SADIQ MAHMUD KHURRAM, J.- Muhammad Jehangir son of Malik Ahmad Hussain (convict) was tried by the learned Judge, Anti-Terrorism Court No.1, Rawalpindi Division, Rawalpindi in the case instituted upon the private complaint titled "Zabit Khan Vs. Muhammad Jehangir" (relating to F.I.R.
No. 103 of 2019 dated 23.07.2019 registered at Police Station Bahtar, District Attock) in respect of offences under sections 302 and 34 P.P.C. and under section 7 (a) of the Anti-Terrorism Act, 1997 for committing the Qatl-i-Amd of Amjad Ali Khan son of Jahandad (deceased), Yasir son of Moazzam Khan (deceased) and Muhammad Rafique (deceased). The learned trial court vide judgment dated 16.03.2021 convicted Muhammad Jehangir son of Malik Ahmad Hussain (convict) and sentenced him as infra: Muhammad Jehangir son of Malik Ahmad Hussain :- Death on three counts under section 302(b) P.P.C. as Tazir for committing Qatl-i-Amd of Amjad Ali Khan son of Jahandad (deceased), Yasir son of Moazzam Khan (deceased) and Muhammad Rafique (deceased) and directed to pay Rs. 5,00,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each of the three deceased and in case of failure to pay compensation, to further undergo simple imprisonment of six months.
The convict was ordered to be hanged by his neck till death.
The convict, was however acquitted of the charge under section 7 (a) of the Anti-Terrorism Act, 1997 by the learned trial court.
2. Feeling aggrieved, Muhammad Jehangir son of Malik Ahmad Hussain (convict) lodged the Criminal appeal No.289 of 2021, assailing his conviction and sentence. The learned trial court submitted Reference under section 374 Cr.P.C. read with section 30(2) of Anti-Terrorism Act, 1997, which has been numbered as Capital Sentence Reference No. 6/T of 2021, for confirmation or otherwise of the sentences of death awarded to Muhammad Jehangir son of Malik Ahmad Hussain (convict). We intend to dispose of the Criminal Appeal No.289 of 2021 and the Capital Sentence Reference No. 06/T of 2021 through this single judgment.
3. Precisely, the necessary facts of the prosecution case, as stated by Zabit Khan (PW-5), the complainant of the case, are as under:- "I am resident of Dhraik. Cultivator by profession. My father Jahan Dad moved an application for demarcation bearing Khasra No. 1428. On 23.07.2019, at about 11:00 am Naib Tehsildar Nazar, Ch. Muhammad Rafique Girdawar, Tahir Mehmood Patwari, Yasir Naib Qasid arrived at the place of occurrence for demarcation of above mentioned Khasra. From our side, I alongwith my brother Amjad Khan deceased, Liaqat s/o Muhammad Daood who was owner of adjacent land was also present there. Jahangir Khan accused present in the court alongwith his brother Noor Muhammad armed with weapons also reached at the spot. They tried to stop the demarcation process. I and my brother were bent upon to carry the proceedings of demarcation. Nazar Muhammad Naib Tehsildar and Ch. Rafique Girdawar asked them not to interfere in the process of demarcation but Jahangir and Noor Muhammad reluctant to do so. During this process Jahangir and Noor Muhammad started abusing us. The accused Jahangir Khan made two fires with 9 MM pistol upon my brother Amjad Khan which landed on right side of his neck and right side of his belly and Noor Muhammad (since died) also fired upon my brother Amjad Khan which hit on his right side of his ribs and navel and Amjad deceased fell down. Muhammad Rafique Girdawar ran towards south, Jahangir accused (present in the court) and Noor Muhammad deceased chased him and Jahangir accused fired twice on Rafique Girdawar which hit on his back and right under arm and the accused Noor Muhammad since died also fired twice upon Muhammad Rafique Girdawar which hit on left side of his hip and right side of his leg, he also fell down. Yasir Naib Qasid also ran towards west side to save his life but Noor Muhammad chased him and fired upon him which hit upon his chest. I alongwith Nazar Naib Tehsildar, Liaqat Mehmood and Tahir Patwari took shelter behind the Vehicle. Both Jahangir and Noor Muhammad ran towards graveyard. After few minutes we heard sound of fires from graveyard side. Later on it came to my knowledge that Noor Muhammad was killed. We took injured Amjad Khan, Ch. Muhammad Rafique Girdawar and Yasir to Bahtar hospital but in the way all the three injured succumbed to the injuries. The police after receiving the information reached at hospital and recorded the statement of Ch. Nazar Naib Tehsildar upon which the FIR No. 103/19 was registered in PS Bahtar. The deceased Muhammad Rafique Girdawar, Yasir Naib Qasid, Nazar Muhammad Tehsildar and Tahir Patwari came on official duty for demarcation. Due to this naked aggression and act of Jahangir and Noor Muhammad (since dead) the terror and fear spread in the area/vicinity. The police came at the spot and collected blood from the earth through cotton from the place of murder of Muhammad Rafique Girdawar, Naib Qasid Yasir and my brother Amjad vide recovery memo Exh.PA, Exh.PB & Exh.PC respectively also made three parcels and sealed with stamp AK. All the memos were attested by me and Azam. The police also took intopossession three empties of 9 MM P-1/1-3 from the place of murder of Amjad and sealed into parcel and took into possession through recovery memo Exh.PD.
