' IFTIKHAR MUHAMAMD CHAUDHARY, J.---Instant appeal has been filed by leave granting ,order, dated May 30, 1997 to consider the following contentions:-- "Learned counsel submits that Ahmad Khan P.W.2 is the father of the deceased. Salhawat Hussain P.W.3 is a member of his tribe. Intisar Hussain who was an independent witness was not produced by the prosecution in support of its case. It is added that while discarding the testimony of P.Ws., Muhammad Amin and Muhammad Afzal were acquitted by the Courts below and as such without sufficient corroboration which was surely not available on record, there was no justification with the Courts below to register conviction against the petitioners. Admittedly enmity between the parties existed and that being so, prosecution was required to have produced evidence of unimpeachable integrity to corroborate the eye-witness account."
2. Precisely stating facts of the case as disclosed by the prosecution before the trial Court are that Muhammad Azam (deceased) committed murder of Muhammad Latif son of Sultan, father of appellant Muhammad Sarfaraz alias Sappi on account of difference existed between them during elections held in the year 1990. In that case P.W.2 Ahmad Khan was also one of the accused.
However, subsequently deceased Muhammad Azam was acquitted of the charge as parties compounded the offence. It is alleged that the brothers of late Muhammad Latif did not accept the compromise wholeheartedly, therefore, on 4th June, 1993 when P.W. Ahmad Khan, father of the deceased alongwith Intisar Haider (not produced) and Sakhawat Hussain (P.W.3), both residents of Ratti Tibbi were going to the house of Murtaza who is also a resident of same village. They met with Muhammad Azam deceased near the house of one Mustafa. It is alleged that at that stage of time appellants Sarfraz alias Sappi and Abdul Rashid both were armed with .12 bore guns, appellant Muhammad Ashraf armed with a 222 rifle; Muhammad Amin (acquitted accused) aimed with a kalashnikov and Muhammad Afzal (acquitted accused) armed with 8 m.m. Rifle came at the spot.
Acquitted accused Muhammad Afzal told Sarfaraz alias Sappi (16 years at the time of incident) to murder Muhammad Azam deceased because he has murdered his father. On this, Sarfaraz alias Sappi fired upon Muhammad Azam deceased which hit him on his right side of the shoulder on the rear and also on the back side of the chest near the neck. It is further alleged that appellant Muhammad Ashraf and Muhammad Amin took positions with their respective weapons i.e. Kalashnikov and 8 m.m. Rifle and threatened that whosoever will come forward he will also be killed. In the meanwhile second shot was fired by Abdul Rashid with his .12 bore gun which also hit the complainant's son Muhammad Azam deceased on the neck and on the left side of the shoulder on the back side, as such he fell down and succumbed to his injuries instantaneously. F.I.R.
Of the incident (Exh. PC/1) was registered at Police Station Safdarabad, Sheikhupura. Investigating Officer P.W. Ghulam Asghar, S.H.O. Proceeded to place of incident fromwhere he took into possession blood-stained earth vide recovery memo. (Exh. PA) dated 4th June 1993. It was sent to Chemical Examiner and Serologist, both of them vide reports (Ddis. PK and PL) respectively opined that the articles sent to them were stained with human blood. It may be noted that investigation of the case conducted by local police revealed that co-accused Amin and Afzal as well as Abdul Rashid and Ashraf are innocent, therefore, their names were placed in column No.2 whereas appellant Sarfaraz alias Sappi was sent up to face the trial. On this complainant Ahmad Khan filed a direct complaint before the trial Court i.e. Judge, Special Court No.III, Suppression of Terrorist Activities, Lahore Division, Lahore. The complaint so filed by him, however, was dismissed on February 14, 1994 for want of jurisdiction. But this order was set aside by Lahore High Court and the complaint was sent back to trial Court for proceeding on merits. Accordingly complaint was registered being Complaint No.10 of 1995 and vide order dated February 7, 1995 learned trial Court ordered consolidation of the complaint as well as State case. Thus, on account of filing of complaint besides appellants and acquitted accused were also summoned to face the trial. All the accused denied the charge readover to them on April 11, 1995 and claimed to be tried.
