1. WAHID BUX BROHI, J.---Appellant Muhammad Yousuf stood his trial in the Court of Additional Sessions Judge, Sanghar for an offence under section 302, P.P.C. Read with section 34, P.P.C. On the charge that on 1-8-1991 at about 11-30 a.m. He, alongwith his father Bashir Ahmed, (the absconding accused) in furtherance of their common intention, committed Qatl-e-Amd of his grandfather Amanat Ali. On conclusion of the trial, the appellant was convicted by judgment dated 22-1-1996 for offence under section 302(a), P.P.C. And sentenced to death as Qisas. He preferred this appeal against the said conviction and sentence. The trial Court has also made a reference under section 374, Cr.P.C. For confirmation of death sentence. The appeal and the confirmation reference shall be disposed by this judgment. Briefly stated, the prosecution story, as reflected in the F.I.R. Lodged on 1-8-1991 at 12-30 p.m. At Police Station Sanghar by complainant Nazir Ahmed son of deceased Amanat Ali, resident of Chak No,56, Taluka Sanghar, is that he is a Zamindar and lives at the above address with his family members (including his father). They are in all two brothers and his elder brother Bashir Ahmed (the absconding accused) resides with his family members at Ward No,7, Sanghar town, who has three sons, namely, Muhammad Arshad, Muhammad Yousuf and Nasir. In the year 1987 his brother Bashir Ahmed's daughter Mst. Shahnaz Kauser was murdered and his brother had lodged a report against him (the complainant) at Police Station Sanghar which case is pending trial in the Sessions Court, Sanghar. His brother Bashir Ahmed had also got prepared record of the shops of his father with forged signatures of his father and had sold the same to his (Bashir Ahmed's) son Muhammad Yousuf in which matter the complainant's father had instituted a civil case against Bashir Ahmed and his son Muhammad Yousuf which is pending in the Court of Sessions Judge, Sanghar (presumably District Judge, Sanghar) and hearing of that civil case was fixed on 29-7-1991 on which date the complainant and his father, both were present in the Court and in presence of the complainant, appellant Yousuf asked his grandfather (complainant's father) to withdraw the case and give him the shop or else he would kill him (the deceased). On 1-8-1991 the complainant Nazir Ahmed, his son Shabbir Ahmed, and two cousins Ghulam Rasool son of Haji Murad and Sirajuddin and his father deceased Amanat Ali, went to Sanghar Town in connection with their personal work. First they went to their house in Ward No,8 and after staying there for a while, they proceeded to Bazar. Deceased Amanat Ali was ahead of them while the remaining four persons followed him. At about 11-30 a.m., when they reached Rehmat Shah Chowk, in front of Dr. Jameel's hospital, he saw his nephew Muhammad Yousuf and brother Bashir Ahmed coming towards them from front side. Yousuf was holding pistol in his hands and within their seeing, he made direct fires at the complainant's father while Bashir Ahmed, who was carrying a Chhurri inflicted 2 chhurri blows upon the complainant's father who, by that time, had fallen down due to the firearm injuries caused by Muhammad Yousuf. The complainant party was challenged not to approach them or else they would also be killed. Many persons of the town gathered there and the assailants, taking advantage of the rush, escaped alongwith the pistol. The Complainant party saw fire-arm injuries and Churri blows on the body of the deceased Amanat Ali. The complainant left his companions to guard the dead body and himself appeared at Police Station Sanghar where he lodged the report stating that his brother Bashir Ahmed and nephew Muhammad Yousuf have killed his father. S.I.P. Shabbir Ahmed of Police Station Sanghar recorded F.I.R. And took up the investigation. He inspected the place of occurrence from where he secured the dead body and held inquest thereon. He also secured five empties and a bullet (lead projectik) of pistol and a steel knife (Churri) with plastic handle of red colour and other articles of the deceased. He collected bloodstained earth from the place of occurrence and after sealing the relevant articles he prepared the Mashirnama of the place of incident in the presence of two Mashirs, namely Niaz Ali and Abdul Razzak, both residents of Chak No,56, Taluka Sanghar. Thereafter, the said S.I.P.
2. Forwarded the dead body to Civil Hospital, Sanghar for autopsy. On the same day he recorded the statements of P.Ws. Sirajuddin and Ghulam Rasool under section 161, Cf.P.C, who supported the case of the prosecution. On 2-8-1991, S.I.P. Shabbir Ahmed received information from P.S. Liaquatabad, Karachi that accused Muhammad Yousuf was arrested by S.H.O. Of that police station and that his custody may be taken from them. He proceeded to Karachi and secured the custody of appellant Muhammad Yousuf from the said police. He also secured the blood-stained clothes worn by the accused. He prepared such Mashrinama in the presence of two Mashirs, namely, A.S.I. Muhammad Shareef and P.C. Nazir Ahmed, and returned to Police Station Sanghar alongwith the accused. On the pointation of accused Muhammad Yousuf, he secured a pistol of .32 bore, which was in working order and smelt of fresh discharge of gun powder, by digging the ground near North-Eastern corner of the boundary wall of the Government Boys High School Sanghar. He sealed the same and prepared such memo. Of recovery in the presence of same Mashirs, namely, A.S.I. Muhammad Shareef and P.C. Nazir Ahmed. On the same day he recorded the statement of the mashirs under section 161, Cr.P.C. After completing the investigation, the said S.I.P. Submitted the charge-sheet (challan) in the Court of Civil Judge and F.C.M. Sanghar, showing the Bashir Ahmed as absconder. The case was sent to the Court of Sessions Judge Sanghar and then transferred to the Court of Additional Sessions Judge, Sanghar, where the trial was held. The accused/appellant was charged with offence punishable under section 302, P.P.C. Read with section 34, P.P.C., to which he pleaded not guilty and claimed trial.