The police also took into possession three empties of 9 MM P-2/1-3 from the place of murder of Muhammad Rafique girdawar and sealed into parcel and took into possession through recovery memo Exh.PE. The police also took into possession one empty of 9 MM P-3 from the place of murder of Yasir and sealed into parcel and took into possession through recovery memo Exh.PF. All the three parcels were stamped with AK, attested by me and Azam Khan.
On 18.10.2019, 1 alongwith Khawar Haroon s/o Muazam Khan r/o Langar went to the PS for inquiring about the progress of murder of my brother, Rafique Girdawar and Yasir Naib Qasid where the police/Muhammad Naseer Inspector interrogating Muhammad Jahangir accused, he made disclosure that he can get recovered the pistol 9MM from the deserted house situated at village Langar owned by Asad Khan s/o Mumtaz Khan where he has concealed the 9 MM pistol. On his disclosure, the police alongwith me and Khawar Haroon and the accused Muhammad Jahangir (present in the court) went to the village Langar. When the police reached near the house of one Arshad Khan, the accused asked the police to stop the vehicle where all the above mentioned persons alighted from the vehicle and went to the deserted house of Asad Khan through Pakdandi and the accused Muhammad Jahangir got recovered the pistol P-4 from north east corner after removing the small stones which was wrapped into plastic bag light green colour and after unloading 05 live cartridges P-5/1-5 were present in the magazine. The police took into possession the pistol 09 MM alongwith five rounds and magazine after preparing the parcel and stamped with MN in our presence vide recovery memo Exh.PG attested by me and Khawar Haroon. The 1.0 recorded my statement u/s 161 Cr.P.C. I filed the complaint due to the conduct and mala-fide of the 1.0 Asif and SHO Mazhar Shah who malafidly and with ulterior motive after receiving heavy bribe from the accused party, twisted the material facts to give undue advantage to the present accused, he tried to save the accused Muhammad Jahangir by putting all the burden of the murders upon Noor Muhammad (since died). The police also adopted illegal procedure by asking us to give oath upon Quran and Talaq which is alien to law. We also moved application to highups in this regard but in vain then I filed the complaint Exh.PH which bears my signature i.e Exh.PH/1."
4. The accused was summoned to face trial in the case instituted upon the private complaint titled "Zabit Khan Vs. Muhammad Jehangir" (relating to F.I.R. No. 103 of 2019 dated 23.07.2019 registered at Police Station Bahtar, District Attock) in respect of offences under sections 302 and 34 P.P.C. and under section 7 (a) of the Anti-Terrorism Act, 1997 for committing the Qatl-i-Amd of Amjad Ali Khan son of Jahandad (deceased), Yasir son of Moazzam Khan (deceased) and Muhammad Rafique (deceased). The learned trial court framed the charge against the accused on 01.09.2020, to which the accused pleaded not guilty and claimed trial.
5. The complainant of the case in order to prove his case got recorded statements of as many as seven witnesses. The ocular account of the case was furnished by Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7). Muhammad Saleem (PW-1), Kausar Hussain (PW-2) and Adil Shahzad (PW-3) stated that on 23.07.2019, they identified the dead bodies of the deceased at the time of post mortem examinations.
6. The learned trial court recorded statements of thirteen witnesses as Court witnesses. Asad Mahmood HC (CW-3) stated that on 18.10.2019, Muhammad Naseer, Inspector (CW-12) handed over to him a sealed parcel said to contain a pistol and on 22.10.2019, he handed over the said sealed parcel to the Investigating Officer of the case for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Ahmad Faheem Zafar, ASI (CW-4) stated that on 23.07.2019, he got recorded the formal F.I.R. (Exh.CW-4/A). Sajid Mahmood 564/C (CW-6) stated that on 23.07.2019, he escorted the dead bodies of the deceased to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examinations of the dead bodies of the deceased. Muhammad Irfan, SI (CW-2) investigated the case from 24.09.2019 till 03.10.2019, arrested the appellant on 02.10.2019 and narrated the facts of the investigation conducted by him in his statement recorded by the learned trial court. Muhammad Naseer, Inspector (CW-12) investigated the case from 04.10.2019 till 06.12.2019 and narrated the facts of the investigation conducted by him in his statement recorded by the learned trial court.
Muhammad Asif Khan, SI (CW-13) investigated the case from 23.07.2019 till 18.09.2019 and narrated the facts of the investigation conducted by him in his statement recorded by the learned trial court.
6. The learned trial court also recorded the statement of Dr. Fahad Abid (CW 7), who on 23.07.2019 was posted as Medical Officer at THQ hospital Fateh Jhang and on the same day conducted the post-mortem examination of the dead body of the deceased, namely Muhammad Rafique. Dr. Fahad Abid (CW-7) on examining the dead body of the deceased namely Muhammad Rafique, observed as under:- " Description of injuries: Injury No. 1. A firearm lacerated wound 01x0.8 cm on right Anterior axillary line, 12 cm from right nipple, margins everted, so it is exit wound.
Injury No. 2: A firearm lacerated wound on left lumber region 01x0.6 cm on back, it is 08 cm from vertebral line and 23 cm from left anterior superior iliac spine towards posteriorly, margins are inverted, so it is entry wound. Injury No. 3: A lacerated wound of measuring 01x0.6 cm on left inferior lateral quadrant of buttock which is 28 cm from left anterior superior iliac spine, wound is inverted so it is entry wound.