3. The prosecution adduced the evidence of P.W. Dr. Muhammad Modassar who produced post- mortem report Exh.PE. As per its contents following injuries were present on the dead body of the deceased Muhammad Azam:-- "(1) 3 penetrating wounds with blackening and tattooing around the wound margin measuring 1 c.m. x 1 c.m. At the left side of the neck mid-part close and below of the left chin in an area of 3 c.m. x 3 c.m.
(2) Wound of exit at the right side of the neck midpart.
(3) 3 penetrating wounds on the back of the chest right-side each measuring, 1 c.m. Diameter--1st penetrating wound at upper of back of right chest, 3 c.m. From the mid-line to the right 2nd penetrating wound 2 c.m. Below the Ist one- 3rd penetrating wound at the back of right mid-chest 4 c.m. From the 2nd one.
(4) Wound of exit at the tops front of the right upper chest at the and above the clavicle.
(5) 3 penetrating wounds on the front and outer and back of the left shoulder-joint.
' Mid-line incision given from strum to the lower abdomen. One pellet was found on the pecterrlis major muscle of the right front of the chest traversing from back to front.
' One pellet was found in the upper left chest traversing behind the trachea and disrupting the blood vessels of the left side of the neck.
' One pellet was found on the upper left chest' below the clavicle traversing from the left lung.
' Pellets sealed, signed and handed over to the Police.
' Fracture of the right side of 5th and 6th ribs was found on the back of the chest.
OPINION ' In my opinion the injuries on the neck by the fire-arm weapon had disrupted the vascular channels leading to hypovolemic shock, neurogenic shock. The injuries on the back of the chest had punctured by the injuries at the left shoulder made the lungs infarction through the track.
Whole of the injuries collectively were sufficient to cause haemorrhage shock cardio vascular compromise leading to cardio vascular and respiratory failure leading to death of the person."
4. In addition to medical evidence prosecution led ocular evidence of P.Ws. Ahmad Khan, Sakhawat Hussain being the eye-witnesses of the incident and P.Ws. Muhammad Khurshid, Muhammad Riaz, Abdul Majid, Ghulam Murtaza, Muhammad Hayat, Ghularn Asghar were also examined. The accused facing trial were examined under section 342, Cr.P.C. None of them opted to give statement on oath under section 340(2), Cr.P.C. However, 5 defence witnesses namely, Sharafat Ali, Jafar Hussain, Muhammad Nawaz, Saifullah and Muhammad Ashiq were produced by the appellants to establish that P.W. Ahmad Khan is not a trustworthy witness because he had concealed material facts from the Court. On completion of trial vide its impugned judgment, dated 28th November, 1995 learned trial Court convicted and sentenced Muhammad Sarfaraz alias Sappi and Abdul Rashid appellants under section 302/34, P.P.C. To death and also to pay Rs.1,00,000 each as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default in payment of compensation they were ordered to suffer imprisonment for a period of 6 months each. As far as appellant Muhammad Ashraf is concerned he was awarded sentence of imprisonment for life under section 302/34, P.P.C. As also to pay Rs.50,000 as compensation under section 544-A, Cr.P.C., to the legal heirs of the deceased and for non-payment of this amount they were further directed to undergo six months' S.I. It may be noted that orders were also issued to recover the amount of compensation from all the accused as land revenue under section 544- A(2), Cr.P.C. As far as accused Muhammad Amin and Muhammad Afzal are concerned they were acquitted of the charge.
5. Appellants preferred appeal before Lahore High Court being Appeal No.799 of 1995 which was dismissed on February 12, 1997.
6. Learned counsel for appellants argued that P.W. Ahmad Khan complainant (father of deceased Muhammad Azam) has disqualified himself to be a trustworthy witness as he gave a false statement in the Court with regard to conduct of his deceased son Muhammad Azam (deceased).
According to him he was a desperate criminal person because criminal cases vide F.I.R. (Exh.
