' MIAN SHAKIRULLAH JAN, J.---Muhammad Tariq, aged about 28/29 years, resident of Ladarmang Police Station Khalabat Towneship Haripur, was charged under section 302, P.P.C. For the murder of Muhammad Fayyaz (aged about 22/23 years) resident of village Pamba, brother-in-law of Muhammad Tariq appellant, and was tried, convicted and sentenced to death under section 302(b), P.P.C. Against which order of conviction he has filed the instant appeal. A Murder Reference under section 374, Cr.P.C. Has also been sent by the Sessions Judge for confirmation of this Court and both the matter shall be disposed of by this common judgment.
2. The brief resume of the case as revealed from the statement of P.W.10 Sikandar, paternal uncle of the deceased and lodger of F.I.R. Is that on 10-10-1996 at about 7/7-30 a.m. While he was present in his house in village pamba he received an information that his nephew Muhammad Fayyaz was lying murdered in the house of accused Tariq in village Ladarmang. His brother Sultan, father of the deceased, was not present in the village as he has gone to Haripur. He proceeded to village Ladarmang where he saw the deceased lying murdered in the Court-yard of the house of accused Tariq. After which he went to P.P. Where he lodged the report Exh.P.A./1. The night proceeding to the occurrence accused Tariq came to the house of deceased and due to late hours he took deceased with him to his village where he murdered deceased in his house during the night time. The motive was stated to be known to his brother. After the conclusion of the investigation the challan was put in Court and the accused-appellant was tried. Twelve witnesses were examined by the prosecution. The accused was also examined under section 342, Cr.P.C. However, he declined to give statement under section 340(2), Cr.P.C.
3. Dr. Maqsood Ahmed S.M.O. Civil Hospital Khalabat Township was examined as P.W.S. He conducted the post-mortem examination of the deceased and found the following injuries:-
(1) Fire-arm entry wound in the right ear auditory meiatus size 1/2" circular in shape.
(2) Fire-arm exit wound on neck left side nearly 2" below the left ear size 1" circular in shape. Brain alongwith his membranes and spinal card injured. Stomach intact and empty."
' Skul bone on both side fractured. In the opinion of the doctor the death was caused because of injuries to vital organs like brain and spinal cord due to fire-arm and which causes severe heamorrhage and shock leading to death.
4. Malik -Abdul Latif was examined as P.W.1. He, While returning home after offering 'Fajar' prayer heard the report of fire shot and after a while a boy came to his house and informed him that a dead body was lying in the house of Ghulam Qadir (father of the accused Tariq). He then proceeded to the spot and noticed the dead body of deceased Muhammad Fayyaz lying there. He sent a messenger to village Pamba, the village of deceased, and on which information Sikandar P.W.10 alongwith some other person reached the spot. He 'reported the matter and after a while the Investigating Officer also came to the spot and inspected the same. In his presence the Investigating Officer took into his possession blood-stained earth Exh.P.1, an empty of .12 bore Exh.P.2 and sealed the same. The Investigating Officer has also taken into his possession two live cartridges Exh.P.3 and Exh.P.4, also recovered one rifle of .12 bore Exh.P.5 and sealed all the articles into a parcel.
5. P.W.2 Muhammad Arshad FC is a marginal witness to the recovery memo. Vide which the Investigating Officer took into his possession the clothes of the deceased.
6. P.W.3 Bashir Hussain and P.W.4 Shaukat who both are police officials and they have stated that on the preceding night of occurrence at about 7.45 p.m. While they were on 'gasht' the two persons i,e, the accused Tariq and deceased Muhammad Fayyaz came across them. They were stopped, checked and after satisfaction they were left free. At the time of checking Tariq accused was having an S.B. Shot gun with him.
7. P.W.6 Masood Ali A.S.I. Has partially investigated the case. After the registration of the case he inspected the spot, prepared the site plan and recovered the blood-stained earth, one empty of .12 bore, .12 bore shot gun alongwith two live cartridges, another shot gun of .12 bore from the box. He sealed all the articles into a parcel. He has also prepared the injury sheet and the inquest report of the deceased while the dead body was lying on the spot and despatched the same to the mortuary for post-mortem examination. He sent the shot guns and the empties so recovered from the spot to the Arms Expert. He recorded the statements of the witnesses. He then handed over the investigation to the S.H.O.
