SADIQ MAHMUD KHURRAM, J. - Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz and Muhammad Shafique son of Muhammad Nawaz (convicts) were tried by the learned Sessions Judge, Attock in case F.I.R. No. 85 of 2020 dated 25.05.2020 registered at Police Station Rango, District Attock in respect of offences under sections 302, 324, 337-F(iii) and 34 P.P.C. for committing the Qatl-i-Amd of Muhammad Idrees son of Abdul Shakoor (deceased). The learned trial court vide judgment dated 21.07.2022, convicted Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz and Muhammad Shafique son of Muhammad Nawaz (convict) and sentenced them as infra: Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz : - Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Muhammad Idrees son of Abdul Shakoor (deceased) and directed to pay Rs.300,000/- as compensation under section 544- A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was directed to undergo further six months of simple imprisonment.
The convict was ordered to be hanged by his neck till death.
Muhammad Shafique son of Muhammad Nawaz : - i) Rigorous imprisonment of five years under section 324 P.P.C. and directed to pay fine of Rs.
30,000/- and in default of payment of fine to undergo further three months of Simple Imprisonment. ii) To pay Daman of Rs.30,000/- under section 337-F(iii) P.P.C. to the injured namely Muhammad Arslan (PW-6)
The convict namely Muhammad Shafique son of Muhammad Nawaz was also extended the benefit available under Section 382- B of Code of Criminal Procedure, 1898 by the learned trial court.
2. Feeling aggrieved, Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz (convict) lodged Criminal appeal No.576 of 2022 assailing his conviction and sentence. Feeling aggrieved, Muhammad Shafique son of Muhammad Nawaz (convict) lodged Criminal appeal No.518 of 2022 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.49 of 2022 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz . We intend to dispose of the Criminal Appeal No. 576 of 2022, Criminal Appeal No. 518 of 2022 and Murder Reference No.49 of 2022 through this single judgment.
3. Precisely the necessary facts of the prosecution case, as narrated by Muhammad Rawaid (PW- 7) , the complainant of the case , are as under: - "On 25.05.2020, I along with my nephew Muhammad Arslan and my son Rameez Khan went to the house of my brother Muhammad Idrees (deceased) on the second day of Eid, at village Malho.
After having meeting with my brother Muhammad Idrees, 1 along with my son Rameez Khan and my nephew Muhammad Arslan came out from the house at about 09:45am. My brother Muhammad idrees also came out from the house in the street. Both accused Muhammad Rafique alias Rafi and Muhammad Shafique (present in Court both armed with their respective pistols also came there. Accused Muhammad Shafique raised Lalkara to his brother Muhammad Rafi while saying that they will teach us a lesson for previous enmity. Thereafter, accused Muhammad Rafique alias Rafi made successive fire shots from his pistol which landed on my brother Muhammad Idrees on his different body parts. My brother Muhammad Idrees on sustaining fire shots fell on the ground. Accused Muhammad Shafique also fired at my nephew Muhammad Arslan, by his pistol in order to commit his murder, which landed on his left foot. My nephew Arslan also fell on the ground. Thereafter, we raised hue and cry upon which both accused persons while brandishing their respective pistols, decamped from the spot. We shifted my brother Muhammad Idrees and nephew Muhammad Arslan to RHC Rango for medical treatment where I came to know about the death of my brother Muhammad Idrees.
Motive behind the occurrence is the previous enmity due to which both accused present in Court committed murder of my brother Muhammad Idrees and injured my nephew Muhammad Arslan with the intention to commit his murder.
Police reached at RHC Rango, where my statement under section 154 Cr. PC Exh. PK was recorded, which was read over to me and I signed the same in token of its correctness.
Thereafter, I along with my son Rameez came at the spot in the company of Atif Hussain SI. The said Sl inspected the spot on our pointation and prepared rough site plan. Thereafter, he during spot inspection collected five crime empties of pistol 30-bore P-14/1-5 from one place and one crime empty of pistol 30-bore P-15 from another place, made the same into independent two sealed parcels and secured vide recovery memo Exh. PL, attested by me and my son Muhammad Rameez. Atif Hussain SI during spot inspection also collected blood through cotton from the place of murder of my brother Muhammad Idrees, made the same into a sealed parcel and secured vide recovery memo Exh. PM attested by me and my son Rameez. I.O recorded our statements at the spot u/sec. 161 Cr. PC.
Thereafter, I along with police and my son Muhammad Rameez came at THQ Hospital Hazro, where I received dead body of my brother Muhammad Idrees in lieu of receipt Exh. PN, attested by me.
On 05.06.2020, I visited the P.S and handed over attested copy of FIR No.98/19 u/sec. 377/511 PPC Exh. PO (under objection by the learned defence counsel) to Tariq Mahmood SI/10, who secured the same into his possession vide recovery memo Exh. PP, attested by me. I.O recorded my statement u/sec. 161 Cr. PC.."