DW1/A) No.81 of 1993 dated 13-2-1993 Police Station B Division, District Sheikhupura, under section 302/324/148/149/188, P.P.C. As well as vide Rapat No.23 dated 5-6-1993 Exh.D.W. 2/B registered at Police Station Saddar, Farooqabad and vide F.I.R. No.126 dated 14-4-1989 under section 307/323/34, P.P.C. Police Station Safdarabad as well as F.I.R. No.136 dated 16-6-1992 under section 13/20 of Arms Ordinance, 1965 Police Station Safdarabad and another F.I.R. No.208 dated 27th October, 1990 under section 302/148/109, P.P.C. As well as F.I.R. No.153 dated 4th July, 1991 under section 216, P.P.C. And F.I.R. No.42 dated 21st February, 1991 under section 302/109/148/149, P.P.C. Being Exhs. D.W.4/A, B, C, D and E respectively at Police Station Ahmadpur (Mandi Dhabansingh) were registered against him.
But when the witness was confronted with these documents he denied that these cases were not registered against his son. Similarly he deposed falsely that his son was in service of Punjab Reserve Police 2-1/2 or 3 years prior to the incident whereas actually he has been dismissed from service on 10th September, 1991 vide dismissal order 'Exh.DB. Therefore, he cannot be considered to be trustworthy person and his evidence for holding the appellants guilty for commission of the offence under the principle of Islamic dispensation of justice is not believable.
7. On our query learned counsel frankly conceded that P.W. 2 was not responsible for the deeds and acts of his deceased son Muhammad Azam because the latter being an independent person was liable for his own omissions and commissions. Thus, we are of the opinion that he cannot be held as a false witness. So far present incident is concerned all these facts would have no reflection on the incriminating parts of his testimony which he has furnished to prove the offence charged against appellants i.e. Commission of murder of deceased Muhammad Azam. This aspect of the case can be examined from another angle i.e. Standard of evidence under Islamic dispensation of justice can only be taken into consideration for proving the guilt where the accused has to be punished for the offence pertaining to Hudood or Qisas. But in the cases pertaining to Tazir standard of Islamic Qanun-e-Shahadat will not be applied. In this behalf reference to section 304, P.P.C. May be made which envisages that proof of Qatl-i-Amd liable to Qisas shall be in any of the forms namely if the accused makes before the Court competent to try the offence a voluntary and true confession of the commission of the offence or by the evidence as provided in Article 17 of Qanun-e-Shahadat Order, 1984. Reference in this behalf may be made to the case of Riaz Ahmad v. State (PLD 1999 SC 105).. Because in the instant case sentence of death has not been awarded to appellants Sarfaraz alias Sappi and Abdul Rashid of Qisas in terms of section 302(a), P.P.C., therefore, contention putforth by the learned counsel needs no further discussion.
8. Learned counsel for appellants further argued that P.W.1 Ahmad Khan is the father of deceased Muhammad Azam who has previous enmity with the appellants party on account of murder of Latif father of convict Sarfaraz alias Sappi, therefore, his testimony being of a interested witness is not worthy of acceptance. To elaborate his argument he contended that (except medical evidence) there is no other material to seek corroboration to his statement to ascertain whether he is telling truth or not. As far as medical evidence is concerned it is in conflict to the ocular testimony, therefore, learned High Court as well as trial Court were not right in believing the statement of this witness against appellants.
9. To counter his arguments learned counsel for complainant Mr. Malik Saeed Hassan pointed out that P.W. 1 Ahmad Khan though is the father of the deceased Muhammad Azam but he has no personal reasons to involve the appellants in the commission of offence.- Besides it, his testimony gets strong corroboration from the contents of F.I.R. Exh. PC/1 which was lodged promptly.
According to him medical evidence is not at variance to ocular evidence of P.W. 2 and P.W.
3. Learned counsel further advancing his case pointed out that as far as P.W.3 Sakhawat Hussain is concerned he is an independent witness of the incident and he had strongly supported the version of P.W. Ahmad Khan and there is absolutely no reason to disbelieve-the testimony of this witness.