3. In support of its case, the prosecution examined as many as nine witnesses namely; P.W.1 Nazir Ahmed (Exh.8), P.W.2 Siraj Ahmed (Exh.1-0), P.W.3 Ghulam Rasool (Exh.l1), P.W.4 Dr. Nisar Ali (Exh.12), P.W.5 Abdul Razzak (Exh.14), P.W.6 Muhammad Haneef (Exh.16), P.W.7 Fida Hussain (Exh.18), P.W.8 Muhammad Shareef (Exh.19) and P.W.9 Muhammad Aslam -(Exh.24). The witnesses produced the relevant documents while the Chemical Examiner's Report (Exh.26) and Ballistic Expert's Report (Exh.27) were produced by the Deputy District Attorney under a statement in writing. The statement of the accused was recorded under section 342, Cr.P.C. Wherein his case was of denial and false implication. Regarding his arrest he explained that he was picked up from a hotel alongwith 4 or 5 other persons and detained in police lock-up at Police Station Liaquatabad, Karachi from where he was brought to Sanghar by S.I.P. Muhammad Shareef. His clothes were neither stained with blood nor handed over to the said S.I.P. However, he added that he has been falsely implicated in this case due to enmity between his father and complainant, Nazir Ahmed. He produced a copy of private complaint under sections 302, 120-B and 114, P.P.C. (Exh.31) filed by complainant Nazir Ahmed against him and his father in the Court of Additional Sessions Judge, Sanghar and a copy of F.I.R. In Crime No,48 of 1987 in respect of murder of his sister Mst. Shahnaz Kausar. On completion of the trial, the learned Additional Sessions Judge, Sanghar, by his judgment dated 22-1-1996, convicted the appellant and passed the sentence as above. We have heard Mr. Azizullah K. Shaikh, learned counsel for the Appellant and Mr. Jalil Hashmi, A.A.- G. For the State. The learned counsel for the Appellant contended that the case of the prosecution rests on; (1) ocular evidence, (2) motive, (3) medical evidence and (4) circumstantial evidence consisting of recovery of crime weapon, matching of the crime weapon with the empties and bullet secured from the place of incident, and the arrest of the accused with blood-stained clothes, but the entire evidence placed on record is not free from doubt and hence not worth reliance, as such conviction could not be founded on such evidence. On the other hand the learned A.A.-G. Supported the finding of conviction, as according to him the ocular testimonies were true and reliable and circumstantial evidence adequately corroborated the same. In the first instance, he would like to consider the ocular testimonies which have been accepted by the trial Court completely. Learned counsel for appellant questioned the truth and credibility of ocular testimonies on the ground that the eye-witnesses are closely related to the deceased and the complainant and, besides being interested and hostile to the accused, their presence at the time of incident is also highly doubtful. He pointed out that admittedly there is enmity between the two parties who unfortunately belong to the same family, over disposition of shops of deceased Amanat Ali by his son, Bashir Ahmed under allegedly forged signatures of deceased Amanat Ali and sale thereof in favour of accused/appellant Muhammad Yousuf, besides murder of Mst.
4. Shahnaz Kausar, vide F.I.R. (Exh.32) produced by the appellant during his statement recorded under section 342, Cr.P.C. He explained that complainant Nazir Ahmed is son of the deceased Amanat Ali and P.Ws. Sirajuddin and Ghulam Rasool are cousins of the complainant Nazir Ahmed and, in the background Of the abovementioned animosity, they are not only related persons but hostile to the accused/appellant, and as such had a motive to implicate the accused falsely. He further argued that the witnesses are residents of different places, Nazir Ahmed is resident of Chak No,56, which as admitted by him is 13/14 miles away from Sanghar Town and P.W. Sirajuddin is also resident of the same Chak, while P.W. Ghulam Rasool is resident of chak No,11, which, as admitted by the former witness, is about 9/10 miles away from Chak No,56, therefore, they cannot be treated as natural witnesses. As against this the learned A.A.-G. Explained that the eye-witnesses are equally related to both parties and their presence in the company of deceased Amanat Ali in the town of Sanghar cannot be questioned on the sole ground that their houses are situated in Chak Nos. 56 and 11 at a distance of 10 to 13 miles from the town.