4. After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the accused were sent to face trial. The learned trial court framed the charge against the accused on 16.09.2020, to which the accused pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case, got statements of as many as nine witnesses recorded. The ocular account of the case was furnished by Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6). Muhammad Rashid HC (PW-1) stated that on 25.05.2020, Atif Hussain, SI, (PW-9) handed over to him three sealed parcels and lost worn clothes of the deceased and on 31.05.2020 he handed over the three sealed parcels to Tariq Mehmood, SI, (PW-8) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore and 07.06.2020 Tariq Mehmood, SI, (PW-8) handed over to him two sealed parcels said to contain pistols and on 12.06.2020, he handed over the said parcels to Tariq Mehmood, SI, (PW-8) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Kafeel (PW- 3) stated that on 25.05.2020 identified the dead body of the deceased at the time of its post mortem examination. Naseem Khan 14/C (PW-4) stated that on 25.05.2020 he escorted the dead body of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased and on 03.06.2020 the appellants were arrested by the Investigating Officer of the case and on 07.06.2020 the appellant namely Muhammad Rafi alias Muhammad Rafique got recovered the pistol (P-9) and the appellant namely Muhammad Shafiq got recovered the pistol (P-12). Tariq Mehmood, SI, (PW-8) investigated the case from 31.05.2020 till 12.06.2020, arrested the appellants on 03.06.2020 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Atif Hussain SI (PW-9) investigated the case from 25.05.2020 till 05.06.2020, and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.
6. The prosecution also got Dr. Sahibzada Aziz Noor (PW-2) examined, who on 25.05.2020 was posted as Medical Officer at the THQ hospital, Hazro and on the same day conducted the post mortem examination of the dead body of the deceased namely Muhammad Idrees son of Abdul Shakoor. Dr. Sahibzada Aziz Noor (PW-2) on conducting the post mortem examination of the dead body of the deceased namely Muhammad Idrees son of Abdul Shakoor observed as under: - "The following injuries were noted on the body. i) A firearm entry wound with inverted margins measuring approx 0.6 x 0.6 cm into going 02cm with probe with no resistance on back of the flank, no blackening tattooing charring present. ii) An exit wound with everted margins measuring approx 01 x 01cm on front of left flank. iii)A firearm entry wound measuring approx 1.5 x 1.5 cm going in 3cm inside the abdominal cavity with no resistance. There was no exit wound of injury No.3 and then X Ray taken revealed that the bullet was stuck in right iliac fossa and radiological evidence were handed (over to police, blackening and tattooing seen of the wound. iv) A firearm entry wound on the back of left upper thigh measuring approx 1.8 x 1.8 cm ) A firearm exit wound measuring about 2 x 2 cm on the lateral aspect of the left thigh. vi) A firearm injury wound measuring about 1 x 1 the posterior aspect of left lower thigh. vii) A firearm exit wound measuring about 02cmx02cm on the left lateral upper side of thigh viii) A firearm entry wound measuring about 1.5 x 1.5 cm on the medial upper aspect of right thigh. ix) A firearm exit wound measuring 1 x 1 cm on the medial upper right gluteal region.
OPINION In my opinion, cause of death is firearm wounds causing hypovolumic shock, resulting in cardiopulmonary arrest. All injuries from 01 to 09 are fatal in nature but injury No. 1, 2 and 3 can cause death in ordinary course of nature. All injuries were ante mortem in nature."
The prosecution also got Dr. Shaheer Ashfaq (PW-5) examined, who on 25.05.2020 was posted as Medical Officer at the THQ hospital, Hazro and on the same day medically examined Muhammad Arslan (PW-6). Dr. Shaheer Ashfaq (PW-5) on examining the injured namely Muhammad Arslan (PW-6) observed as under: - "i) 0.8 cm x 0.7cm firearm entry wound, 5cm distal to left ankle joint and 7cm proximal to left little toe, on anterior dorsal surface of left foot without any exit wound.
At the time of medical examination, the patient was referred for Radiological and surgical opinion and nature of injury was kept under observation at that time.
Exh. PH is the correct carbon copy of MLR of injured Muhammad Arslan whereas Exh. PH/1 is the pictorial diagram of injury which are in my hand writing and bears my signature.
Application submitted by the police for medical examination Exh. PJ was seen and signed by me.
The probable duration of injuries and medical examination was observed by me as half an hour to one hour.
On 02.09.2020, I received the report of Orthopedic Surgeon according to which X-Ray was showing foreign body (bullet) in left foot near calcaneum; No bony injury was seen; Bullet was removed under local anesthesia and bullet (foreign body) was handed over to police Constable bearing No.C/777 and patient was advised for anti biotic and analgesic and sent home."
7. On 28.02.2022, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Rameez Khan as being unnecessary. On 07.06.2022, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Khurram Shahzad constable and Ghaffar Khan as being unnecessary and closed the prosecution evidence after tendering in evidence the reports of Punjab Forensic Science Agency, Lahore (Exh.PU and Exh.PV).