According to him during cross-examination of both the witnesses i.e. P.Ws. Ahmad Khan and Sakhawat Hussain no material questions were put to them to shake intrinsic value of their evidence. Therefore, testimony of both these witnesses being consistent, coherent and trustworthy has rightly been believed by the learned High Court as well as trial Court.
10. We have carefully examined the F.I.R. Exh.PC/1, testimony of P.Ws. Ahmad Khan and Sakhawat Hussain alongwith other material produced by prosecution i.e. Medical evidence, reports of Chemical Examiner and Serologist Exhs. PK and PL as well as judgment, dated 28th November, 1995 passed by learned Special Court (trial Court) and the impugned judgment of learned High Court. In the most precise manner it is to be noted that in F.I.R. Exh. PC/1 it is mentioned that Muhammad Afzal (acquitted accused) gave proverbial Lalkara and stated to appellant Sarfaraz alias Sappi that "murderer of your father is going empty-handed today, he should not go unescaped". On showing positive response to command of Muhammad Afzal accused Sarfaraz alias Sappi opened fire with .12 bore gun which hit on the back and back side shoulder of Muhammad Azam. At this stage complainant and his companions stepped ahead to save him but appellant Ashraf and Amin (acquitted accused) pointing out their fire-arms towards them threatened that if they will come forward they will also be killed. In the meanwhile second fire was made by Abdul Rashid appellant with his .12 bore gun which hit on the neck and back side of the left shoulder of the son of the complainant and he fell down.
' P.W. Ahmad Khan in his attempt on oath deposed that Muhammad Afzal accused exhorted Sarfaraz his co-accused that murderer of his father was proceeding, he should not be spared alive.
Sarfaraz accused fired shot with his gun which hit on the right shoulder and back of his son Muhammad Azain deceased. He alongwith his companions tried to save his son. Ashraf and Amin accused threatened them that if they will come near they would also be killed. Abdul Rashid accused also fired with his gun which hit on the neck and left shoulder of his son Muhammad Azam deceased who fell down.
' Likewise P.W.3 Sakhawat Hussain in his Court statement on oath deposed that Muhammad Afzal shouted a Lalkara that the murderer of his father was going empty-handed, he should not be spared alive. The first shot was fired by Sarfaraz accused which hit on the left shoulder and back side of Azam deceased. Ahmad Khan, Intisar and he (the witness) tried to step forward, Ashraf and Amin pointed their weapons at them and threatened that they would be killed. The second shot was fired by Abdul Rashid with .12 bore gun which hit on the left shoulder, back side and neck of Azam deceased. Azam died at the spot.
' In the cross-examination of both the P.Ws. i.e. Ahmad Khan and Sakhawat Hussain theft above version was not shaken at all inasmuch as concerning the incriminating portion of their testimonies there was no sufficient impeachment. Resultantly we have to form a positive opinion that incriminating portion of the evidence is consistent, coherent, trustworthy as well as natural i.e. Free from any exaggerations. However, we may mention here that if in cross-examination intrinsic value of incriminating evidence of a witness has not been shaken his statement cannot be discarded for minor contradictions etc. Reference may be made to the case of Mushtaq alias Shaman v. The State (PLD 1995 SC 46).
11. Now turning towards the objection of the learned counsel for the appellants that the evidence of P.W. 2 is not worthy of credence as he is an interested witness. In this behalf principle of law enunciated by this Court from time to time is that merely for the reason that a witness is an interested one, his testimony will not be discarded per se for this reason but for safe administration of justice Courts are required to apply the rule of caution by seeking corroboration to the statement of a so-called interested witness on its material parts from other admissible evidence.