5. In fact, the evidence has come on record that deceased Amanat Ali had residential accommodation at Sanghar town also, and P.W. Sirajuddin (Exh.10) made it clear that he alongwith deceased Amanat Ali, complainant Nazir and P.W. Shabbir had gone to Sanghar and at the time of incident they were coming from the house of deceased Amanat Ali. The F.I.R. (Exh.9) also mentions the same fact that the complainant party alongwith deceased Amanat Ali had gone to Sanghar in connection with their personal work. The complainant has deposed that they had gone to their house at ward No,8 from where they were proceeding to Bazar when this incident took place. In the sketch (Exh.17) prepared by Tapedar Muhammad Hanif P.W.6 (Exh.16) point "E" is shown to be the residence of deceased Amanat Ali which was 433 feet away from point "A" , where deceased Amanat Ali recieved injuries. In these circumstances if deceased was accompanied by his son complainant Nazir Ahmed, his grandson Shabbir Ahmed and complainant's cousins Ghulam Rasool and Sirajuddin, their presence cannot be doubted on the ground that their houses were situated about 10 to 13 miles away from Sanghar town, unless it is established, otherwise, that their versions about their presence were unbelievable because of inconsistency or contradiction in their evidence. All the same, relationship of these witnesses with the deceased would not furnish a ground by itself to discard their testimony. In this context we may refer to the principles laid down by the Honourable Supreme Court from time to time. The question, to what extent the testimony of interested person claiming be eye-witness of occurrence be evaluated and believed received full attention by the Honourable Supreme Court in the case Niaz v. State PLD 1960 SC 387, wherein following observations were made:- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnesses the occurrence and were in a position to identify the offencees, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to he the true number of culpties, their evidence may. In the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstances which corroborates their testimony. This circumstances need not be such that it can of its own probative force bring home the charge to the accused." This point was further elaborated in the case Sahib Masih and others v. The State 1982 SCM R 178 in which it was held that in the case of interested witnesses, it is expected that their statements ring true or are not intrinsically unsound or inconsistent and when this test is satisfied, then in the case of ordinary interested witnesses, independent corroboration of some sort is looked for and ensured.
6. Again, in very clear terms the Honourable Supreme Court observed in the case Ziaullah v. The State 1993 SCM R 155, that the rule laid down by the Supreme Court in this behalf is that mere relationship of an eye-witness with the deceased or his enmity with the accused by itself does not furnish a valid basis to reject his testimony, and in a such-like case, as a rule of prudence what is required is the proper scrutiny of his testimony and to seek corroboration before its acceptance. To quote a specific instance, it may be pointed out that in the case Mubarak v. The State 1982 SCM R 531, the witness was cousin of both parties, his statement in absence of any motive to give false evidence was implicitly relied upon and was held to be sufficient to bring home the guilt of the accused. So also, it was held in PLD 1996 SC 138 that mere relationship of an eyewitness with deceased or his enmity with accused was not valid basis for rejecting his testimony, however, testimony of such witness should be subjected to closer scrutiny and its corroboration also sought before it is accepted. Recently, in the case of Gul Khan v. The State 1999 SCM R 304, the facts of the case disclosed that there existed enmity between the parties, but since the prosecution evidence qua the accused rang true and stood corroborated by abscondence of accused as well as the motive which was proved by the statement of first informant and other eye-witness, while medical evidence was in no manner in conflict with ocular testimony, it was held that relationship by itself is no ground to discard the evidence in the case; consequently, after considering all the circumstances of the case, the testimony of eye-witnesses was believed and the conviction was upheld. Likewise, conviction was upheld in Sharafat Ali v. The State 1999 SCM R 329, holding inter alia, that no doubt the witnesses were related to the deceased their mere relationship was no basis to discard their evidence. The evidence of the material witnesses is, therefore, to be evaluated and assessed in the light of the above-stated principles. In the first instance the testimonies are to be subjected to a closer scrutiny to find out if the versions given by the eye-witnesses are free from major contradictions and are inherently consistent and worth reliance and then some sort of independent corroboration be also looked for. P.W.1 complainant Nazir Ahmed is son of the deceased; he has deposed that at the time of incident his son Shabbir and P.Ws. Siraj and Ghulam Rasool were accompanying him and within their seeing appellant Muhammad Yousuf who was coming from front side alongwith his father Bashir Ahmed fired directly at Amanat Ali at Rehmat Shah Chowk. He stated that Amanat Ali fell down due to firearm injuries, whereafter Bashir inflicted Chhuri injuries upon him and Amanat Ali died on the spot. According to him the place. Of occurrence was Rehmat Shah' Chowk in front of hospital of Dr. Jamil and the time was 11-00 a.m. In cross-examination he stated that he was 6/7 paces away from deceased toward his back side and that the accused fired at his father from a very short distance. P.W.2 Siraj Ahmed has also given a similar version stating that he accompanied P.W. Shabbir and complainant Nazir while deceased Amanat Ali was going ahead of them, and when they reached near Jamia Masjid in front of clinic of Doctor Jamil, he saw that appellant Yousuf fired directly from his pistol at deceased Amanat Ali. The accused threatened them not to come near them otherwise he will fire at them, therefore, they kept off. Thereafter, absconding accused Bashir caused Chura injury to deceased Amanat Ali, who as a result of injuries fell down. In cross-examination he stated that the time of incident was 11-00 a.m., and that they were at a distance of 7 paces from the deceased. Evidence of P.W. Ghulam Rasool shows that he was accompanying Nazir and Siraj while deceased Amanat Ali was going ahead of them and they were going towards the town. When the deceased reached Rehmat Shah Chowk, appellant Yousuf fired at him from his pistol. He has given the time of incident at 11-30 a.m. He has stated that accused Yousuf threatened them not to go near them else he would kill them. He is, however, silent about the other fact of Churn injuries caused to deceased Amanat Ali but he has added that when accused Yousuf ran away they went near deceased Amanat Ali, who was lying dead and they found pistol shot injury and knife injuries on the body of the deceased. He did not see anybody causing knife blow to the deceased but he saw a knife which was lying at the place of incident. Thus, a close scrutiny of the evidence of the eve- witnesses would show that there are no contradictions about the time and place of I it. 'dent and the firearm injuries caused by pistol by accused Bashir to deceased Amanat Ali. The only omission in the evidence of P.W. Siraj is that he is silent about the presence of P.W. Ghulam Rasool at the time of incident; so also P.W. Ghulam Rasool has not been able to state who caused knife injuries to the deceased, otherwise, the evidence of these witnesses is consistent about all other particulars of the occurrence. For a single omission the entire version cannot be doubted, as omissions of this kind are bound to occur with the lapse of time. This is a broad daylight incident and the eyewitnesses have seen the assailants from a very close point and there is no substantial infirmity or weakness in their testimonies as such there is no reason to doubt their veracity. In cross-examination nothing adverse could be elicited from them so as to make their versions inconsistent on account of discrepancies, except the point of relationship and enmity. Thus, their evidence is inherently believable. On the other hand the defence theory is that complainant Nazeer Ahmed himself killed his father.