8. P.W.7 Mst. Quresh Bibi has stated that she was engaged to one Khan Afsar, brother of accused Tariq, who after two years of engagement was murdered by his brother Banaras. Afterwards she was married to accused Tariq and they remained as husband and wife for a period of four years at Karachi. As a result of wedlock a male child was also born. The relations between the spouses became strained due to the mal-treatment of Tariq accused. Tariq took her to the house of her parents at village Pamba and left her there and sent divorced papers to her. She filed a suit for the maintenance and recovery of dowery articles. Tariq accused after getting knowledge of the suit against him came to her house (parents) on 5-10-1996 a few days before the occurrence and threatened the family members to kill them if the suit was not withdrawn. In pursuant to such threat she withdrew her suit. Accused Tariq then asked the hands of Mst. Yasmeen, younger sister of Quresh Bibi who was previously engaged to Banaras, other brother of Tariq accused, and who had already been murdered. It may be stated here that the said Banaras had already been charged for the murder of his another brother Khan Afsar. His this demand, for .The hands of Mst.
Yasmeen, was refused by them (deceased family). On 9-10-1996, the preceding night of occurrence, accused Tariq again visited their house and at that time he was armed with a gun.
However, her father was not present in his house and that he had gone to Haripur. Tariq accused repeated his demand for the hands of Mst. Yasmeen but the same was refused by Muhammad Fayyat deceased. Tariq accused remained in the house of deceased till dark and then he asked Fayyaz deceased to accompany his on the pretext that it was being too late. In the next morning they got the information about the murder of their brother Muhammad Fayyaz deceased.
9. P.W.8 Sultan, father of the deceased has stated that her daughter Mst. Quresh Bibi was married to Tariq about 5/6 years ago and after which they lived in Karachi for about four years. Thereafter, the accused Tariq left Mst. Quresh Bibi alongwith his child in his (Sultan's) hour and on following day the divorce papers were sent to her. After which Mst. Quresh Bibi filed a suit for maintenance etc. But due to the threats given by the accused Tariq the same was withdrawn. He produced photo copy of Talaq Nama (Exh.P.W.8/1) and Iqarar Nama (Exh.P.W.8/2). He also repeated the same version, as given by Mst. Quresh Bibi, with regard to his (accused) demand for the hands of his other daughter Mst. Yasmeen Bibi and their, including the deceased, refusal.
10. P.W.9 Sardar Khan S.H.O. Partially investigated the case. He also visited the spot and recorded the statements of some of the witnesses. He took into his possession the blood-stained shirt of the deceased and sent the blood-stained earth and shirt of the deceased to the Forensic Science Laboratory and placed on record the result of the laboratory as Exh.P.W.9/2. He has also applied through S.P. Haripur to S.S.P. Saddar Karachi for the arrest of the accused Tariq who was an employee of the Police Department at Karachi. The accused was arrested by him on 1-11-1996 after the rejection of his pre-arrest bail. He has also taken into possession two arms licenses Exh.P.C. And Exh.P.D. Taken out by accused from the box which were in the names of his father and brother. He also obtained the daily diary report registered at serial No,25, dated 17-6-1996 of Police Station Karachi which reveals that. Muhammad Tariq No,5662 was on duty at the bungalow of Advocate- General and was found absent on 4-10-1996 to 17-10-1996 from his duty without permission or leave. After the completion of investigation complete challan was submitted. He has stated that the distance between the two villages i,e, Pamba, village of the deceased and Ladarmang, village of accused, is 3 kilometres.
11. P.W.11 Muhammad Arshad is the marginal witness to the pointation memo. Exh.P.W.9/3 and pointed the place where at the time of occurrence he was present and in which respect an addition was made of point No,6 in the site plan Exh.P.B.
12. P.W.12 Abdul Rehman has stated that he alongwith Abdul Waris has gone to village Ladarmang in connection with the 'chehlum' ceremony of the wife of Dr. Abdul Rehman. On 9-10-1996 they remained their at night and at the morning time when they woke-up and were preceded to the mosque for offering 'Fajar' prayer they heard the report of a fire-shot from the house of Tariq accused and in their attempt to see what happended they saw accused Tariq running out of his house towards the road side. They also saw the dead body of Muhammad Fayyaz deceased lying in the courtyard of the accused.