Injury No. 4: A lacerated wound of measuring 01x1.2 cm on left anterior aspect of thigh, 35 cm from left anterior superior iliac spine, margins are elevated, so it is exit wound.
Injury No. 5: Suspected clinical fracture of left femur.
Injury No. 6: A laceration of 08x03 cm on left leg laterally, which is 13 cm inferior from right knee patella lower border.
Opinion: In my opinion, deceased died due to severe hemorrhage shock caused by firearm injury No. 1 & 2.
Due to severe hemorrhage shock and leads to develop cardio pulmonary arrest. All injuries were anti mortal in nature while injuries No. 1 & 2 were sufficient to cause death in ordinary course of nature."
On 23.07.2019, Dr. Fahad Abid (CW-7) also conducted the post-mortem examination of the dead body of the deceased, namely Amjad Ali Khan son of Jahandad Khan. Dr. Fahad Abid (CW-7) on examining the dead body of the deceased namely Amjad Ali Khan son of Jahandad Khan, observed as under:- "Injury No. 1: A lacerated wound of 01x0.5 cm from suprasternal notched, 03 cm towards right, inferiorly on second rib, inverted margins, so entry wound.
Injury No. 2: A laceration of 1.2x0.8 cm on posterior axillary line, just at the angle of arm and body, margins are elevated, so it is exit wound.
Injury No. 3: 0.9x0.5 cm wound of laceration, 7.5 cm inferio-medial from right nipple, margins inverted, so it is entry wound.
Injury No. 4: A lacerated wound of 01x0.5 cm, margins inverted, entry wound, 08 cm from naval towards left superior lateral side.
Injury No. 5: A lacerated wound of 1.2x0.9 cm margins elevated, exit wound, 03 cm from mid vertebral line on right lateral.
Injury No. 6: A lacerated wound of 01x0.3 cm on right inguinal region, inverted margins, margins inverted, so entry wound, 17 cm from naval inferiorly on right side.
Injury No. 7: A lacerated wound of 1.5x 1.3 cm, margins elevated on superior-lateral gluteal region on right side, 7.5 cm from para-vertebral line. Injury No. 8: A lacerated wound of 1.5x0.7 cm, on left thigh, letero-posterior aspect, margins inverted so entry wound, it is 19 cm superior from left patella.
Injury No. 9: A lacerated wound of 2.3x0.9 cm margins Delevated, so exit wound, 03 cm superio lateral from left knee patella.
Opinion: In my opinion, deceased died due to hemorrhage shock caused by firearm injury No. 1, 2, 3, 4 & 5.
Hemorrhage leads to develop cardio pulmonary arrest. All injuries were anti mortal in nature while injuries No. 1, 2 & 3 were sufficient to cause death in ordinary course of nature."
On 23.07.2019 Dr. Fahad Abid (CW-7) also conducted the post-mortem examination of the dead body of the deceased, namely Yasir son of Moazzam Khan. Dr. Fahad Abid (CW-7) on examining the dead body of the deceased namely Yasir son of Moazzam Khan, observed as under:- "Injury No. 1: A lacerated wound of 01x0.5 cm on left side of chest, 07 cm from sterna notch inferiorly, margins inverted, so it is entry wound.
Injury No. 2: A laceration of 1.5x02 cm on left posterior axillary line, 18 cm from left acromial process inferiorly, margins elevated, so it is exit wound.
Opinion: In my opinion, deceased died due to severe hemorrhage shock caused by firearm injury No. 1 & 2.
Severe hemorrhage shock leads to damage of cardio pulmonary circulation and leads to cardio pulmonary arrest. All injuries were anti mortal in nature while injuries No. 1 & 2 were sufficient to cause death in ordinary course of nature."
8. On 05.09.2020, the learned counsel for the complainant gave up the witnesses namely Khawar Haroon and Muhammad Dawood as being unnecessary. On 23.12.2020, the learned counsel for the complainant gave up the witnesses namely Muhammad Tufail, Waqas Ali and Ijaz Hussain as being unnecessary. On 15.02.2021, the learned counsel for the complainant gave up the witnesses namely Liaquat Ali and Muhammad Azam as being unnecessary, tendered in evidence the reports of the Punjab Forensic Science Agency, Lahore (Exh.PN/1-2, Exh.PO/1-2, Exh.PP, Exh.PQ, Exh.PR/1-2 and Exh.PS), and closed the prosecution evidence.
9. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Jehangir son of Malik Ahmad Hussain 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, he replied that he had been involved in the case falsely and was innocent. The appellant namely Muhammad Jehangir son of Malik Ahmad Hussain opted not to get himself examined under section 340(2)
Cr.P.C. and did not adduce any evidence in his defence.
10. On the conclusion of the trial, the learned Judge, Anti Terrorism Court No.1, Rawalpindi Division, Rawalpindi convicted and sentenced the appellant as referred to above.
11. The primary contention of the learned counsel for the appellant was that the whole case was fabricated and false. The learned counsel for the appellant 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 appellant further contended that the statements of the eye witnesses namely Zabit Khan (PW-5), Tahir Mahmood (PW-6) and Nazar Muhammad (PW7) were not worthy of any reliance. The learned counsel for the appellant also argued that nothing incriminating was recovered from the appellant during the investigation of the case. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the appellant beyond the shadow of doubt.