7. Such suggestion was put to him in the cross-examination that he killed his father and foisted the case upon the accused persons which he denied. It was also suggested to P.W. Siraj that he, in collusion with complainant Nazeer Ahmed caused murder of deceased Amanat Ali but he denied the same. Similarly, P.W. Ghulam Rasool denied the suggestion that the murder was committed by complainant Nazeer Ahmed and accused Yousuf was falsely implicated. However, the accused/appellant in his statement recorded under section 342, Cr.P.C. Did not come up with such a plea. He also did not examine himself on oath under section 340, Cr.P.C. So that the defence theory could be examined in the light of his version. No witness was examined in defence on behalf of the accused.. On the whole, the defence theory could not be substantiated. Even otherwise, this is broad daylight incident taking place in the town of Sanghar, it can hardly be conceived that the complainant would select such a place and time for killing his father, when the latter was residing with him all along. However, it may be clarified that the law is well-settled that failure of the accused to establish the defence plea is never a ground to hold that the case of prosecution was proved, as the prosecution has to make out the case on the strength of its own evidence and beyond reasonable doubt. As regards corroboration, the medical evidence fully supports ocular testimony. Dr. Nisar Ali, conducted the post-mortem examination and found the following injuries on the body of deceased Amanat
(1) Fire-arm entry wound 1 c.m. x 1 c.m. Transverse direction margin inverted skin burnt on right temporal region.
(2) Fire-arm entry wound 1 c.m. x 1 c.m. Margins inverted skin burnt, transverse in direction on mid auxilliary line at lower part of right side of chest.
8. (3). Fire-arm entry wound 1 c.m. x 1 c.m. Margins inverted skin burnt transverse in direction on anterior auxilliary line 5 c.m. Below the injury No,2 on right side of chest.
(4) Fire-arm entry wound 1 c.m. x 1 c.m. Margins inverted skin burnt on post auxilliary line transverse in direction 5 c.m. Above the injury No,2 on right side of chest.
(5) Fire-arm exit wounds 2 c.m. x 2 c.m. Skin averted at mid auxilliary line on left of chest at the level of nipple.
(6) A raised inflamated adematous spot measuring 3 c.m. x 1 c.m. On post axillary line on left side of chest at level of 2 c.m. Above the nipple (a bullet removed from the spot by dissection).
(7) Fire-arm exit wound 3 c.m. x 2 c.m. On lateral past of left orbit damaging the eye ball and upper lid. This was probably the exit wound of injury No, 1 .
(8) Incised stab wound 3 c.m. x 1 c.m. Above downward in length at chest cavity deep on right side of chest 7 c.m. Inferio lateral to the nipple.
(9) Incised stab wound 3 c.m. x 1 c.m. Mussle deep on right buttock. He found the skull fractured at the site of injury No,1 and at the site of exit i,e, left orbital region. The membranes and brain matter were badly damaged and skull cavity was full with clotted blood.