8. After the closure of prosecution evidence, the learned trial court examined the appellants namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz and Muhammad Shafique son of Muhammad Nawaz under section 342 Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, they replied that they had been involved in the case falsely and were innocent. The appellants namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz and Muhammad Shafique son of Muhammad Nawaz opted not to get themselves examined under section 340(2) Cr. P.C and did not adduce any evidence in their defence.
9. At the conclusion of the trial, the learned Sessions Judge, Attock, convicted and sentenced the appellants as referred to above.
10. The contention of the learned counsel for the appellants was that the whole case was fabricated and false. The learned counsel for the appellants argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellants further contended that the statements of Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) were not worthy of any reliance. The learned counsel for the appellants also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellants finally submitted that the prosecution had totally failed to prove the case against the appellants beyond the shadow of doubt.
11. On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution had proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant namely Muhammad Rafi alias Muhammad Rafique. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) . The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recoveries from the appellants and the report of the Punjab Forensic Science Agency, Lahore (Exh. PU) also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of the appeals.
12. We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance have perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6). These prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) were related to each other and the deceased. Their relationship with the deceased is also on record. The deceased namely Muhammad Idrees was the brother of Muhammad Rawaid (PW-7) and the maternal uncle of Muhammad Arslan (PW-6). Both the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) explained their presence at the place of occurrence categorically. We have noted that both the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) in a very natural and forthright manner, narrated the occurrence and gave each and every feature of the same with consistency. The presence of the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) at the place of occurrence was quite probable and natural.
The occurrence in the present case took place just outside the house of the deceased namely Muhammad Idrees. Both the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) explained that on the day of occurrence, they had gone to the house of the deceased as it was the second day of the Eid and it was customary for them to visit the house of the deceased, the brother of prosecution witness namely Muhammad Rawaid (PW-7) and the maternal uncle of the prosecution witness namely Muhammad Arslan (PW-6). Both the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) were cross-examined at length with regard to their arrival at the place of occurrence and both the said prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) gave consistent and unswerving evidence in this regard. Muhammad Arslan (PW-6) during cross- examination explicated as under:- "My uncle Muhammad Rawaid and his son Rameez Khan came to my house, at about 08:30am and we all went to the house of my uncle Muhammad Idrees deceased, at about 09:00am, on the day of occurrence. House of my uncle Muhammad Idrees deceased and my house are situated in the same street. We remained present for about 45-minutes in the house of my uncle Muhammad Idrees deceased. On the day of occurrence, we did not visit the house of any other person.
The occurrence of present case was occurred just after about 1/2 minutes after our coming out from the house of Muhammad Idrees deceased. The occurrence of this case was taken place on the front of door of the house of Muhammad Idrees deceased" (emphasis supplied)
The prosecution witness namely Muhammad Rawaid (PW-7) explained with detail during cross- examination as under:- "My father was having five sons. Muhammad Idrees deceased was youngest son of my father. I and my son reached in the house of PW Arslan, at about 08:30am, on the day of occurrence. We remained present in the house of Arslan PW for about 30 minutes. We stayed in the house of deceased Muhammad Idrees and had taken tea and then we departed. We came out from the door of the house of Muhammad Idrees deceased. ..........
As per our custom, the younger used to visit to the elders to see them on the occasion of Eids During the course of the investigation, Atif Hussain, SI, (PW-9), the Investigating Officer of the case, also collected the blood with a swa b of cotton from the place of occurrence and took the same into possession through the recovery memo (Exh. PM). The report of the Punjab Forensic Science Agency, Lahore (Exh. PV) establishes that the said blood-stained swab of cotton taken from the place of occurrence was of human origin. The place of occurrence was further established by the rough site plan of the place of occurrence (Exh. PS) as prepared by Atif Hussain, SI, (PW-9) and the scaled site plan of the place of occurrence (Exh. PT) as prepared by Bashir Ahamd Awan, draftsman (since dead). The perusal of the said rough site plan of the place of occurrence (Exh. PS) as prepared by Atif Hussain, SI, (PW-9) and the scaled site plan of the place of occurrence (Exh. PT) as prepared by Bashir Ahamd Awan, draftsman (since dead) clearly shows that the house of the deceased namely Muhammad Idress is clearly marked in the same and has been shown on the northern side of the place of occurrence at a meagre distance from the same. The defence failed to prove the fact that the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) had no reason for their arrival at the place of occurrence rather during the course of the recording of evidence, the reason for the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) to visit the deceased was proved, therefore, their arrival at the place of occurrence and them witnessing the same cannot be looked at with any degree of doubt. During the cross-examination, the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) remained consistent with regard to the sequence of the occurrence and also explained their arrival at the place of occurrence, prior to the occurrence. The prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) were subjected to extensive cross-examination but the defence had failed to make any crack in their deposition and the veracity of their statements was established. Hence, in view of the above facts, the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) by no stretch of the imagination, can be declared as chance witnesses. We have also appreciated the fact that according to the column No.8 of the inquest report (Exh. PC), at the time of preparation of the same, the eyes and mouth of the deceased were also closed and had the deceased met his death in absence of the witnesses, then his eyes and mouth would not have been found closed. It is correct that it is a tradition in Pakistan that after the death, people immediately close the eyes and mouth of the deceased. Thus, the closed eyes and mouth of the deceased further proves the prosecution's version regarding the presence of the witnesses at the place and time of occurrence. Additionally, prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) being close relatives of the deceased, had no reason to falsely implicate the appellants in the commission of the offences or substitute the appellants, letting off the real culprits.