12. On the other hand, the learned Deputy Prosecutor General and the learned counsel for the complainant contended that the prosecution had proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General and the learned counsel for the complainant further argued that the deceased were murdered by the appellant and reliance could be placed on the statements of the prosecution witnesses namely Zabit Khan (PW- 5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) as they had proved to be truthfulness witnesses. The learned Deputy Prosecutor General and the learned counsel for the complainant contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. The learned Deputy Prosecutor General and the learned counsel for the complainant prayed for the rejection of the appeal as lodged by the appellant namely Muhammad Jehangir son of Malik Ahmad Hussain.
13. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General, the learned counsel for the complainant and with their assistance carefully perused the record and evidence recorded during the trial.
14. The whole prosecution case revolves around the statements of the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7). The prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) explained their presence at the place of occurrence, at the time of occurrence with consistency. We have also noted that the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7), in a very natural and forthright manner, narrated the occurrence and gave each and every detail of the same. It is also a fact that on the day of occurrence, the prosecution witness namely Nazar Muhammad (PW-7) was performing his duties as a Naib Tehsildar whereas the prosecution witness namely Tahir Mahmood (PW-6) was performing his duties as a Patwari and Muhammad Rafique (deceased) was performing his duties as a Girdawar, whereas Yasir (deceased) was performing his duties as a Naib Qasid and it was in the performance of their duties that the prosecution witnesses namely Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) and Muhammad Rafique Girdawar (deceased) and Yasir, Naib Qasid (deceased) were present at the place of occurrence, at the time of occurrence. In this state of things when the prosecution witnesses namely Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) provably had no enmity with the appellant to involve him in the occurrence without any reason, then the prosecution witnesses namely Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) can be considered as independent witnesses. Furthermore, during the course of cross- examination of the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7), the sequence of the arrival of the prosecution witnesses at the place of occurrence was explored in great detail and all the facts necessary were brought on record to prove that the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) arrived at the place of occurrence and also witnessed the same. It was explained by the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) that an application had been submitted by Jahandad, father of Zabit Khan (PW-5), seeking the demarcation of Khasra No. 1428 and it was for the said purpose that the prosecution witness namely Nazar Muhammad (PW-7) Naib Tehsildar ,the prosecution witness namely Tahir Mahmood (PW-6) Patwari and Muhammad Rafique Girdawar (deceased) and Yasir, Naib Qasid (deceased) had arrived at the place of occurrence and were present there when the appellant and Noor Muhammad (since dead) launched an attack on the said persons gathered at the place of occurrence and committed the Qatl-i-Amd of Amjad Ali Khan (deceased), Muhammad Rafique Girdawar (deceased) and Yasir, Naib Qasid (deceased). During the course of cross-examination the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) were repeatedly questioned with regard to their departure to the place of occurrence and their arrival at the place of occurrence and the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) remained consistent with regard to the relevant facts. With regard to the arrival of prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) at the place of occurrence and their reason for presence at the place of occurrence , Zabit Khan (PW-5) during cross-examination, explained as under:- "Naib Tehsildar, Rafique Girdawar and other revenue officers alongwith Naib Qasid arrived at the place of occurrence for the purpose of demarcation at 11:00 am. demarcation proceedings, the quarrel took place. When the revenue staff arrived, we were present in our own land. We were standing in our land and when the revenue staff arrived there, we went towards them. They met us on the main passage/road. Without delay we all went to our land for demarcation. Within five minutes of the reaching of revenue staff, quarrel started. "
Similarly, the prosecution witness namely Tahir Mahmood (PW-6), explained during cross- examination as under:- "I received summon 02/03 days prior to present occurrence regarding demarcation of the land.
Jahandad the applicant of demarcation was known to me. During the days of occurrence he did not visit the Patwar Circle. We left Fateh Jang for the purpose of demarcation at about 10:00 am accompanying Naib Tehsildar, Girdawar and Yasir Naib Qasid. It was Girdawar who was driving the vehicle. We reached at the place of occurrence at about 10:45/11:00 am. When we reached at the spot, 09 persons were present there. We all soon our reaching went to the land of demarcation. .............
Khasra No. 1428 is 48 kanals 02 marlas owned by Jahandad s/o Feroz and Karam Khan s/o Muhammad Ayoub" (emphasis supplied)
The prosecution witness namely Nazar Muhammad (PW-7) also explained during cross- examination, as under:- "It was Rafique Girdawar who took for demarcation to the land on his own vehicle. I, Rafique deceased, Yasir deceased and Tahif Patwari went to the land for demarcation together. We reached on that land at 10.30/10.45 A.M. None was present prior to our reaching at that place. 05/07 minutes of our reaching, Jahangir arrived at the spot, thereafter, on his telephone his brother Noor Muhammad arrived there. 07/08 other personals were also arrived at the spot at that time. Prior to attendance of the parties, the accused parties objected for demarcation.
A house of Jahandad was also available in that land. The said house was almost available in the middle of that land bearing Khasra No. 1428. "
Asif Khan, SI (CW-13), the Investigating Officer of the case, during his visit to the place of occurrence also took into possession the documents under the use of the witnesses and the deceased, further proving the reason for the presence of the witnesses and the deceased at the place of occurrence.