9. The chest was perforated at entry wounds Nos.2, 3 and 4 and exit wounds Nos.5 and 6 and also at the site of injury No,8. Ribs were also fractured and the heart was damaged. He opined that injuries Nos.1, 2, 3 and 4 were individually sufficient to cause/death in ordinary course of nature. According to him, the fires were made from a close range of within 6 inches, and injuries were caused by discharge of firearm containing bullets, while injuries Nos.8 and 9 were caused by sharp-cutting substance such as knife. In his opinion the death was instantaneous and the probable time between death and post-mortem was .About 3 hours. He started post-mortem examination at 2- 00 p.m. Which shows that the death had taken place at about 11-00 a.m. Thus, the time of death given by the Medical Officer coincides with the version of eye-witnesses. As regards the distance from which the firearm was discharged, the complainant stated that the pistol was fired from a very short distance and the medical officer supports this version as in his opinion the firearm was discharged from a distance, within 6 inches. His view is based on the fact that the skin was burnt at the place of firearm injuries. The medical evidence further lends support to the ocular testimonies as regards the weapon used in commission of the offence. The Medical Officer has opined that injuries were caused by a sharp-cutting substance such as knife, while the rest were firearm injuries. The eye-witnesses have also given the same account, stating that deceased Amanat Ali received firearm injuries and injuries with Chhuri. In this way ocular testimonies are fully supported by the medical evidence. The other significant corroboration rendered to the ocular testimony is the recovery of pistol on the pointation of accused which in view of the ballistic expert proved to be the firearm from which empties secured from the place of incident were fired. The recovery of five crime empties and bullet made from the place of incident under the Mashirnama Exh.15 was proved through the attesting witness Abdul Razzak who was examined as P.W.5 Exh.14. The recover) of crime weapon namely the pistol used in commission of offence, made under the Mashirnama Exh.22, was proved through the evidence of one of the attesting Mashirs namely A.S.I. Muhammad Sharif who was examined as P.W,8 Exh.19. His evidence shows that the appellant led the police party to the compound wall of Government High School Sanghar and on his pointation the pistol was secured which was in fact lying buried under ground, wrapped in plastic bag. The Ballistic Expert's Report Exh.27 was produced by the Assistant Public Prosecutor purportedly under section 510, Cr.P.C. To which no objection was raised by the defence at the time of its production. The memo. Of recovery clearly shows that when the Investigating Officer inspected the place of incident he secured blood- stained earth, Chhuri, five empties of 7.6 m.m. And a bullet (lead projectile), besides other Articles of deceased. The Ballistic Expert's Report Exh.27 is in positive and shows that the five empties of 7.6 m.m. And one bullet of 7.6 m.m. Were fired from the pistol forwarded to them by the police. These pieces of evidence, therefore, proved that the empties and bullet secured from the place of incident were fired from the pistol produced by the accused. The learned counsel for appellant, however, questioned the evidence on the ground that Mashir Abdul Razzak was brother of P.W. Siraj and was resident of Chak No,56, while the recovery of crime weapon was proved by Police Mashir, whereas the Investigating Officer was not examined by the trial Court. As regards the relationship of Mashir Abdul Razzak, admittedly he is brother of P.W. Siraj and is resident of Chak No,56 but he has in cross-examination explained his presence at the time of incident. He has stated that he had taken his ailing daughter for her treatment to Dr. Bhag Chand whose clinic is about 40/50 paces away from the place of incident. He left his daughter to the care of her mother and went to the place of incident. Since his close relative was murdered whose dead body was lying at a distance of 40/50 paces from the clinic, it was quite reasonable and also natural that he proceeded to the place of incident. There was no legal bar that he should not act as Mashir because he was relative of the deceased. His evidence is truthful, the trial Court has rightly believed the same. As regards the testimony of A.S.I. Muhammad Sharif on the point of recovery of crime weapon, suffice it to say that he was not relative of any party and his evidence was free from any infirmity, therefore, there was no reason to reject his evidence solely on the ground that he is a police officer.
10. The law on this point is now well-settled. The Honourable Supreme Court in the case of Mushtaq Ahmed v. The State PLD 1996 SC 574, it has held that the evidence of a police officer in such circumstances can be accepted. The relevant observations are as under:-- "That likewise there is marked distinction between a case in which the offence charged with is the recovery of the article itself like recovery of an unlicensed Klashnikov and a case in which the article recovered e.g. a crime weapon is to be used as a corroborative piece of evidence. In the former case if the witnesses to the recovery were police personnel though it was possible to have two Mashris from the locality where recovery was made, their testimony in the absence of other reliable pieces of evidence would not warrant eviction, whereas in the latter case, if other pieces of evidence on record are free from doubt, the testimony of the police personnel if otherwise free from any legal infirmity may be accepted. That the question, whether testimony of a police official as a Mashir to the recovery of an offending article is to be accepted or not besides testing on the touchstone of the above legal principles, depends on the facts of each case, the Court will have to discern inter alia, as to whether such witness bore any animus against the accused involved or was he not over-zealous Investigating Officer/witness." It is needless to mention that the above view was reaffirmed in the case State v. Bashir and others PLD 1997 SC 408. As regards non-examination of Investigating Officer, the application Exh.23 made by A.P.P. Shows that the Investigating Officer was reported to have retired, the trial Court had, therefore, examined Muhammad Aslam P.W.10, a Constable who was conversant with the handwriting of Investigating Officer S.I.P. Shabbir Ahmed. The defence did not cross-examine this witness. In the circumstances when the recoveries are proved by the attestating witness/Mashirs, there is no reason to disbelieve the same. Learned trial Court has rightly accepted this piece of evidence. Consequently, it follows that a strong piece of corroborative evidence in the form of recovery of crime weapon on the pointation of accused has come on record which is supported by the recovery of crime empties and bullet from the place of incident and positive report of ballistic expert as regards matching of these shells and bullet with the crime weapon. As regards the motive, complainant Nazeer Ahmed has given the background of strained relations between them, in his examination-in-chief, in the following words:-- "In the year 1987 the incident of murder of the daughter of accused Bashir namely Mst. Shahnaz had taken place and in that case I was made accused and Bashir was the complainant. Prior to this incident there was between the deceased and absconding accused Bashir regarding the transfer of shops, and regarding that dispute over the shops the litigation was already pending before the Sessions Court Sangher. Previously in that litigation the date of 'hearing was 29-7-1991 and I alongwith my deceased father has also attended the Court. Yousuf had threatened my father to transfer the shop in his favour otherwise he challenged my father for dire consequences. The incident of the murder in this case has accrued after 2/3 days of the aforesaid date of hearing." In cross-examination he has admitted that he had not reported the matter to police when his father was threatened with dire consequences. He has also admitted that the shops were already transferred in favour of accused Yousuf before 29-7-1991 but he has denied that no case regarding shop was pending in the Sessions Court on 29-7-1991. A suggestion was put to him about vacating of the house which he denied in the first instance and then voluntarily explained that there was compromise decree by which the house was to be vacated on 31st August but the accused party committed murder of his father. Thus, on the point of motive he has focussed the evidence on the dispute of shops for which threats were issued to his father to get the same transferred or also he should face dire consequences, but in the cross-examination an admission has been elicited from him to the effect that the shops had already been transferred in favour of accused Yousuf before the date of alleged threats viz. 29-7-1991.