14. There is no such material available on record that would indicate the substitution of the appellants in the case with the real culprits. Substitution is a phenomenon of a rare manifestation because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of Irshad Ahmad and others v. The State and others (PLD 1996 SC 138). The appellants namely Muhammad Rafi alias Muhammad Rafique and Muhammad Shafique have not been able to establish any animosity of the prosecution witnesses for their false involvement in the case.
Prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6), in a forthright manner, held the appellant namely Muhammad Rafi alias Muhammad Rafique responsible for the murder of Muhammad Idrees (deceased) and held the appellant namely Muhammad Shafique responsible for causing the injury to the prosecution witness namely Muhammad Arslan (PW-6) . The mere relationship of the prosecution witnesses with the deceased and inter-se is not sufficient to discredit their testimony. In this regard, reference is made to the judgment in the case titled as Ijaz Ahmad v. The State (2009 SCMR 99) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- "In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relation-ship with the deceased, would not let go the real culprit or substitute an innocent person for him."
Reference is made to the judgment in the case titled as Ghulam Murtaza v. The State (2021 SCMR 149) wherein the August Supreme Court of Pakistan was pleased to observe as under:-- "Although the deceased-Mst. Saima Bibi is the daughter-in-law of the eye-witness Mst. Rukhsana (PW.7) but it has been settled by this Court that mere relationship of a witness with the victim would not discard her/his evidence if it is otherwise confidence inspiring and trustworthy."
Furthermore, in the incident in issue, the weapons had been used from very close proximity and, thus, it would not be difficult for the complainant party to identify the present appellants, who were well known to all of them. There is no evidence on record that the said prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) were motivated by any enmity to depose against the appellants. We have scrutinized the evidence of the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) and find that they proved themselves to be truthful witnesses and implicit reliance can be placed upon their statements.
15. Furthermore, the presence of the prosecution witness namely Muhammad Arslan (PW-6) at the place of occurrence cannot be doubted as he had the stamp of injuries on his body suffered at the hands of the appellant namely Muhammad Shafique. The prosecution got Dr. Shaheer Ashfaq (PW-5) examined, who on 25.05.2020 was posted as Medical Officer at the THQ hospital, Hazro and on the same day medically examined Muhammad Arslan (PW-6). Dr. Shaheer Ashfaq (PW-5) on examining the injured namely Muhammad Arslan (PW-6) observed a wound of the dimension of 0.8 cm x 0.7cm, present on the left ankle joint, which injury had been inflicted by use of a firearm weapon. Dr. Shaheer Ashfaq (PW-5) also opined that the injury observed by him on the person of Muhammad Arslan (PW-6) had been inflicted upon him within a period of thirty minutes to one hour of his examination, which examination had been conducted at 10:30 am. ,whereas the occurrence had taken place on the same day at about 09:45 am. Dr. Shaheer Ashfaq (PW-5) also observed that a bullet had been recovered from the left foot of Muhammad Arslan (PW-6). The appellant namely Muhammad Shafique has been saddled with the responsibility of causing the said injury to Muhammad Arslan (PW-6). The said observations and the opinion of Dr. Shaheer Ashfaq (PW-5) provide further corroboration of the ocular account as furnished by the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) making the same inherently trustworthy. The august Supreme Court of Pakistan in the case of Khadim Hussain vs. The State (PLD 2010 Supreme Court 669) has held as under:- "We have not been persuaded to agree with the prime contention of learned Advocate Supreme Court on behalf of appellant that the ocular version could not be substantiated by any corroboratory material being devoid of merit for the simple reasons that ocular version finds full support from the medical evidence as is indicative from the nature of firearm injuries received by Abdul Latif, deceased. Besides that Muhammad Shafique (P.W.8), Mst. Anwar Mai (P.W.11 and Muhammad Akram had also received firearm injuries as per medical evidence as furnished by Dr. Anwar-ul-Haq, P.W.17."
Reliance is also placed on the case of "KHADIJA SIDDIQUI and another Vs. SHAH HUSSAIN and another" (PLD 2019 Supreme Court 261) wherein the august Supreme Court of Pakistan observed that implicit reliance could be placed on the statement of an injured witness and noted with some concern that in the entire operative part of the impugned judgment passed by the High Court no discussion had taken place as to why the High Court had ignored or disbelieved the ocular account furnished by the minor and injured eye-witness namely Sofia Siddiqui of that case.