Asif Khan, SI (CW-13), the Investigating Officer of the case, got recorded in his statement before the learned trial court as under:- "I also took into possession from spot field book P.6, Latha P.7, a cloth of white colour P.8, file of documents P.10/1-2 and took the same into possession vide recovery memo Exh.PK, attested by the PWs."
This part of the statement of Asif Khan, SI (CW-13), the Investigating Officer of the case, was not even challenged. We have scrutinized the statements of the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) and find that not even a single inconsistency could be brought up in their statements during cross-examination despite the fact that the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) were cross-examined at length. Additionally, Asif Khan, SI (CW-13), the Investigating Officer of the case, visited the place of occurrence and took into possession the blood stained earth from the places where the three deceased had received the injuries through the recovery memos (Exh. PA., Exh.PB and Exh.PC). The report of the Punjab Forensic Science Agency, Lahore (Exh.PR) establishes that the blood contained in earth taken from the place of occurrence through the recovery memos (Exh. PA., Exh.PB and Exh.PC) was of human origin.
The place of occurrence was further established by the rough site plan of the place of occurrence (Exh. CW-13/F/1-2) as prepared by Asif Khan, SI (CW-13), the Investigating Officer of the case, and the scaled site plan of the place of occurrence (Exh. P.J.) as prepared by Tahir Mahmood, Patwari (PW-6). A perusal of both the site plans of the place of occurrence (Exh. CW-13/F/1-2 and Exh. P.J.) reveals that the occurrence took place at the same place which was identified being the place of occurrence by prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7). In both the site plans of the place of occurrence (Exh. CW-13/F/1-2 and Exh. P.J.), the presence of the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) has been marked. We have studied the evidence of the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) and find that they proved themselves to be truthful witnesses and implicit reliance can be placed upon their statements. There is no evidence on record that the said prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) were motivated by any enmity to depose against the appellant. No reason existed, prior to the occurrence, which could have interested prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) to get the appellant involved in this occurrence falsely and let-off the real accused. Hence, in view of the above facts, prosecution witnesses namely Zabit Khan (PW- 5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) by no stretch of the imagination, can be declared as chance witnesses or be declared not to be present at the time of occurrence as they explained their arrival at the place of occurrence in the most natural and consistent manner. The presence of the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) at the place of occurrence, at the time of occurrence, stands proved beyond a shadow of doubt. Additionally, prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) had no reason to falsely implicate the appellant in the commission of the offence or substituting the appellant namely Muhammad Jehangir and letting off the real culprit. There is no such material available on record that would indicate the substitution of the appellant in the case with the real culprit. Substitution is a phenomenon of a rare manifestation because even the interested witnesses would not normally allow the real culprit for the murder of their relations let off by involving an innocent person. Substitution is a phenomenon of a rare manifestation because even the interested witnesses would not normally allow the real culprit for the murder of their relation let off by involving an innocent person. 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 appellant namely Muhammad Jehangir has not been able to establish any animosity of the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) for his false involvement in the case. Prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7), in a forthright manner, held the appellant namely Muhammad Jehangir responsible for the Qatl-i-Amd of Amjad Ali Khan son of Jahandad (deceased), Yasir son of Moazzam Khan (deceased) and Muhammad Rafique (deceased).
15. Furthermore, as mentioned above, the occurrence in question had admittedly taken place in broad daylight at 11.00 a.m and the same, therefore, could not have gone un-witnessed nor could have the culprit escaped unobserved. It is also a fact of the prosecution case that there was nothing in the line of sight of the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) which could have obstructed the view of the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) and prevented them from witnessing the appellant committing occurrence. Furthermore, during cross- examination of prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) it was brought on record that prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) were standing in close proximity of the deceased and the appellant and therefore, there was no possibility that the appellant would not have been identified during the incident. The prosecution witness namely Zabit Khan (PW-5) explained during cross-examination, as under:- "Amjad deceased was standing on the banria situated in between our land and Ubaid-Ur-Rehman.