13. We have heard the learned counsel for the appellant, the State counsel and the complainant counsel and have gone through the evidence on record.
14. The learned counsel for the appellant has argued that it is an unseen occurrence and the so- called last seen evidence coupled with the alleged circumstantial evidence are not sufficient by themselves to bring home guilt to the accused and particularly when the medical evidence is-not in line with the other circumstantial evidence and also the statements of some of the witnesses i,e, P.W.12 which was recorded under section 161, Cr.P.C. With sufficient delay.
15. While repelling the arguments of the learned counsel for the appellant the learned counsel for the complainant as well as the State have argued that the last seen evidence of Mst. Quresh Bibi supported by other independent evidence i,e, statements of P.W.3 Bashir Hussain and P.W.4 Shaukat and coupled with the recovery of dead body from the courtyard of the accused and then his (appellant's) disappearance from his house by themselves are sufficient to bring home guilt to the appellant beyond any shadow of doubt and his conviction and sentence was rightly recorded by the trial Court.
16. The last seen evidence as has been furnished by the three witnesses namely Mst. Quresh Bibi (P.W.7), Bashir Hussain (P.W.3) and Shaukat (P.W.4) the latter both are police officials. According to Mst. Quresh Bibi accused Tariq was her husband, who married her after the death of Khan Afsar as who was murdered by his another brother Banaras and to whom (Khan Afsar) she has already been engaged. The said Banaras has also married her (Mst. Quresh Bibi) other sister Mst. Yaseem but she became a widow as Banaras was also murdered. Tariq, after the murder of his brother Banaras started taking interest in Mst. Yasmeen and thus, he divorced Mst. Quresh Bibi, may be for the reason that in the subsisting of one wife a person under the Muhammadan Law cannot marry another sister of his wife. Mst. Quresh Bibi after receiving divorce papers from accused instituted a suit for maintenance against him but the same was withdrawn as her family members were threatened by the accused. In this connection accused visited the house of parents of Mst. Quresh Bibi on 15-10-1996 duly armed with a .12 bore shot gun. It was on 9-10-1996, on the night preceding the occurrence that accused again visited the house of the deceased and at this time he was also armed with the gun. Accused asked for the hands of Mst. Yasmeen which was refused by Fayyaz deceased. Accused stayed there till late and ultimately he asked deceased Fayyaz to accompany him to his village due to late hours. Pamba village of the deceased is at a distance of about 3 kilometres from Ladarmang, the village of the deceased, the distance has been stated by P.W.9, Sardar Khan Investigating Officer. On their way they (accused and the deceased) while proceeding from village Pamba to village Ladarmang Checked by the police officials (P.W.3 and P.W.4) who were on 'gasht' duty on 9-10-1996 at about 7.45 p.m. The relevant portion of the statement of P.W.3 is reproduced as below:-- "During the days of occurrence I was posted as DFC PP, Swabi Maira. On 9-10-1996 at about 7-45 p.m. I, alongwith police party were on 'gasht' near Ladarmang. In the meanwhile accused Tariq alongwith deceased Muhammad Fayyaz came across us. Accused Tariq was holding .12 bore shot gun. We stopped them and enquired about their whereabouts. Accused Tariq disclosed his identity as policeman by producing his identity card. He also produced the licence of 12 bore gun. They were left free after satisfaction. They disclosed that they were going to village Ladarmang."
' To the same effect is the evidence of P.W.4 Shaukat and the relevant portion of his Examination- in-Chief is reproduced below:-- "I, alongwith the police party were on usual gasht near Ladarmang accused Tariq and deceased Muhammad Fayyaz met us near village Ladarmang. At that time accused Tariq was holding a S.B.
Shot gun. It was loaded. We inquired about the whereabouts on which accused Tariq had disclosed his identity as policeman by producing an identity cards. He also produced a copy of licence of the weapon. After satisfaction they were left free to go."
' In cross-examination he has stated that:-- "Voluntarily stated that after the rejection of pre-arrest bail of the accused I saw him in the P.P. And then I correctly identified him that he is the person who met us during our gasht on the night in the company of deceased near Ladarmang."
