (PW.11), Ikram-ul-Haq (PW.12) and Ali Raza (PW.13) testified during their examination-in-chief according to the version put forth by the complainant in FIR. During evidence, complainant Sarfraz Hussain (PW.11) also stated that civil litigation regarding the possession of agricultural land between Mst. Riaz Bibi, Ali Raza, and the accused were pending. He further took the stance during cross-examination that Mst. Riaz Bibi instituted a suit for perpetual injunction against the accused Sultan, etc, as well as Irfan accused, with the prayer that the defendants be restrained not to interfere with her possession over the land in dispute. He also asserted that another suit for a permanent injunction against accused Sultan Imtiaz etc. and Irfan accused were instituted by Riaz Bibi PW on 16.11.2017 with the prayer that the defendants be restrained not to interfere in her water turn (P.16/1-64). It is also a matter of record that during the investigation, Sarfraz Hussain (PW.11) also produced attested copies of civil suits, copies of petitions, copies of court orders, Khasra Girdwaries (P.16/1-64) to establish his version regarding motive. Ghulam Mustafa SI (PW.18) categorically supported the version of the complainant about the possession of Mst. Riaz Bibi over the disputed land. It is evident from record that a specific question regarding motive was also asked from Irfan Ali (appellant) during his examination under Section 342 Cr.P.C. but he replied it by simply stating that "it is incorrect". All the material mentioned hereinabove is crystal clear that the prosecution has also successfully proved the motive part of the incident.
16. It is cardinal principal of law that prosecution has to prove the guilt of accused by standing upon its own leg without any shadow of doubt, however Article 121 of Qanun-e-Shahadat Order 1984, is an exception to the general rule which runs in the following terms: "When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code (Act XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence, of such circumstances."
The accused was arrested on 14.05.2018 and immediately his first version was recorded by Investigating Officer wherein, he did not take plea of self defence. Similar is the case when accused filed post arrest bails which were dismissed upon merits however, during the course of trial the accused introduced the plea of self defence. The same set of questions were asked not only from eye-witnesses i.e. PW.11, PW.12, PW.13 and PW.14 but put to the Investigating Officer also during cross- examination upon which all the witnesses categorically denied the fact that accused was ploughing field on 03.05.2018 that is the land on which the murder took place. The said land was claimed to be in possession of the appellant as owner and when he saw Ishtiaq deceased and Zahid (PW) who along with 5-6 unknown reached there having firearm weapons to dispossess him from the disputed land, he hid himself nearby citrus garden. The deceased and complainant party made indiscriminate firing to kill him and he in his self defence also fired few shots and managed his escape good from that garden. In spite of claim of heavy indiscriminate firing by complainant party at the spot only two crime empties were recovered which ultimately matched with the pistol got recovered from the possession of the accused. Furthermore, the documents produced in defence in the shape of suit and order Ex.DB further speaks volume that in fact a civil suit was filed by Riaz Bibi against Irfan accused and others upon which the citrus garden was available and in said suit the counsel for accused entered appearance before the court and got recorded his statement that Irfan accused would not dispossess Riaz Bibi etc. from the land in dispute otherwise than in due course of law. In the wake of the very said-document the possession of accused in the year 2017 as claimed by him stood nullified because the statement was got recorded by his counsel on 07.02.2018. Another document (Ex.P16/1-64) that is the copy of Khasra Gardawari is crystal clear of the fact that the possession upon square No.21 Killa No.7 and 8 has been shown to be of Riaz Bibi from Kharif 2017 to Rabi 2018. In this way the plea of accused of self defence was not proved during the course of evidence introduced at a belated stage just to save his skin from conviction. Reliance is placed on Mian Muhammad Ajmal and others v. Abdul Aziz and others (PLJ 2004 SC 642), wherein it was held that: "Where accused pleads any of exception to Section 300 PPC like self defence he has to establish such plea either from prosecution evidence or by leading his own evidence."
17. The prosecution in this case has successfully brought home the guilt of the appellant who has failed to justify his presence at the spot being owner of land as alleged by him and his plea of self defence was also found to be false. The recovery of crime empties from the spot fully matched with the pistol got recovered from the possession of the accused. The cogent, convincing, reliable and confidence inspiring ocular account fully in line with medical evidence has left no scope for us to come to irresistible conclusion that accused took life of deceased on the basis of motive fully established from the prosecution evidence that in fact he was after the land of Riaz Bibi and intended to illegally occupy the same.
18. As far as the death sentence awarded to Irfan Ali (appellant) is concerned, firstly it is noted that the appellant was although implicated with the role of causing two firearm injuries on the body of deceased but in this backdrop the evidence of Dr. Abdul Hameed (PW.10) is very relevant and he observed only one firearm entry wound on the body of deceased and the second injury was declared to be simple in nature. It is well settled that the infliction of solitary firearm injury is also considered an acknowledged mitigating circumstance warranting conversion of death sentence into imprisonment for life. While holding so, reliance is placed upon the case reported as Rehmat Khan and another v. The State and others (2017 SCMR 2034) wherein the Supreme Court of Pakistan held as under:- "In appeal, the learned Division Bench of the Lahore High Court after taking into consideration the mitigating circumstances of the case i.e. single fire shot attributed to the petitioner and the alleged recovery of pistol being inconsequential converted the death sentence to life imprisonment."
Further, the case law titled as Muhammad Anwar v. State (2011 PCrLJ 289) is identical to the case of present appellant/accused wherein, the guideline has been laid down with the following observation:- "Single fire by an accused can be considered as an extenuating circumstance for awarding the lesser sentence."
Secondly, Arslan (co-accused) who was alleged by the prosecution to have inflicted a firearm injury to Zahid Mahmood injured (PW.14) has been acquitted by the learned trial court. This decision was subsequently affirmed by this Court in its judgment dated 10.11.2022. We are also not oblivious of the fact that even the slightest circumstance can be enough to convert death sentence of an accused into life imprisonment and no extraordinary circumstances are necessary to effect this change. While holding so, we are enlightened from the observation of Supreme Court of Pakistan expressed in the case reported as Dilawar Hussain v. The State (2013 SCMR 1582) which for advantage sake is being produced hereunder:- "It has neither been 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."
Further in the case reported as Ghulam Mohy-ud-Din alias Haji Babu and others v. The State (2014 SCMR 1034), the Supreme Court of Pakistan held as under:- "If the intent of legislature was to take away the discretion of the court, then it would have omitted from S.302 (b), P.P.C. the alternative sentence of life imprisonment".
In the same judgment, the Supreme Court further observed that:- "Sentence of death and life imprisonment were alternative to one another, however, awarding one or the other sentence essentially depended upon the facts and circumstances of each case".
19. For the reasons stated above, the death penalty imposed on Irfan Ali (appellant) under Sections 302 (b) PPC is hereby commuted to imprisonment for life with the benefit of Section 382-B Cr.P.C.
Nevertheless, the appellant is required to pay the compensation amount under the same terms fixed by the trial court. With the afore-mentioned modification in the sentence of the appellant, Criminal Appeal No.78420-J of 2019 is otherwise dismissed. Resultantly Murder Reference No.308 of 2019 is answered in the negative and death sentence awarded to Irfan Ali (convict) is NOT CONFIRMED.