16. As mentioned above, the occurrence in question had admittedly taken place in broad daylight at 09:45 a.m. and the same, therefore, could not have gone un-witnessed nor could have the culprits escaped unobserved. As it was a broad daylight occurrence and because of the fact that the appellants were known to the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6), the question of the misidentification of the appellants namely Muhammad Rafi alias Muhammad Rafique and Muhammad Shafique does not arise. We have also appreciated the fact that the occurrence, in this case, took place at about 09:45 am on 25.05.2020 and was reported by the complainant namely Muhammad Rawaid (PW-7) to the police with promptitude. Muhammad Rawaid (PW-7) got recorded his oral statement (Exh.PK) to Atif Hussain, SI, (PW-9) at about 11:50 am inside the THQ hospital Hazro, on the same day. On the basis of the oral statement (Exh.PK) of the complainant namely Muhammad Rawaid (PW-7), the formal F.I.R.
(Exh.PK/1) was registered at 12:05 p.m. by Tariq Mehmood, SI, (PW-8) at the Police Station when the distance between the place of occurrence and the police station was as much as five kilometers.
Thus, it is apparent that the oral statement (Exh.PK) of the complainant namely Muhammad Rawaid (PW-7) was recorded with noteworthy swiftness, especially when Muhammad Rawaid (PW- 7), the complainant of the case, had suffered the trauma of the death his brother and a serious injuries to his nephew namely Muhammad Arslan (PW-6). Muhammad Rawaid (PW-7), not only named the appellants but also mentioned each and every minor as well as material fact of the incident in his oral statement (Exh.PK), which of course excludes the possibility of deliberation or consultation regarding the false implication of the appellants in the instant case. The salient features of the occurrence have been elaborately explained in the oral statement (Exh.PK). The promptitude in reporting the matter to the police also corroborates the case of the prosecution as against the appellants. This promptitude in reporting the matter to the police establishes the presence of the witnesses at the place of occurrence, at the time of occurrence and supports their narrative. In this regard, reference is made to the judgment in the case titled as "Muhammad Waris v. The State" (2008 SCMR 784) wherein the august Supreme Court of Pakistan was pleased to observe 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."
Reliance is also placed on the case of MUHAMMAD ARSHAD Versus The State (2020 SCMR 2025) wherein it has been held as under:- "There is no denial to this fact that the instant occurrence has taken place in broad daylight in which one person was done to death in a brutal manner whereas 02 women folk were given severe injuries. The crime report was lodged with promptitude, although the inter-se distance between the place of occurrence and the police station is 10-KM. The facts and figures narrated above, rules out any possibility of deliberation and consultation. Further that there is only single accused nominated in the crime report which shows the fairness of the prosecution which normally is against the prevalent custom in our society."
Reliance is also placed on the case of Noor Sultan and others Versus The State (2021 SCMR 176) wherein it has been held as under:- "The instant occurrence has taken place on 28.02.2020 at 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 any consultation or deliberation at the part of prosecution."
Reliance is also placed on the case of "Shaheen Ijaz Alias Babu Versus The State" (2021 SCMR 500) wherein it has been held as under:- "..........petitioner's nomination in a broad daylight 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."'
Reference is also made to the judgment in the case titled as "Muhammad Aslam v. The State"
(2012 SCMR 593) wherein the august Supreme Court of Pakistan was pleased to observe as under:- - "F.I.R. in the present case was recorded with a promptitude and in such circumstances prosecution has been able to prove the case against the appellant beyond any shadow of doubt."
During the course of the trial, it was proved that the oral statement (Exh.PK) of Muhammad Rawaid (PW-7), upon the basis of which the formal F.I.R (Exh.PK/1) was registered, was a genuine document and was made spontaneously, naturally and contained the true facts, devoid of any manipulation.
In this manner, it is proved that the prosecution case was free from any deferral in reporting the matter to the police, evidencing the truthfulness of the same.