17. According to P.W.1 Abdul Latif resident and Malik of Ladarmang, village of accused, has stated as under:-- "On the day of occurrence after offering Fajar prayer when I was going to my home I heard the report of fire-shot. In my house I took breakfast. A boy came to my house who informed me that a dead body is lying in the house of Ghulam Qadir. I then proceeded to the spot where I noticed dead body of deceased Muhammad Fayyaz lying there."
' It may be stated here that Ghulam Qadir is father of appellant and the house where he (appellant) also residing.
18. At the relevant days the sun set time was about 5.48 p.m, while the sun-rise time was 6.12 a.m.
From the statements of P.W. Mst. Quresh Bibi and P.W.3 and P.W .4 it is quite clear that both the accused and the deceased left the house of deceased situated in village Pamba for the house of accused situated at village Ladarmang at late hours on the eventful night and the dead body of the deceased was found in the house of appellant early in the morning on the next day with a version of P.W.1 that he heard the report of fire-short after 'Fajar prayer time. Thus, the last seen factum as given from the unimpeachable evidence of three witnesses i,e, Quresh Bibi (P.W.7), Bashir Hussain (P.W.3) and Shaukat (P.W.4) and the latter two cannot be alleged to be interested witnesses or inimical towards the appellant in any way.
19. The Investigating Officer inspected the spot where the dead body of the deceased was lying, prepared the site plan and according to which the courtyard of the house of the appellant is not bounded by any boundary wall and the dead body was found at point No,1 in front of the room of the accused and which is at a distance of about 25 paces from the room. The blood-stained earth was also recovered from the spot and both the bloodstained earth and the blood-stained shirt of the deceased were sent to the Forensic Science Laboratory for the report of the Chemical Examiner and according to which report both were stained with human blood of the same group. These blood-stained articles were also taken into possession in the presence of P,W.1 Malik Abdul Latif.
20. P.W.6 Masood Ali A.S.I. Has recovered in addition to the bloodstained earth, one empty of .12 bore P.2 from the spot. During the house search of the accused he has also recovered .12 bore shot gun Exh.P.3 and Exh.P.5 and two live cartridges P.4. All these were sealed into a parcel in die presence of the marginal witnesses. This witness has also sent to empty recovered from the spot alongwith two .12 bore shot guns recovered during the house , search of the appellant to the Forensic Science Laboratory for compargon and according to the said report the empty so recovered has been fired with the recovered gun bearing No,34381. Subsequently the two licenses one in the name of the father of the appellant while the other in the name of the brother of the appellant of the abovementioned shot guns were recovered at the instance of the appellant by P.W.9 Sardar Khan.
Thus, from the evidence it transpires that the appellant was seen duly armed with a short-gun on 9-101996 when he visited the house of the deceased and he was also seen armed with the said shot gun when he was checked by the two police officials (P.W.3 and P.W.4) while they were on 'gasht' at 7.45 p.m. On 9-10-1996, when they left the house of the deceased for the house of the appellant and the recovery of the empty of the shot gun with a positive report of the arms expert to have been fired with a shot gun recovered from the house of the appellant with a licence in the names of father and brother of the appellant provide a strong piece of circumstantial evidence that it was the appellant responsible for the firing with the said shot gun during this intervening period i,e, from 7-45 p.m. Till morning when the deceased was fired at as the fire shot was heard by P.W.1 Malik Abdul Latif and when the same were recovered by the Investigating Officer in the presence of disinterested marginal witnesses.
21. The appellant though in the Police of Sindh Province but was found absent from duty from 4-10- 1996 to 17-10-1996, as the occurrence has taken place in between the night 9/10-10-1996 and in this respect he neither denied to be a police official of Sind Police nor he denied his absence in the relevant days from his duty and in this respect the evidence furnished by the prosecution was not shattered.
22. The appellant belongs to a family, where one brother is killed by another and who (the murderer brother) lateron also met the same fate being murdered coupled with his demeanour/conduct when after the divorce of his wife or at least strained relations with her he was not hesitating to visit the house of her parents where she lived and armed with a shot gun by threatening them to withdraw the suit filed against his for maintenance and also asked for the hands of another sister of his wife and the refusal of which on the part of the deceased led to the present incident.