11. On this point, the other witness P.W. 2 Siraj who is complainant's cousin has spoken about the dispute over shops in general terms. According to him the cases were pending before the competent Court of Law. His version has not been challenged in the cross-examination. Similarly, P.W. Ghulam Rasool speaking on this point has deposed that prior to this incident accused Yousuf had dispute with his grandfather and such cases were pending in Civil Court and that Amanat Ali was killed due to landed property. In this way, he has supported the other witnesses that dispute over the shop was the motive of the murder. He was not cross-examined on this point, as such his version has gone unchallenged like that of P.W. Siraj. In this manner a unanimous version has come on record that there was dispute over shops and the cases were pending and that was the motive with the accused persons to commit murder of deceased Amanat Ali. The ocular testimonies are, therefore, satisfactorily corroborated by this piece of evidence also. Next, the learned counsel for appellant assailed the genuineness of the recovery of blood-stained clothes from the person of accused by Liaquatabad Police at Karachi. On this point there is evidence of P.W. Muhammad Sharif A.S.I.P. Of Police Station, Sanghar who had acted as Mashir. The other Mashir who was not examined was Constable Nazeer Ahmed. On 3-8-1993 both of them accompanied the Investigating Officer S.I.P. Shabbir Ahmed to Karachi where S.II.O. Liaquatabald Police Station, Nasiruddin Ansari handed over the custody of accused Yousuf to S.I.P. Shabbir alongwith papers relating to the arrest of accused. The Mashirnama of arrest Exh.28 was produced at the trial by P.W. Muhammad Aslam who was examined in place of Investigating Officer S.I.P.
12. Shabbir Ahmed as the latter had retired and his whereabout were not known. The Mashirnama of arrest shows that the arrest was affected by S.H.O. Nasiruddin Ansari in presence of A.S.I.
13. Badaruddin and Arshad Ali, all belonging to Police Station Liaquatabad but it is strange enough to note that none of them was examined in the Court to prove the fact of the arrest and the other significant fact that at the time of arrest the accused was wearing bloodstained clothes. However, Muhammad Sharif has stated that when accused Yousuf was handed over to S.I.P. Shabbir he was wearing blood-stained Shirt and Shalwar which were got removed by S.I.P. Shabbir Ahmed. Learned counsel contended that the incident had taken place at Sanghar on 1-8-1991 and according to Mashirnama Exh. 28 the accused was arrested at 12-30 noon on 2-8-1991 at Karachi wearing blood-stained clothes, but it does not stand to reason what prompted the accused to be present at the gate of Police Station Liaquatabad wearing blood-stained clothes. I would agree with the learned counsel that it does not appeal to prudent mind that the accused while travelling right from Sanghar to Karachi and having adequate opportunity to wash his clothes at any point of time would like to remain in same position wearing blood-stained clothes. In such a situation, basically the prosecution was bound to place on record the required evidence to prove the fact of arrest but as already pointed out none of the police officials, connected with the arrest of accused was examined by the prosecution. A.S.I. Muhammad Sharif who acted as Mashir of recovery of clothes from the person of accused at Police Station Liaquatabad had reached the said police station on the following day of arrest; obviously he could not say about the state of affairs at the time of arrest. Consequently we have no hesitation in holding that the fact that the accused was wearing blood-stained clothes could not be proved beyond reasonable doubt, therefore, the prosecution cannot seek corroboration from this piece of evidence.