The deceased Amjad Khan received fire shot when he was at the distance of about 05 feet from the banna situated in between our land and Noor Muhammad (since died). I was at a distance about 50 paces towards north from the place where Amjad received fire shot. Naib Tehsildar and Patwari both the PWs were standing near to me at that time, Rafique Girdawar and Yasir deceased were standing near to the place where Amjad received fire shot. Yasir was at the distance of 05/07 paces towards west from Amjad Khan deceased whereas Rafique Girdawar deceased was standing towards south from Yasir deceased. They both were standing close to each other. The accused persons were standing towards southern side from Amjad Khan (deceased) whereas they were standing towards south east side from the accused. Amjad Khan (deceased) received all the injuries at the same place. Both Yasir and Rafique started running together; one towards western side and other towards southern side. Firstly the accused chased Rafique deceased. The interse distance between the main passage/road and the banna in between our land and that of Noor Muhammad land is approximately 55/60 paces"
Similarly, the prosecution witness namely Tahir Mahmood (PW-6) was cross-examined in this regard and he replied as under:- "After 15 minutes of our reaching in the land of Khasra No. 1428, the occurrence took place. At the time of occurrence, I and Naib Tehsildar were on the passage situated towards northern side of the place of occurrence. The said passage is 50 paces away from the place where murder of Amjad took place. At the time of murder of Amjad, Yasir and Rafique deceased were present towards graveyard. The said graveyard is towards south west from where Amjad was murdered. The said graveyard is situated in Khasra No. 1427 owned by Sadiq s/o Ubaid-ur-Rehman. The said graveyard is in the area of 02/02% kanals. The said graveyard is 30/40 paces from the place of murder of Amjad deceased. Rafique and Yasir deceased were present at a distance about 20 paces from the area of graveyard at the time of murder of Amjad. Zabit was at a distance of 70/80 paces in Khasra No. 1427 when murder of Amjad took place. The said Zabit PW was towards western side from the place of murder of Amjad at that time. The deceased Amjad received fire shot with the interval of seconds. The deceased Amjad on receiving the first fire shot fell on the ground and thereafter he stood up. Thereafter on receiving the second fire shot he fell on the land. He received two further fire shots when he was in the process of falling and standing. I and Naib Tehsildar were standing on the passage mentioned above at that time. We stood at the same place after when Amjad received fire shots. Rafique ran 05/10 paces when he received fire shot. Rafique deceased was running while facing towards south. The accused were running behind him. The accused fired upon the deceased from behind the above said Rafique. After receiving first fire shot, Rafique Girdawar went ahead about 15/20 paces when he received further fire shots. The other fire shots were fired upon him when he was lying on the ground. When Rafique Girdawar was murdered, Yasir deceased was towards western side and at a distance of about 20/25 paces. He was at a distance of 85/90 paces from Rafique deceased."
Nazar Muhammad (PW-7) was also questioned in the same manner during cross-examination and he replied as under:- "We were standing on the western Banna of the land of Jahandad when quarrel started. Noor Muhammad asked to start the demarcation from "Say Hadda" of Langar and Dharaik. The said "Say Hadda" was available towards the western side of Ubaid-ur- Rehman. The said "Say Hadda" a bit further west from the place where Yasir received fire shot. The people available there asked me to sit underneath a tree shadow. The said tree was available towards North West from the land of Jahandad. There was 05/07 trees underneath 1 sat. I was the only person, who went there and sat.
After about 05/07 minutes of my sitting there, the occurrence took place, Zabit was present alongwith the Girdawar, Patwari and Amjad deceased when occurrence took place. They all were present in the land of Jahandad at that time. After receiving the fire shot by Amjad deceased, Zabit started running towards me and arrived close to me. After receiving fire shot by Amjad, Rafique and Yasir started running one toward western side and other toward southern side. The accused did not fire on Yasir, Rafique and Zabit at the place where they fired upon Amjad deceased. The accused fired upon Rafique deceased while running. Rafique deceased and the accused were facing towards southern side at that time and the deceased received fire shot while running. Rafique deceased received fire shot when the accused were at a distance of 05/07 paces. When Rafique deceased fire shot, Yasir was running towards Western side at that time.
Rafique deceased fell-on the ground at the same place where he received fire shot. Rafique almost ran 65/70 paces from the place of murder of Amjad when he received fire shot and at that time, Yasir was at a distance of 25/30 paces from the place of murder of Amjad. Thereafter Noor Muhammad Started running towards Yasir. Yasir might have further ran up to 25/30 paces towards west when he received fire shot. Yasir after reaching at the place of his murder stop there and at the time of receiving fire shot, he was facing towards east"
The perusal of the statements of prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) recorded by the learned trial court amply proves them to be truthful witnesses upon whom reliance can be placed. Reliance in this regard is 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 "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."
16. We have also appreciated the fact that the occurrence in this case took place at about 11.00 a.m and was reported by Nazar Muhammad (PW-7) with reasonable promptitude. According to the prosecution evidence, the oral statement (Exh. P.L.) of Nazar Muhammad (PW-7) was recorded by Asif Khan, SI (CW-13), at the R.H.C. Bahtar at 02.45 p.m. on the day of the occurrence and thereafter the formal F.I.R. was registered at 03.00 p.m at the Police Station, when the distance between the place of occurrence and the Police Station was as much as ten kilometres. Thus, it is apparent that the oral statement (Exh. P.L.) of the prosecution witness Nazar Muhammad (PW-7) was recorded without delay and the formal F.I.R was registered with promptitude, especially when during the incident as many as three persons had died. The prosecution witness namely Nazar Muhammad (PW-7) not only named the appellant but also mentioned each and every minor as well as a material fact of the incident in his oral statement (Exh. P.L.), which of course excludes the possibility of deliberation or consultation regarding the false implication of the appellant in the instant case.
The essential features of the occurrence have been elaborately explained in the oral statement (Exh. P.L.) of Nazar Muhammad (PW-7). The promptitude in lodging the F.I.R. also corroborates the case of the prosecution as against the appellant. This promptitude in reporting the matter to the police also 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 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."
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. P.L.) of Nazar Muhammad (PW-7) upon the basis of which the formal F.I.R was registered, was a genuine document and was made spontaneously, naturally and contained the true facts, devoid of any manipulation.
17. The medical evidence produced by the prosecution in the case, proves that Amjad Ali Khan son of Jahandad (deceased), Yasir son of Moazzam Khan (deceased) and Muhammad Rafique (deceased) succumbed to the injuries inflicted by the appellant. The medical evidence fully supports the ocular account as narrated by prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7). In view of the available evidence, it is ascertained and proved that the intent of the appellant was to cause death and that he is guilty of Qatl-i-Amd of Amjad Ali Khan son of Jahandad (deceased), Yasir son of Moazzam Khan (deceased) and Muhammad Rafique (deceased).