23. The motive in this case cannot be doubted either it may be the strained relations of the appellant with Mst. Quresh Bibi his wife, or his desire to marry her another sister and the refusal of which has become a cause for the commission of the offence and in this respect any objection on the part of the defence that motive as described in the F.I.R. By paternal uncle of the deceased i,e, to be strained relations between the spouses, that is the appellant and Mst. Quresh Bibi, or the refusal of Fayyaz deceased to accept the desire of the appellant to marry Mst. Yasmin to him would make no difference as both the motives are one and the same or two parts of one motive.
Even otherwise the paternal uncle/lodger of F.I.R. May be not in the know of the desire of the accused for the hands of Yasmin Bibi.
24. Similarly, any criticism on the part of the defence over the delay in recording of statements of P.W.3 and P.W.4 the Investigating Officer is not such a one to discredit these independent and disinterested witnesses to depose against the appellant of his checking on the preceding night as the same version seems to be most natural and the checking of the appellant being armed and deceased while they were on 'gasht' was a part of their duty. However, such an objection of the defence i,e, delay in recording of the statements of P.W.12 Abdur Rehman has got some weight as he being related to the deceased and with no explanation of not coming forward and to depose in time instead of coming on the scene too late and his this evidence was rightly disbelieved by the trial Court.
25. According to the medical examination the dimension of the entry wound on 1/2" and while exit is 1" and which according to the defence counsel is not possible with a shot gun either from a close range or with some distance as in the former case that would cause a smaller entry wound when a pellet would hit the target. First the entry wound has been caused on a part of the body i,e, right ear auidortary meiatus whereby from outwardly an aperture with a small dimension may be seen as a larger one and similarly the exit wound may not be correctly measured. The cortridges of .12 bore shot gun contain pellets of different number and different sizes even sometimes only with single pellet, lead material. According to Parikh's Textbook of Medical Jurisprudence and Toxicology, 1989 (page 264) lead pellets are generally used as projectiles in case of shot guns. Their size may vary from single spherical ball, a rifled slug, to buck shot, vis, LG, SG, etc, to shot size, 2, 4, 6, etc. Even otherwise now-a-days medical officer pay little attention to the examination of the body and particularly to the dimension of the entry and exit wounds and the same are noted down whatever has been stated by the person/attendent carrying out the physical examination. In view of the overwhelming evidence both last seen and circumstantial evidence, the carrying of shot gun by the appellant sometime before the occurrence, the recoveries of empties matched with the shot gun recovered from the house of the appellant licensed in the name of his brother this objection and recovery of dead body from the house of the accused, whether the injuries can be caused with such a dimension with the fire shots of the shot gun would be of little consequence. In case "Abdur Rehman v. The State" reported as 1998 SCM R 1778 the importance of medical evidence and the fact that it to be ignored have been expressed in the following words:-- "We may notice that medical evidence merely provides corroboration or support to substantive or circumstantial evidence.
' It cannot be deemed sufficient for proving accusation against the person charged for an offence.
Acceptability of medical evidence obviously depend upon grounds or cogency of reasonings on which the opinion/report is based. Certainly, the Courts seized of jurisdiction are competent to ignore medical opinion for lack of satisfactory explanation, and may place reliance on the ocular version or other circumstantial on the ocular version or other circumstantial evidence when found it considerably convincing."
26. Now after discussing the evidence on record whether the same would be sufficient to bring home guilt to the appellant in the absence of any direct ocular version.
27. After going through the case law on the point, the last judgment of the Hon'ble Supreme Court "Khurshid v. The State" reported in PLD 1996 SC 305 and that would amply led support to the prosecution plea whereby after discussing number of judgments in the majority view it was held:-- "However, the High Court upon appeal set aside the above conviction. This Court allowed the acquittal appeal and convicted the respondent under section 304, part-I, .P.P.C. And awarded seven years R.I. Hamood-ur-Rehman, J. (as . His lordship then was) commented upon as follows on the question as to how a Court should examine the circumstantial evidence in order to ascertain the factum, whether the charge has been proved or not. Even in a case of this kind where there is no direct evidence to show as to in what precise manner the victim came to be killed the Court has yet to discharge its onerous duty of determining whether the death was caused by the felonious act of some other person and, if so, what offence, if any, has been committed by such a person. It is not sufficient in such a case to say that since there is no direct evidence to connect any one with the felonious act the guilt cannot be fixed. It is precisely in such cases that I conceive it to be duty of the Court to examine the probabilities in the light of the indirect evidence of the injuries on the deceased, the nature and conditions of the place where the incident took place the articles found there, the motive for the crime and the other surrounding circumstances proved. This is what I now propose to do".