17. The medical evidence produced by the prosecution in the case, proves that the deceased namely Muhammad Idrees had received the fatal injuries on the vital parts of his body and he succumbed to the said injuries caused by the appellant namely Muhammad Rafi alias Muhammad Rafique and that the prosecution witness namely Muhammad Arslan (PW-6) suffered a serious injury on his foot at the hands of the appellant namely Muhammad Shafique. The medical evidence fully supports the ocular account. According to Dr. Sahibzada Aziz Noor (PW-2), who conducted the post mortem examination of the dead body of the deceased namely Muhammad Idrees son of Abdul Shakoor, he observed a wound measuring approximately 0.6 cm x 0.6 cm on the back of the flank of the dead body and another wound measuring approximately 1.5 cm x 1.5 cm on the abdomen of the dead body with the bullet stuck in right iliac fossa and another wound on the back of the left upper thigh of the dead body measuring about 1.8 cm x 1.8 cm and another wound measuring about 1cm x 1cm present on the posterior aspect of left lower thigh of the dead body and another wound measuring about 1.5cm x 1.5 cm present on the medial upper aspect of the right thigh of the dead body, which all wounds were the entry of bullets wounds. Dr. Sahibzada Aziz Noor (PW-2) further opined that the said injuries observed by him on the dead body of the deceased had been caused by use of a firearm weapon. Dr. Sahibzada Aziz Noor (PW-2) additionally stated that the said injuries were sufficient to cause death. The appellant namely Muhammad Rafi alias Muhammad Rafique has been saddled with the responsibility of causing the said fatal injuries to the deceased namely Muhammad Idrees. In this manner, the ocular account is fully verified by the medical evidence available on record. Furthermore, the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) were also questioned with regard to the distance from which the appellant namely Muhammad Rafi alias Muhammad Rafique had fired at the deceased and the prosecution witnesses gave the distance as being about ten feet. Muhammad Arslan (PW-6) during cross-examination stated as under:- " At the time of making the fire by the hands of accused Rafi alias Rafique, he was at a distance of about 10-feet towards east from Muhammad Idrees deceased. At that time, accused Rafi alias Rafique was facing towards west. Accused Rafi alias Rafique has made the fires while in a standing position at one place. Shafique accused present in Court has fired upon me from a distance of about 19-feet, while standing towards eastern side from me."
Similarly, Muhammad Rawaid (PW-7) also stated during cross-examination as under:- "Accused Rafi present in Court has made firing on the deceased while standing at the distance of about 10-feet, towards south. Accused Shafique has made firing on PW Arslan while standing at a distance of about 19-feet, towards north. Rafi accused present in Court, firstly fired upon the deceased and then accused Shafique present in Court, fired on Arslan PW. Both the accused persons did not change their positions while making the fires. I witnessed the occurrence of firing while from a distance of about 8 feet from the deceased."
The said approximation of the distance from which the deceased was fired at by the appellant namely Muhammad Rafi alias Muhammad Rafique as stated by the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) was confirmed by Dr. Sahibzada Aziz Noor (PW-2), who conducted the post mortem examination of the dead body of the deceased namely Muhammad Idrees son of Abdul Shakoor. Dr. Sahibzada Aziz Noor (PW-2) on being cross- examined stated as under:- " . It is correct that except injury No.3, rests (sic) of injuries are without any blackening or tattooing." (emphasis supplied)
This consistency in the prosecution case, with regard to the distance from which the deceased was fired at, is reflective of the truthfulness of the prosecution witnesses. The role of the appellants were further got explored during the cross-examination. In view of the above discussion, it is ascertained and proved that the intent of the appellant namely Muhammad Rafi alias Muhammad Rafique was to cause death of Muhammad Idrees (deceased) and that he is guilty of Qatl-i-Amd of Muhammad Idrees (deceased) whereas the appellant namely Muhammad Shafique was guilty of attempting to commit the Qatl-i-Amd of Muhammad Arslan (PW-6) when he chose fire with the pistol carried by him at Muhammad Arslan (PW-6).
18. The learned counsel for the appellant has vehemently argued that for the fact that the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) did not mention the seats of the injuries inflicted upon the deceased Muhammad Idress by the appellant namely Muhammad Rafi alias Muhammad Rafique, therefore, the statements of the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) cannot be relied upon. We have come to the conclusion that the narration of the incident by the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) was very natural and truthful and despite there being temptation to improve their statements by specifying the seats of the injuries as suffered by the deceased, both the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) did not do so. The very fact that the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) did not specify the seats of the injuries received by the deceased proves that their statements are quite natural. Reliance in this regard is placed on the case of "Abdul Majeed vs. The State" (2008 SCMR 1228) wherein august Supreme Court of Pakistan has held as under:- "The complainant did not specify the shots fired upon by the appellant in the F.I.R. nor it was mentioned therein that the deceased received fires at such and such part of the body. It was stated in the F.I.R. that the appellant started firing at the deceased, the P. Ws. rushed to the spot and reaching there observed the wounds on the person of the deceased on different parts of the body. The narration by the complainant is very natural and truthful. He could very easily improve his statement by specifying the number of shots and seat of injuries but he did not do so."
Reliance in this regard is also placed on the case of "FAROOQ alias FAROOQAY and another vs. The State" (2003 SCMR 567) wherein august Supreme Court of Pakistan has held as under:- "According to the story of F.I:R., the accused while carrying fire-arms trespassed into the house and by breaking the door of Kotha fired at the deceased. It is noticeable that in the circumstances, it was not possible for the witnesses to point out that in what manner and sequence the deceased suffered injuries at the hands of the accused. It was also not possible for the witnesses to specify whether both the deceased sustained injuries as a result of firing of both the accused or one of them was responsible for causing their death. The accused were attributed collective role of firing at the deceased, therefore, the contention of the learned counsel that non-specification of injuries would be a mitigating circumstance in favour of the accused, was without substance."