14. On a consolidated examination of the different pieces of evidence produced at the trial, it may be concluded that the prosecution has been able to furnish trustworthy ocular evidence by examining complainant Nazecr Ahmed and two eye-witnesses Siraj and Ghulam Rasool who although were closely related to deceased and on inimical terms with the accused, gave confidence inspiring evidence at the trial, and their testimonies, besides being inherently credible were corroborated by medical evidence as regards the time of occurrence and weapon used in commission of the offence, the recovery of crime weapon namely the pistol at the instance of the accused which matched with the empties secured from the place of incident, and the motive which was also proved to the extent that there was dispute over the shops and it was the cause of Qatl-i-Amd of deceased Amanat Ali. Consequently, we are inclined to uphold the finding of the trial Court that appellant, Muhammad Yousuf, is guilty of causing death of his grandfather Amanat Ali and, as such has committed offence of Qatl-i-Amd but there are reasons to disagree with the trial Court that the appellant committed Qatl-i-Amd liable to Qisas within the meaning of section 302(a), P.P.C. In the first instance, it may be pointed out that the phenomenon of recording conviction and awarding sentence in a murder case, after amendments made in sections 299 to 338, P.P.C. Initially through Criminal Law (Amendment) Ordinance, 1990 and finally by Criminal Law (Amendment)
15. Act, 1997, requires due circumspection and a vigilant application of mind. If, from the evidence on record, the trial Court is satisfied that it is proved beyond reasonable doubt that the offence of Qatl-i-Amd has been committed within the meaning of section 300, P.P.C.
16. It has to record such finding that a particular accused person is guilty of Qatl-i-Amd. Then, for the purpose of punishment, section 302, P.P.C. Comes into play which, on the face of it, provides three categories of punishments but in real sense on deeper analysis of the provisions of the said section, it would appear that, in fact, there is only one punishment for Qatl-i-Amd which, as envisaged by clause (a) of the section, is sentence of death as Qisas. The remaining two clauses
(b) and (c), are, in true sense of the word, two exceptions to this provision. The first exception as contemplated under clause (b) of the section is that if the proof in either of the forms prescribed in section 304, P.P.C. Is not available, then the person found guilty of the offence of Qatl-i-Amd is to be punished with death or imprisonment for life as Tazir, having regard to the facts and circumstances of the case. The second exception within the purview of clause (c) of this section, covers those cases where, according to the Injunctions of Islam, the punishment of Qisas is not applicable and in that event the person found to be guilty of offence of Qatl-i-Amd shall be punished with imprisonment of either description for a term which may extend to 25 years. Both these exceptions have a very wide scope. Therefore, after recording conviction for offence of Qatl- i-Amd the Court has to consider if the person found guilty of the said offence is to be punished with death as Qisas within the meaning of clause (a) of section 302, P.P.C. Or not and due application of mind is required at this stage, because as observed by the Honourable Supreme Court in the case of Muhammad Aslam v. Shaukat Ali 1997 SCM R 1307, if the conviction is under section 302(a), P.P.C.
17. The sentence of death as Qisas cannot be substituted by the Court with that of imprisonment for life, unless it is otherwise undone under section 309 or 310, P.P.C. As such, before awarding punishment for Qatl-i-Amd it is imperative on the Court to examine the facts and circumstances of each case in the light of evidence on record as well as the legal aspects to ensure whether the exceptions enjoined in clauses (b) and (c) of section 302, P.P.C. Are attracted or not. There may be a host of reasons for which punishment of death as Qisas may not be awarded. The Honourable Supreme Court has elaborately examined this aspect in many cases such as (i) Abdul Haque v. The State PLD 1996 SC 1; (ii) Ali Muhammad v. Ali Muhammad PLD 1996 SC 274; (iii) State v.
18. Muhammad Hanif 1992 SCM R 2047 (iv) Mudassir @ Jimmy v. State 1996 SCM R 3 and (v) Abdul Rauf v. State 1998 SCMR 1731, besides the landmark judgment in the case of Federation of Pakistan v. Gul Hassan Khan PLD 1989 SC 633 read with Federal of Pakistan and another v. N.-W.F.P. Court and others PLD 1990 SC 1172 which led to promulgation of the Criminal Law Amendment Ordinance/Act for the purpose of amending the provisions of sections 299 to 338, P.P.C. So as to bring the provisions of the said sections in consonance with Injunctions of Islam in accordance with the Holy Qur'an and the Sunnah.
19. As a matter of fact, as observed in para.55 of the judgment in the case of Abdul Haque (supra), primarily it would be deemed to be the bounden duty of the Prosecution to prove positively whether the case is covered by Qatl-i-Amd liable to Qisas, not liable to Qisas, or liable to Tazir.
20. Thereafter, on conclusion of the trial, the trial Court is required to scrutinise prodently the applicability of exceptions contained in clauses (b) and (c) of section 302, P.P.C. And after having satisfied itself that these exceptions are not applicable only then the punishment of death as Qisas provided in clause (a) of the said section is to be awarded. This would also be in accordance with the principle laid down in the case of Mudassir @ Jimmy v. The State 1996 SCM R 3. In the instant case, the trial Court has held that appellant Muhammad Yousuf has committed offence of Qatl-i-Amd punishable with death under subsection (a) (purportedly clause (a)) of section 302, P.P.C. As the prosecution has, through the testimony of three eye-witnesses, supported by the medical evidence motive and recovery, successfully proved the commission of Qatl-iAmd within the meaning of section 304(b), P.P.C. The learned Judge is of the view that there is no bar in respect of the present appellant as to enforce against him Qisas by the Wali of the victim.