Reference in this behalf may be made to Iqbal alias Bhalla and two others v. The State (12494 SCMR 1) and Abdul Ghafoor v. The State (2000 SCM R 919). Thus, in view of the dictum laid down by this Court from time to time discussing evidentiary value of interested witnesses in criminal cases we are persuaded to hold that unless it has not been brought on record by the defence that the involvement of accused in the case is on account of ulterior motives coupled with mala fides to ensure his conviction, evidence .So furnished by such witness cannot be discarded. In this context it is important to add that truthfulness or falsehood of a prosecution witness can be verified by making reference to other incriminating material available on record which may be in the shape of oral testimonies of co-witnesses of the incident or recovery of crime empties if they had wedded with the crime weapons used in commission of the offence and recovery has been made in accordance with law and it also connects the accused with the commission of the offence, promptly lodging report of incident, circumstantial evidence etc. It has been time and again emphasized by this Court that for safe administration of justice the Court seized with the matter may rely upon the testimony of interested witness and to satisfy its conscious firstly close scrutiny of the prosecution evidence keeping in view the attending circumstances must be undertaken and thereafter may look for independent corroboration to the testimony of interested witness and if the prosecution fulfils these tests then it should be accepted to saddle the accused with criminal liability. However, facts vary from case to case and the Court comes across to such a situation where except the evidence of a witness who is interested in the prosecution of the case either being close relative of the complainant or on account of some previous animosity between the parties is desirous that the accused must be punished adequately and there is absolutely no corroborative evidence available on record, therefore, in such a unique situation the responsibility of the Court increases to double and it may accept the evidence of solitary witness alone if it is trustworthy. As far as verification of the statement of a witness being trustworthy is concerned it depends upon appreciation of evidence by the Court with its clear and honest conscience.
12. As far as present incident is concerned there is no doubt that P.W. 2 Ahmad Khan is the father of Muhammad Azam, therefore, he is interested that the culprit who has done away to death to his son must be punished according to law. If we have to believe his statement alone then of course we would have to apply above tests. But besides statement of P.W. 2 there is evidence of P.W.
Sakhawat Hussain who is not related to either of the party and his testimony cannot be disbelieved merely for the allegations that he belongs to the tribe of P.W.
2. We have plaeed three documents in juxtaposition i.e. F.I.R. Exh. PC and the statement of P.W.
Ahmad and P.W. 3 Sakhawat Hussain. On their careful examination we have persuaded ourselves to hold that there is consistency in the prosecution case. Both the witnesses are trustworthy and they have no false reasons to involve the accused in the commission of the offence.
13. Learned counsel also contended that Intisar Hussain was an independent witness but he was not produced by the prosecution at the trial, therefore, inference may be drawn that if he would have appeared in the Court he might have disclosed true picture of the incident. The argument so advanced by the learned counsel carry no weight firstly for the reason that law governing administration of criminal justice has not cast a duty upon the prosecution to produce all the witnesses who have seen the incident because it is the quality of the evidence but not quantity which matters. Of course this object can be achieved by recording evidence of even one witness if he is trustworthy. Reference in this behalf may be made to the case of Allah Baldish v. Shammi and others (PLD 1980 SC 225). Secondly the defence is always at liberty to summon a prosecution witness who has been given up with an object to unearth true facts before the Court. Thus, on account of non-producing P.W. Intisar Hussain no adverse inference can be drawn against the prosecution for above reasons.
14. Learned counsel placed much emphasis on so-called contradictions in the ocular testimony of both the eye-witnesses as well as the medical evidence. As per his contention P.W. Dr. Muhammad Modassar had noticed blackening and tattooing around injury No.1 meaning thereby that Muhammad Azam deceased was fired upon from short distance whereas P.W. Ahmad Khan stated that assailant was at a distance of 7-1/2 Karams i.e. According to learned counsel about 42 feet.
Similarly P.W. 3 Sakhawat Hussain in cross-examination disclosed that first shot hit the deceased from 7-1/2 feet or 7-1/2 Karams. The second shot was also fired hitting the deceased almost from the same distance at a variation of about 3 or 4 feet. As such according to learned counsel there is a doubt in the prosecution case as per variation in ocular and medical evidence, therefore, benefit of the same may be extended to the accused persons.
' On the other hand learned counsel for the complainant and State argued that minor contradictions as are being pointed out in the ocular and medical evidence have never been considered fatal to disbelieve the prosecution case. In addition to it Malik Saeed Hassan, learned counsel for the complainant argued that in fact in the case in hand there is no contradiction in the medical and ocular evidence because contradictions would have been if deceased Muhammad Azam has received incised wounds in place of fire-arm wounds as per the case put forward by the prosecution.