18. The learned counsel for the appellant has vehemently argued that as the prosecution witnesses namely Zabit Khan (PW-5) and Tahir Mahmood (PW-6) were confronted with their previous statements (Exh.DA and Exh. DB) respectively and as they were found to had made improvements in the said statements (Exh.DA and Exh. DB), therefore, their credit was impeached and they could not be relied upon.
In this regard, it is observed that during the course of the trial, no proof was brought on record that the documents (Exh.DA and Exh. DB) were indeed the previous statements of the prosecution witnesses namely Zabit Khan (PW-5) and Tahir Mahmood (PW-6).The question of the admissibility of a statement of a witness comes after the question of the relevancy of the said statement. The first requirement is that the evidence to be introduced during the trial should be relevant to the charge, second the oral, as well as documentary evidence, should be admissible and then comes the question of appreciation or giving weight to such evidence. For bringing any improvement made by a prosecution witness in his previous statement earlier recorded, then during cross- examination by the defence , his attention has to be drawn to that part of the statement made by him which contradicts his statement in the witness box and ideally the relevant portions of the statement used for contradicting a prosecution witness must be extracted fully in the deposition and marked separately and if he admits to have made the previous statement then no further proof is necessary to prove the contradiction however if the prosecution witness, after going through the earlier statement ,denies having made that part of the statement then it must be mentioned in the deposition and thereafter when the investigating officer or the witness who recorded the said statement is examined in the court, his attention should be drawn to the passage marked for contradiction and after going through the statement, if the witness admits that the prosecution witness had made that earlier statement only then the contradiction can be said to have been proved, however in the said case no such proof of earlier statements was got evidenced. The said documents (Exh.DA and Exh. DB) remained not proved and therefore the confrontation of the prosecution witnesses namely Zabit Khan (PW-5) and Tahir Mahmood (PW-6) with the said documents (Exh.DA and Exh. DB) cannot be equated with "proof of former statements inconsistent" with the statements of the prosecution witnesses namely Zabit Khan (PW-5) and Tahir Mahmood (PW-6) recorded by the learned trial court. The learned counsel for the appellant has also argued that the statement of Asif Khan, SI (CW-13), the Investigating Officer of the case wherein he stated that during the course of investigation he recorded statements of certain persons and came to the conclusion that it was Noor Muhammad (since dead) who had actually committed the murders of all the three deceased was relevant and admissible and proved that the appellant was innocent. The learned counsel for the appellant admitted that none of the persons on the basis of whose statements Asif Khan, SI (CW-13) came to the conclusion regarding Noor Muhammad (since dead), appeared before the learned trial court as witnesses. When the conclusions of Asif Khan, SI (CW-13) were based on statements of certain persons who never appeared before the learned trial court as witnesses then the opinion of Asif Khan, SI (CW-13) becomes inadmissible and irrelevant. Reliance in this regard is placed on the case of Muhammad Arshad and others Vs. The State and others (PLD 2011 Supreme Court 350), wherein the august Supreme Court of Pakistan has held as under:- "41. The rule then is that evidence, at a trial or in other proceedings, could be led only about facts.
But then this rule, like other rules, is not without exceptions and one such exception is envisaged by Articles 59 to 65 of the said Qanun-e-Shahadat Order which accept 'even' some 'OPINIONS' as evidence. These opinions, however, have to be of persons who are 'EXPERTS' in the relevant fields and were admissible only if they pertained to foreign law or to science or art or as to identity of handwriting or finger impressions or about the existence of any general custom or right or about the usages and tenets of any body of men or family or about any religious or charitable foundation or about the meanings of the words or terms used in particular districts or by particular classes of people. And it has been the consistent view of the Courts that an Investigating Officer could not be accepted as an expert nor could the investigation which, as mentioned above, was conductable even by an ordinary private person, could qualify as science or even as art.
42. It is, therefore, held that even under the law of evidence, the opinion of an Investigating Officer was not admissible as evidence.
43. It is consequently declared that neither did the Code of Criminal Procedure authorize or allow the Investigating Officers to form opinions about the guilt or innocence of an accused person which was a purely judicial function performable only by a Court of law nor did the Qanun- eShahadat Order recognize opinions of Investigating Officers as admissible in evidence.
44. Some other material has also been noticed by us which was permitted to become a part of the evidence at the present trial. And allowing such-like material to creep into legal evidence was again not confined just to the present trial but had become a routine affair at almost every trial.
45. The above-referred Muhammad Abdullah DSP (P.W.16.) was also asked some more questions while in the witness-box and had replied as under:-- "About 70 persons appeared in defence of the above accused persons.
I GOT OATH ON HOLY QURAN FROM 70 PERSONS WHILE GOING IN THE MOSQUE...............................Two persons RIAZ AND BASHER GAVE OATH ON HOLY QURAN REGARDING ALIBI OF ARSHAD son of Sanaullah while sitting in the Mosque." (Emphasis and underlining has been supplied)
46. Such a part of a witness's statement could not be accepted as legal evidence for more than one reasons. Firstly, because neither the 70 persons first above-mentioned nor Riaz and Bashir mentioned later appeared at the trial to state about the innocence of any of the accused persons.