19. The learned counsel for the appellant has also stressed that the Investigating Officer of the case did not take into possession the blood-sustained clothes of prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6), therefore, their presence at the place of occurrence cannot be believed. In this regard it is observed that not taking the blood-stained clothes of witnesses into possession can be an act of lethargy by the Investigating Officer of the case, however, can never be considered as proof of the absence of the prosecution witnesses.
Reliance in this regard is placed on the case of "Abdul Majeed vs. The State" (2008 SCMR 1228) wherein august Supreme Court of Pakistan has held as under:- "We are afraid that the statements of eye-witnesses cannot be discarded for the mere reason that blood-stained earth was not collected by the Investigating Officer. The explanation for not falling of blood on the ground has been brought on the record by the learned counsel of the appellant himself during cross-examination. We may refer to the relevant portion of the cross-examination available at page 55 of the paper book:--- "The deceased was bleeding but the blood had not as yet fallen on the ground that we picked up.
Deceased Fazal Karim had fallen on the ground. Deceased had fallen while facing towards sky. We reached near the deceased within a minute after he received the injury."
10. The complainant in reply to the question stated that his clothes were stained with blood while shifting the deceased. If his clothes were not taken in possession by the Investigating Officer, then it reflected on his working and lethargy. It could not cause any harm to the prosecution case."
20. Regarding the recovery of the pistol (P-9) from the appellant namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz and the recovery of the pistol (P-12) from the appellant namely Muhammad Shafique , the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the the recovery of the pistol (P-9) from the appellant namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz and the recovery of the pistol (P-12) from the appellant namely Muhammad Shafique which was in clear violation of section 103 Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The provisions of section 103 Code of Criminal Procedure, 1898, unfortunately, are honoured more in disuse than compliance. To appreciate it better, this section is being reproduced:- "103.--(1) Before making a search under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do."
Naseem Khan (PW-4) admitted during cross-examination as under:- "No person of the locality i.e. Lumbardar or councilor was associated in both the recovery proceedings."
The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898) at page 901 has held as under:- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard."
In view of the above-mentioned facts, the alleged recovery of the pistol (P-9) from the appellant namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz and the alleged recovery of the pistol (P-12) from the appellant namely Muhammad Shafique are not proved and the same cannot be used as a circumstance against the appellants.
21. The motive of the occurrence, as mentioned by the prosecution witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6) was some previous enmity. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. No minutiae of the motive have been provided which could have enabled us to determine as to what had happened immediately prior to the occurrence which triggered the same. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellant namely Muhammad Rafi alias Muhammad Rafique to have committed the Qatl-i-Amd of the deceased namely Muhammad Idrees. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. The august Supreme Court of Pakistan has held in the case of "Muhammad Asif v. The State" (2008 SCMR 1001) as under: "Coming to motive, no independent witness was produced in whose presence the altercation had taken place between Shafi and appellant at one side and Mazhar Hussain deceased on the other side."
So, this leads us to the conclusion that the prosecution remained unable to prove the motive as alleged.
22. We have disbelieved the evidence of prosecution qua the motive and the recovery of the pistol (P-9) from the appellant namely Muhammad Rafi alias Muhammad Rafique and the recovery of the pistol (P-12) from the appellant namely Muhammad Shafique in this case, however, even if the evidence of motive and of the recovery of the pistol (P-9) from the appellant namely Muhammad Rafi alias Muhammad Rafique and the recovery of the pistol (P-12) from the appellant namely Muhammad Shafique is excluded from consideration, even then there is sufficient incriminating evidence available on the record against the appellants namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz and Muhammad Shafique son of Muhammad Nawaz to prove the case of the prosecution against them. As discussed earlier, the prosecution case was fully proved through the evidence of the eye-witnesses namely Muhammad Rawaid (PW-7) and Muhammad Arslan (PW-6). The said eye-witnesses stood the test of lengthy cross- examination, but their evidence could not be stunned. Their evidence is quite natural, straightforward and confidence inspiring. The ocular account of the prosecution as given by the abovementioned eye-witnesses is fully supported by the medical evidence furnished by Dr. Sahibzada Aziz Noor (PW-2) and Dr. Shaheer Ashfaq (PW-5) and, therefore, we hold that the prosecution has proved its case against the appellants namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz and Muhammad Shafique son of Muhammad Nawaz beyond the shadow of any doubt.
23. Now coming to the quantum of sentence we have noted some mitigating circumstances in favour of the appellant namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz , firstly, the evidence of recovery of the Pistol (P-9) from the possession of the appellant namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz has been disbelieved by us for the reason mentioned in Para No.20 of this judgment, secondly the prosecution had alleged a specific motive in this case but failed to prove the same. It is a well- recognized principle by now that the question of quantum of the sentence requires utmost attention and thoughtfulness on the parts of the Courts. In this regard, we respectfully refer to the case of Mir Muhammad alias Miro v. The State (2009 SCMR 1188) wherein august Supreme Court has held as under:- "It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the parts of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."