' We have attended to this aspect of the case very carefully keeping in view the medical evidence as well as ocular testimony of both the witnesses' i.e. P.W. 2 Ahmad Khan and P.W. 3 Sakhawat Hussain. Undoubtedly as per statement of P.W. Dr. Muhammad Modassar there were blackening and tatooing around the wounds noticed by him on the dead body of the deceased but to resolve this controversy we have referred to the opinion given by him wherein he stated in unambiguous terms that all the injuries were ante-mortem in nature and inflicted by fire-arm weapon. Thus no doubt can be allowed to prevail about not causing injuries with the fire-arm and as far as the contradictions being pointed out by the learned counsel for appellants would not be fatal for the reason that humanly it is not possible to measure exact distance in an incident where indiscriminate firing is going on. Here we also invoke another principle of law namely that medical and expert evidence is produced in support of ocular evidence by the prosecution in the criminal trial or in other words it can be said that such evidence is termed to be of confirmatory nature.
Therefore, if there is any variation both in ocular and medical evidence the latter will not overweigh the former type of evidence if otherwise it is coherent and trustworthy. Reliance in support of this principle is placed on the case of Muhammad Hanif v. The State (PLD 1993 SC 895).
15. Learned counsel next contended with great vehemence that as admittedly there was an old enmity between the accused and complainant party because deceased Muhammad Azam has committed murder of Latif father of appellant Sarfaraz alias Sappi but subsequently parties compromised the matter, therefore, on this reason false involvement of appellants cannot be overruled. But in our opinion this argument is not available to him because P.W. Ahmad Khan will have no reason to falsely involve the appellants in the commission of the offence firstly for the reason that he himself is the beneficiary of the compromise because he was also involved in that case. Therefore, how it is possible that he would falsely involve his benefactors in the commission of offence. Secondly it was nobody's case either before the trial Court or learned High Court or even before this Court that P.W. Ahmad Khan had substituted the appellants with real culprits who have committed murder of his son Muhammad Azam. Thirdly phenomena of substitution is very rare.
Thus, for these reasons we are inclined to overrule the contention of the learned counsel.
16. Learned counsel then contended that same set of prosecution evidence has been disbelieved against acquitted accused Muhammad Amin and Muhammad Afzal, therefore, discarded evidence cannot be made basis for saddling the appellants for the commission of offence in absence of strong corroborative evidence on material particulars. Learned counsel for complainant, argued that ocular evidence furnished by prosecution was divisible in view of principle of assessing the evidence namely sifting the chaff out of grain. According to him statement of P.W. Ahmad Khan and P.W. Sakhawat Hussain has provided strong corroboration to each other, medical evidence, happening of the incident as it has been narrated by the prosecution and lodging of F.I.R. With promptitude. To support his contention he placed reliance on 1999 SCM R 803.
' The proposition of law in criminal administration of justice namely whether a common set of ocular account can be used for recording acquittal and conviction against the accused persons who were charged for the same commission of offence is an over-worked proposition. Originally the opinion of the Court was that if a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in uno falsus in omnibus but subsequently this view was changed and it was held that principle enshirned in this maxim would not be applicable and testimony of a witness will be acceptable against one set of accused though same has been rejected against another set of accused facing same trial. However, for safe administration of justice a condition has been imposed namely that the evidence which is going to be believed to be true must get independent corroboration on material particulars meaning thereby that to find out credible evidence principle of appreciation of evidence i.e. Sifting chaff out of grain was introduced as it has been held in the cases of Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC 502), Tawaib Khan and another v. The State (PLD 1970 SC 13), Bakka v. The State (1977 SCM R 150), Khairu and another v. The State 1981 SCM R 1136; Ziaullah v. The State (1993 SCM R 155), Ghulam Sikandar v.
Mamaraz Khan (PLD 1985 SC 11), Shahid Raza and another v. State (1992 SCM R 1647), Irshad Ahmad and others v. State and others (PLD 1996 SC 138) and Ahmad Khan v. The State (1990 SCM R 803).