21. Consequently, he has awarded punishment to the appellant under section 302(a), P.P.C. No doubt, the trial Court has made a mention that the evidence meets the requirements of clause
(b) of subsection (1) of section 304, P.P.C., but, in view of the principles laid down by the Honourable Supreme Court in the case of Abdul Haque (supra), the essential requirements of this subsection could only be satisfied after the matter is examined in the light of Article 17 of the Qanun-e- Shahadat Order, 1984 (the Order), which is to be read with Article 3 of the Order. The relevant portion of the observations made by the Honourable Supreme Court which provide illustrative guidelines, is reproduced herein "7. A perusal of the above-quoted section 302 indicates that it provides three punishments under clauses (a), (b) and (c) thereof for a person who commits Qatl-i-Amd subject to the provisions of the Chapter which contains the above section. It may again be pointed out that under clause (a) the punishment provided is death as Qisas. However:- this clause (a) is not applicable if clauses
(b) envisages sentence of death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case if the proof in either of the form provided for in section 304 (c), is not brought on record. It may be pertinent to mention that above-amended section 304 lays down nature of proof required for proving offence of Qatl-i-Amd liable to Qisas namely:-
(a) the accused's voluntary and true confession of the commission of the offence made before a Court competent to try above offence; or
(b) production of the evidence in terms of Article 17 of the Qanun-eShahadat Order, 1984 (P.O. No,10 of 1984) (hereinafter referred to as the Order). Admittedly, the appellant has not made any voluntary confession in terms of above clause (a) of section 304, P.P.C. The question, therefore, which needs consideration, is as to whether the prosecution has been able to bring on record evidence in accordance with Article 17 of the Order. It may be stated that clause (1) of Article 17 of the Order deals with 'the competence of a person to testify'. It inter alia provides that the number of the witnesses required in any case shall be determined in accordance with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah.
22. It will not be out of context to point out that Article 3 of the Order deals with the question as 'who may testify'. Proviso 3 to above Article envisages that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah for a witness and where such witness is not forthcoming, the Court may take the evidence of a witness who may be available. In the case in hand, the trial Court has not adverted to the above aspect while recording or accepting the testimony of the eye-witnesses.
23. In this view of the matter, it can safely be concluded that the requirements of Article 17 read with Article 3 of the Order were not fully complied with. Hence, clause (b) of section 302, P.P.C. Is applicable to the case in hand." Thus, while recording or accepting testimony of the eye-witnesses, the requirements of Article 3 of the Qanun-e-Shahadat Order are to be kept in mind and a procedure is to be adopted by the Court to satisfy itself about the competence of witnesses in accordance with the qualifications prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. In more specific terms as observed by the Peshawar High Court in the case of Iftikhar Ahmed v. The State 1998 PCr.LJ 2022, the exercise of Tazkiyat-ul-Shahood was to be undertaken before awarding sentence of death as Qisas i,e, while convicting the accused for the offence of Qatl-i-Amd liable to Qisas under clause (a) of section 302, P.P.C. The record shows that in the instant case the trial Court had not adverted to this aspect while recording or accepting the testimony of the eye-witnesses. A simple observation in the judgment that the evidence was sufficient within the meaning of clause
(b) of subsection (1) of section 304, P.P.C. Is, therefore, not enough. The record is silent about any procedure adopted by the trial Court leading to its satisfaction about the competence of the eye- witnesses as regards their qualifications prescribed by the Injunctions of Islam. In absence of such an exercise, I am convinced that the case in hand is covered by clause (b) of section 302, P.P.C. As such, the appellant is to be awarded punishment of death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case. It is now to be determined if the maximum penalty of death be awarded to the appellant or not. No doubt, the evidence on record is sufficient to make out that the appellant Yousuf is guilty of murder of deceased Amanat Ali, but we cannot ignore the evidence as regards the motive. The complainant, while lodging the F.I.R., had stated that two days prior to this occurrence i,e, on 29-7- 1991, the complainant alongwith his father, the deceased, was present in the Court in connection with hearing of a civil case filed by the deceased regarding the dispute over shops with appellant Muhammad Yousuf when the said appellant warned deceased Amanat Ali to withdraw the case and give the shops to him else he would kill him but at the trial the complainant stated that appellant Yousuf warned deceased to transfer the shops in his favour otherwise he should face dire consequences. But, when cross-examined he admitted that the shops were already transferred in favour of the appellant Yousuf. The prosecution has all along based its case on this motive which is not totally clear from the version of complainant Nazeer. The other two witnesses have simply stated that there was dispute between the deceased and the accused on the shops, since such cases were pending, and to that effect their evidence has been accepted. They have not spoken about the threats given by the accused. Thus, it cannot be denied that the direct evidence on the point of motive is that of the complainant Nazeer which, as mentioned above, suffers from ambiguity. In view of the settled law, when motive is shrouded in mystery, the benefit may be extended to the accused and the same may be accepted as a mitigating circumstance for awarding lesser penalty. Moreover, both the parties belong to one and the same family and there is also a case against the complainant regarding the murder of daughter of the absconding accused Bashir and the sister of the appellant. Besides, the age of appellant is also worth consideration as, he was about 20 years old at the time of commission of the offence. Considering these factors, we would award imprisonment for life as Ta'zir to the appellant Muhammad Yousuf, under section 302(b), P.P.C. The circumstances warrant benefit of section 382-B, Cr.P.C. To the appellant which is also allowed to him. With these observations, the reference for confirmation of death sentence is rejected and while awarding sentence as above, the appeal is also dismissed.