The august Supreme Court of Pakistan has held in the case of "Ansar Ahmad Khan Barki v. The State and another" (1993 SCMR 1660), that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death. We are convinced that the appellant namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz , in the peculiar circumstance of this case, deserves consideration to the extent of his sentence one out of two provided under section 302(b) of P.P.C. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence and elicited such a colossal retort from the appellant, which had resulted into the death of the deceased namely Muhammad Idrees, therefore, in our view the death sentence awarded to the appellant namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz is quite castigatory. It has been held in number of judgments of the august Supreme Court of Pakistan that if a specific motive has been alleged by the prosecution, then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of the accused. While treating it a case of mitigation, we have fortified our view by a judgment of the august Supreme Court of Pakistan in the case of "Ahmad Nawaz and another v. The State" (2011 SCMR 593), wherein, at page 604, the Hon'ble apex Court of the country has been pleased to lay emphasis as under:- "10. The recent trend of the courts with regard to the awarding of penalty is evident from several precedents. In the case of Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111), it was held that "This is settled law that provisions of sections 306 to 308, P.P.C. attracts only in the cases of Qatl-i-amd liable to Qisas under section 302(A), P.P.C. and not in the cases in which sentence for Qatl-i-amd has been awarded as Tazir under section 302(b), P.P.C. The difference of punishment for Qatl-i-amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C. respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C. and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-i-amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCMR 4), Faqir Ullah v.
Khalil-uz-Zaman (1999 SCMR 2203), Muhammad Akram v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 338)".
The august Supreme Court of Pakistan has held in the case of "Mst. NAZIA ANWAR v. The State and others" (2018 SCMR 911), while considering the penalty for an act of commission of Qatl-i- amd, as under :- "In these circumstances it is quite obvious to me that the motive asserted by the prosecution had remained utterly unproved. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder."
We are also fortified in our view in this regard by the cases of "Nawab Ali v. The State" (2019 SCMR 2009), "Muhammad Akram alias Akrai v. The State" (2019 SCMR 610), "Iftikhar Mehmood and another v. Qaiser Iftikhar and others" (2011 SCMR 1165), "Muhammad Mumtaz v. The State and another" (2012 SCMR 267), "Muhammad Imran alias Asif v. The State" (2013 SCMR 782), Sabir Hussain alias Sabri v. The State" (2013 SCMR 1554),"Zeeshan Afzal alias Shani and another v. The State and another"(2013 SCMR 1602), "Naveed alias Needu and others v. The State and others"
(2014 SCMR 1464), "Muhammad Nadeem Waqas and another v. The State" (2014 SCMR 1658), "Muhammad Asif v. Muhammad Akhtar and others" (2016 SCMR 2035), "Qaddan and others v.
The State" (2017 SCMR 148) and "Ghulam Murtaza v. The State" (2021 SCMR 149).
24. In the light of the above discussion, the conviction of the appellant namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz , as awarded by the learned trial Court through the abovementioned judgment, is maintained but the sentence of death awarded to the appellant namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz under section 302(b) P.P.C. is altered to imprisonment for life. The compensation awarded by the learned trial Court under section 544-A of Cr.P.C. and the sentence in default thereof are maintained and upheld. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, is also extended to the appellant namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz. Consequently, with the above said modification in the sentence awarded to the appellant namely Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz under section 302
(b) PPC, the Criminal Appeal No.576 of 2022, is hereby, dismissed. The Criminal appeal No.518 of 2022, as filed by the appellant namely Muhammad Shafique son of Muhammad Nawaz is also dismissed with the modification in the quantum of sentence awarded to the appellant namely Muhammad Shafique son of Muhammad Nawaz under section 324 P.P.C. from Rigorous imprisonment of five years to that of already undergone by the appellant namely Muhammad Shafique son of Muhammad Nawaz , keeping in view the circumstances of the case, favouring the reduction in the period of rigorous imprisonment awarded to the appellant namely Muhammad Shafique son of Muhammad Nawaz. The punishment of Daman of Rs. 30,000/- under section 337- F(iii) P.P.C. to be paid by the appellant namely Muhammad Shafique son of Muhammad Nawaz to the injured namely Muhammad Arslan (PW-6) is however upheld and maintained. It is observed that if the appellant namely Muhammad Shafique son of Muhammad Nawaz fails to deposit the Daman of Rs. 30,000/- in the next six months, he shall be taken into custody and shall remain imprisoned till the payment of Daman amount by him and his imprisonment during the said period shall be treated as simple imprisonment. The sentence of the appellant namely Muhammad Shafique son of Muhammad Nawaz was suspended by this Court vide order dated 06.03.2023, and the appellant namely Muhammad Shafique son of Muhammad Nawaz is present before the Court on bail.
The surety of the appellant shall stand discharged from his liability and the bail bonds submitted by the appellant namely Muhammad Shafique son of Muhammad Nawaz are hereby cancelled.
25. Murder Reference No. 49 of 2022 is answered in Negative and the death sentence awarded to Muhammad Rafi alias Muhammad Rafique son of Muhammad Nawaz, is Not Confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.