Thus, applying above test of appreciation of evidence to instant case we are inclined to hold that the evidence furnished by P.W. Ahmad Khan and P.W. Salchawat Hussain has been rightly considered to be true coupled with strong corroboration available on record.
' However, at this stage we consider it proper to deal with the case of appellant Muhammad Ashraf.
Learned counsel for the complainant and State were called upon to explain as to whether his case is not at par with the case of Muhammad Amin acquitted accused because statedly they both were armed with lethal weapon i.e. 8 m.m. Rifle and kalashnikov respectively but they did not fire a single bullet, therefore, for such reason whether Muhammad Ashraf is not entitled for the benefit of doubt. Before recording answer of both learned counsel we'would like to observe at this very juncture that extending benefit of doubt to accused is his right and withholding it is non-exercise of jurisdiction for which the Court owes a duty to explain as to why accused is not being given the benefit of doubt if it is oozing from the case in which accused is involved. There is no cavil with the proposition at all that except in the cases where by means of a special enactment onus to prove the guilt or otherwise has been placed upon the accused ordinarily under the general law it is the duty of the prosecution to establish its case independently without any shadow of doubt as held in the case of Safdar Ali v. The Crown (PLD 1953 FC 93). Because the case in hand was tried under ordinary law, therefore, the burden to establish the guilt was upon the prosecution. Learned counsel could not answer satisfactorily as to why in view of the acquittal of Muhammad Amin the benefit of doubt should not be extended to appellant Muhammad Ashraf as well.
17. Learned counsel for appellants also contended that appellant Sarfraz alias Sappi was 15/16 years old at the time of commission of offence, therefore, he being a minor was under the influence of his paternal uncle i.e. Appellants Nos.2 and 3 as well as acquitted accused Muhammad Amin and allegedly he opened first fire upon deceased Muhammad Azam under their directions to kill deceased Muhammad Azam as he has killed his father, therefore, without prejudice to his pleas referred to hereinabove convict Muhammad Sarfraz alias Sappi has made out a case for lesser punishment To elucidate his viewpoint reference was made to the precedents reported in 1985 SCM R 423, 1992 SCM R 357, 1993 SCM R 155 and 2377. Learned counsel for the complainant countering arguments of appellants' counsel contended that this Court had been considering in past question of lesser punishment where accused has committed the crime under the influence of his elders but now the view has been changed by enunciating that for this plea as a matter of right concession in the quantum of sentence cannot be claimed. Reference was made to the judgment reported in 1999 SCM R 2722.
' We have anxiously attended to this angle of the case to find out whether in presence of developed form of the principle of granting concession to accused who has committed offence under the influence of his elder as reported in 1999 SC:MR 2722. We subscribe to our view which has been taken in this judgment and reaffirm that the principle of considering the quantum of sentence against an accused who has allegedly committed offence under the influence of his elder is to be invoked sparingly keeping in view the fact that minor accused may not be used by his elders to achieve their designed motives for the commission of the crime knowing that ultimately if crime is established then the lesser sentence will be awarded to minor accused particularly in capital offences simultaneously saving the actual accused behind the shield of this principle from death penalty being normal sentence prescribed under the law and secondly commission of offence under such circumstances may not encourage to the contemporaries of the accused for indulging in heinous offences on the plea of having committed crime under the influence of his/their elders.
Therefore, while examining the question of quantum of sentence in the cases of accused who have committed the offence under the influence of others it has to be borne in mind that as a matter of right such concession cannot be asked for by him. But in the instant case we are not inclined to consider this argument of the learned counsel because there is another legal point which engaged our attention, namely that convict Sarfaraz alias Sappi was minor on the day when incident took place i.e. 4th June, 1993 because as per record while examining him on 26th September, 1995 under section 342, Cr.P.C. His age has been shown 17 years as stated by him and 20 years by appearance as has been observed by the Court meaning thereby that on the date of incident convict was either of approximately 15 years old as per his own statement or 17 years old as per appearance of the convict noted by the learned trial Court. Under section 298, P.P.C. "adult" means a person who has attained being male the age of 18 years. Thus, without any fear of doubt safely it can be held that when the crime was committed convict was not adult and if still there is any doubt regarding the discrepancy about his age its benefit will go to convict as it has been decided in the case of Sohail Iqbal- v. The State (1993 SCM R 2377). Thus, being a minor he was not liable to Qisas for the commission of offence of Qatli-i-Amd as such was not liable to death penalty under section 302, P.P.C.