' In the said judgment it was further held as under:-- "(10)From the above reports, it is evident that the circumstances, namely, that the deceased was last seen with the accused persons is a reliable piece of evidence if corroborated by other pieces of circumstantial evidence which are interlinked and which clearly connect the accused persons with the commission of the offence charged with. In the present case, the quantum and the nature of circumstantial evidence is far better than the cases referred to hereinabove. In the case of the State v. Manzoor Ahmad (supra), this Court has even set aside an acquittal judgment of the High Court though the conviction was founded on the circumstantial evidence which included inter alia the fact that the deceased was last seen with the accused person.
(11) I may observe that while appraising the circumstantial evidence the Court is to keep in mind the location of the incident, if the place of incident is a place where no witness was available and the accused had the exclusive knowledge about the incident, the simplicity denial on the part of the accused will not be sufficient to nullify the circumstantial evidence of the nature which directly connects him with the commission of the offence charged with. But he should raise a plea of the nature which on being tested on the touch stone of probabilities warrants a reasonable hypothesis of the accused innocence. I may further observe that in criminal cases though the Courts are supposed to follow the well-settled principles of criminal jurisprudence, namely, that an accused person is presumed to be innocent, that the prosecution is to prove a criminal case against an accused person beyond reasonable doubt and in case two views are possible; the view which favours the accused person, should be preferred; and that all benefit of doubts should be extended to the accused, but, at the same time, the Courts should also take notice of the changing circumstances of the present days. Even in cases where eye-witnesses are available they refuse to appear as witnesses in support of prosecution case; either because of fear or on account of being won over by the accused party. The Court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the Investigation Agency/prosecution, provided that same have not prejudiced the accused in the fair trial. I may also state that the people are loosing faith in the criminal judicial system for the reason, that in most of the criminal cases the criminals get away without being punished on technicalities."
28. Hence it can be concluded that the evidence brought on record excludes any reasonable hypothesis of the appellant innocence and thus, we hold him guilty of the offence.
29. Now the question of quantum of sentence requires some consideration. In this case there is no ocular evidence at all which may help the Court in arriving at the conclusion that as to what' else, in view of existence of material as already stated, has happened immediately to the occurrence particularly when they both have spent the night together and nothing happened till morning and which may be a mitigating circumstance for awarding a lesser penalty short of death penalty.
30. Even in case of doubt with regard to the existing of mitigating circumstances then the benefit of the same be given to the appellant on the principle underlying the concept of benefit of doubt in addition to the consideration of question of guilt or otherwise. In support of this proposition reliance can be placed on "Ansar Ahmed Khan Barki v. The State (1993 SCM R 1660) wherein it was held as under:-- "(7) After careful examination of the judgment of the two Courts below, we do not feel inclined to subscribe to the reasoning of the High Court. The appellant was not bound to prove to the hilt his plea of defence and had merely to show the circumstances suggestive of reasonably possibility that there might be some truth in his allegation"
' 1980 SCM R 859. It has been held in some cases that the principle underlying the concept of doubt can in addition to the consideration of question of guilt br otherwise, be pressed also in matter of sentence...
' Muhammad Tahir Khan v. The State (1983 SCM R 1169) is, the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death".
31. Resultantly, we partly allow the appeal of, the appellant and while maintaining his conviction modify the death sentence to that of life imprisonment under section 302(b), P.P.C. With a compensation of Rs,50,000 to be paid by the appellant to the legal heirs of the deceased and in default he will suffer further six months R.I. The compensation if not paid shall be recovered as arrears of land revenue. The benefit of section 382-B, Cr.P.C. Is also extended to the appellant. The murder reference is answered in the negative.