Therefore, this P.W.16. stating before the Court what was allegedly stated to him by these persons was HEARSAY and thus disqualified to be treated as legal evidence."
19. Regarding the recovery of the Pistol (P-4) from the appellant namely Muhammad Jehangir son of Malik Ahmad Hussain, the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said Pistol (P-4) from the appellant 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 prosecution witness namely Zabit Khan (PW-5) admitted during cross-examination, as under:- "The police did not summon any independent person to witness the recovery"
Muhammad Naseer Inspector (CW-12), the Investigating Officer of the case, admitted during cross-examination as under:- "It was in my knowledge that both the witnesses of the recovery are the brothers of two deceased.
It was in my knowledge that both the above said witnesses were interested.
I did not summon any respectable of the locality, numberdar, councilor or any independent person to witness the recovery."
Section 103 of the Code of Criminal Procedure, 1898 is of vital significance to render search proceedings both transparent and creditable. The provisions of this section, unfortunately are honoured more in disuse than compliance. To appreciate it better, this section 103 of the Code of Criminal Procedure, 1898 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.
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."
Furthermore, it was admitted by Zabit Khan (PW-5) and Muhammad Naseer Inspector (CW-12), the Investigating Officer of the case that the place of recovery of the Pistol (P-4) was open to the access of all and was not in the exclusive possession of the appellant. The prosecution witness namely Zabit Khan (PW-5) admitted during cross-examination, as under:- "The house of Asad Khan from where the alleged recovery was effected is abandoned one."
Muhammad Naseer Inspector (CW-12), the Investigating Officer of the case, admitted during cross-examination as under:- "The house of recovery was Ghair Abad, without door and in demolished condition. Again said it was in position of demolished.
The house of the recovery was accessible to everyone."
For the above said reasons, the recovery of the Pistol (P-4) from the appellant namely Muhammad Jehangir son of Malik Ahmad Hussain could not be proved and cannot be considered as a circumstance against the appellant.
20. The motive of the occurrence, as mentioned by the prosecution witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7) was that prior to the occurrence, a dispute arose over the demarcation of land which resulted in the incident. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved.
Most importantly, the prosecution witness namely Nazar Muhammad (PW-7) admitted during cross-examination that it was Noor Muhammad (since dead) and not the appellant, who raised objection to the demarcation proceedings. Nazar Muhammad (PW-7) admitted during cross- examination, as under:- "It was Noor Muhammad who started shouting and objected not to demarcate the land."
Furthermore, during the course of the investigation, the Investigating Officer of the case did not collect any evidence so as to establish that there was any grievance developing in the heart of the appellant as against the three deceased, which motivated him to act in the manner in which he did. 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 to have committed the Qatl-i-Amd of the three deceased. There is a redolent absence of evidence with regard to the particulars of the 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.
21. We have disbelieved the evidence of the prosecution qua the motive and recovery of the Pistol (P-4) in this case. However, if the evidence of motive and recovery of the Pistol (P-4) is excluded from consideration, even then there is sufficient incriminating evidence available on the record against the appellant namely Muhammad Jehangir son of Malik Ahmad Hussain to prove the case of prosecution against him. As discussed earlier, the prosecution case was fully proved through the evidence of the eye-witnesses namely Zabit Khan (PW-5) Tahir Mahmood (PW-6) and Nazar Muhammad (PW-7). 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. Fahad Abid (CW-7), therefore, we hold that the prosecution has proved its case against the appellant namely Muhammad Jehangir son of Malik Ahmad Hussain beyond the shadow of any doubt.
22. Now coming to the quantum of the sentence, we have noted some mitigating circumstances in favour of the appellant namely Muhammad Jehangir son of Malik Ahmad Hussain, firstly, the evidence of recovery of the Pistol (P-4) from the possession of the appellant namely Muhammad Jehangir son of Malik Ahmad Hussain has been disbelieved by us for the reason mentioned in Para No.19 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 part of the Courts. In this regard we respectfully refer 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 the normal penalty of death. We are convinced that the appellant namely Muhammad Jehangir son of Malik Ahmad Hussain, 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 in the death of the deceased, therefore, in our view, the sentences of death awarded to the appellant a quite punitive. It has been held in a 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).
23. In the light of the above discussion, the conviction of the appellant namely Muhammad Jehangir son of Malik Ahmad Hussain, as awarded by the learned trial Court through the abovementioned judgment, is maintained but the sentences of death awarded to the appellant namely Muhammad Jehangir son of Malik Ahmad Hussain under section 302(b) P.P.C. on three counts are altered to imprisonment for life on three counts. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, is also extended to the appellant namely Muhammad Jehangir son of Malik Ahmad Hussain. All the sentences awarded to the appellant are ordered to run concurrently. Accordingly, with the above said modification in the sentence awarded to the appellant namely Muhammad Jehangir son of Malik Ahmad Hussain under section 302 (b) P.P.C., the Criminal Appeal No.289 of 2021, is hereby dismissed.
24. Consequently, the Capital Sentence Reference No. 06/T of 2021 is answered in Negative and the sentences of death awarded to Muhammad Jehangir son of Malik Ahmad Hussain, are Not Confirmed.