' We are mindful of the fact that convict Sarfaraz alias Sappi cannot be considered to be a.
Principal accused because apparently he committed the offence under the influence of his elders and simultaneously convict Abdul Rashid has also fully participated in the commission of offence, therefore, question for consideration would be that if the principal accused is being awarded lesser punishment whether co-accused who has also fully associated with him deserves any leniency as far as question of sentence is concerned. This proposition has to be answered in negative on account of proviso to section 306 which lays down that where a person liable to Qisas associates with himself in the commission of the offence a person not liable to Qisas with the intention of saving himself from Qisas, he shall not be exempted from Qisas. This provision of law has also supported our observation made hereinabove. The principle enshrined under section 306(a), P.P.C.
Also gets support from the judgment of this Court reported in 1999 SCM R 1469 (Waris Ali alias Dulli and others v. The. State). As per facts of this case three persons namely Waris Ali, Muhammad Khan and Khurshid Ali faced trial for the offence under section 302, P.P.C. In view of material available on record trial Court awarded death penalty to both the former convicts whereas Khurshid was sentenced to imprisonment for life. Grievance of Waris Ali and Muhammad Khan before this Court was that their case is not distinguishable from the case of Khurshid Ali, therefore, they are also liable for imprisonment for life. On this argument it was opined that when the cases of two accused facing trial under the same circumstances is distinguishable then there could be variation in the quantum of sentence. Relevant para. For convenience is reproduced hereinbelow:- - "There is no denying the fact that prosecution has not ascribed any motive to appellants Waris Ali and Muhammad Khan for causing murders of Muhammad Mushtaq and Ghulam Abbas. Obviously involvement of above appellants and co-convict Khurshid Ahmed is on independent footings as manifestly reflected from ocular evidence which has been firmly believed. The guilt of the appellants has been duly proved on the acceptance of evidence as observed in the impugned judgment as well as leave granting order dated 12-9-1995. Therefore, on the dictum laid in 1971 SCM R 368 (Ghuncha Gul v. State), the requirement of motive and its discovery as regards above two appellants is totally irrelevant and unwarranted. This Court in case of Fazal Ghafoor v. State (1993 SCMR 1136) whreby ocular evidence has been deemed to be sufficient to establish the guilt of offenders whereby enactment of punishment by the High Court converting into death penalty was confirmed and validated without resorting to effect about uncertainty of motive."
' Applying the above test on the case of Sarfaraz alias Sappi qua appellant Abdul Rashid we have no option but to hold that as far as former being minor on the day when crime was committed is concerned cannot be held liable for Qisas, therefore, he cannot be awarded death penalty.
However for this distinction appellant Abdul Rashid will not be exempted from Qisas in view of proviso to section 306, P.P.C. Therefore, it is held that on account of distinctions or distinguishable events either on law as well as on facts Court is empowered to award distinct sentences to more than one accused facing trial in the cases where normal penalty is of death.
18. Adverting to the case of Muhammad Ashraf appellant as it has been discussed hereinabove we are of the opinion that his case is not distinct from the case of co-accused Muhammaad Amin, therefore, in our opinion sentence awarded to him is not sustainable.
' In view of above, appeal to the extent of appellant Abdul Rashid is dismissed. However, while maintaining the conviction of Sarfaraz alias Sappi (appellant) is altered from section 302, P.P.C. To section 308, P.P.C. And he is awarded 14 years' R.I. With Diyat at the rate which was prevailing at the time of commission of offence i.e. 4-6-1993. Benefit of the period during which he remained in jail as undertrial prisoner under section 382-B, Cr.P.C. Is also extended to him.
' As far as appellant Muhammad Ashraf is concerned, he is acquitted of the charge.*He shall be released forthwith if not wanted in any other case.
…and 35 more citing cases