2023 PLP 1537 (YLR)

SADIQ MAHMUD KHURRAM, J.

Muhammad Ayaz son of Muhammad Akram (convict) was tried by the learned Additional Sessions Judge, Ahmed Pur East in case FIR No. 287 of 2017 dated 12.09.2017 registered at Police Station City Ahmed Pur East, District Bahawalpur in respect of offences under sections 302 and 325, P.P.C. for committing the Qatl-i-Amd of Muhammad Bilal son of Muhammad Tariq (deceased). The learned trial court vide judgment dated 06.03.2019, convicted Muhammad Ayaz son of Muhammad Akram (convict) and sentenced him as infra: Muhammad Ayaz son of Muhammad Akram:- i) Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Bilal son of Muhammad Tariq (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default whereof, the convict was directed to undergo further six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii) Rigorous Imprisonment for one year under section 325, P.P.C. and directed to pay fine of Rs.25000/- and in default of payment of fine to further undergo simple imprisonment of three months.

2. Feeling aggrieved, Muhammad Ayaz son of Muhammad Akram (convict) lodged the Criminal Appeal No.138-J of 2019 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.06 of 2019 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Ayaz son of Muhammad Akram. We intend to dispose of the Criminal Appeal No. 138-J of 2019 and Murder Reference No.06 of 2019 through this single judgment.

3. Precisely the necessary facts of the prosecution case, as narrated by Muhammad Tariq (PW-1), the complainant of the FIR, are as under:- "On 12.09.2017 at 02:30 Pm, I returned home from my shop while Muhammad Aslam and Muhammad Fayyaz PWs were standing in the street. I gave money to Muhammad Bilal to buy some articles from the shop of Muhammad Ayyaz, accused present in the court. My son Bilal did not return. I along with Muhammad Aslam and Muhammad Fayyaz went to the shop of Muhammadd Ayyaz and when we reached there, I saw that accused Ayyaz had given repeated knife blows on the left, right and front of neck and abdomen and other parts of the body of my son. I along with PWs tried to stop the accused who threatened us that if any one came near him, he would be done to death. Meanwhile, accused Ayyaz gave knife blow on his (Ayaz) neck and after becoming injured he fled away inside of his shop from back door. I attended my injured son who succumbed to the injuries at the spot. The motive was that Rs:20/- prize was won by my son which he demanded from the accused who had murdered him. After some time the police reached the spot and inspected the dead body and 1 submitted the application (Ex.P.A) which contains my signatures as (Ex.P.A/1) upon which the FIR of this case was registered. The dead body was then shifted to the hospital where autopsy was conducted. After post mortem examination, the deed body of my son was handed over to me, vide receipt (Ex.P.B). On 12.09.2017 the dead body of my son was buried."

4. After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the accused was sent to face trial. The learned trial court framed the charge against the accused on 30.11.2017, to which the accused pleaded not guilty and claimed trial.

5. The prosecution in order to prove its case, got statements of as many as eleven witnesses recorded. The ocular account of the case was furnished by Muhammad Tariq (PW-1) and Muhammad Fayyaz (PW-2). Muhammad Naeem Ahmad (PW-3) stated that on 12.09.2017, the Investigating Officer of the case took into possession the blood stained cotton from the place of occurrence, pair of sandals (P-3 and P-4) of the deceased , arrested the appellant from his house and took into possession Churri (P-5) present in the hand of the appellant. Saeed Ahmad 163/HC (PW-4) stated that on 12.09.2017 he escorted the dead body of the deceased to the hospital and also received the last worn clothes of the deceased from the Medical Officer. Dr. Muhammad Asim Shareef (PW-7) stated that on 17.09.2017 he examined the appellant, observed an injury present on the right clavicle of the appellant and issued the Medico Legal Examination Certificate (Exh.PQ). Zulfigar Ali, ASI (PW-8) stated that on 12.09.2017 he recorded the formal FIR (Exh.PR). Muhammad Nadeem Akhtar (PW-9) prepared the scaled site plan of the place of occurrence (Exh.PS). Muhammad Arif 985/HC (PW-11) stated that on 12.09.2017, Ghulam Mustafa, SI (PW-10) handed over to him one sealed parcel said to contain the blood stained cotton and seven envelopes and on 18.09.2017 he handed over all the sealed parcels and envelopes to Ghulam Mustafa, SI (PW-10) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Shabbir, SI (PW-5) investigated the case from 12.09.2017 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Ghulam Mustafa, SI (PW-10) investigated the case from 12.09.2017 till 07.11.2018, arrested the appellant in this case on 12.09.2017 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

6. The prosecution also got Dr. Abdul Jabbar Bhatti (PW-6) examined, who on 12.09.2017 was posted as Medical Officer at the THQ Hospital, Ahmed Pur East and on the same conducted the post mortem examination of the dead body of the deceased. Dr. Abdul Jabbar Bhatti (PW-6) after conducting the post mortem examination of the dead body of the deceased namely Muhammad Bilal son of Muhammad Tariq observed and opined as under:- "Injury No.1 An incised wound measured 23 x 05 cm cutting muscles carotid artery, veins trachea and esophagus reached to cervical vertebra in noted. Advised X-ray. Injury No.2 Two incised wound measuring 10x 5 cm, 18x 5 cm both cutting muscles carotid artery veins and trachea on right side of neck, Advise X-ray. Injury No. 3 A wound measured 7 cm x 3.8 cm anterior side of neck adjacent to Hyoid bone, superiorly cutting right laterally trachea is noted. Advised X-ray. Injury No. 4 Same as injury No.

1. Injury Nos.5 and 6 An incised would (sic) measuring 4 cm x 1.5 cm x exposed bone dorso lateral side of left elbow joint and other would measured 5 cm x 2 cm x bone deep at dorsum of left hand is noted. Injury No. 7 An incised wound measured 9 cm x 4.5 blow left costal margin with ruptured cavity from which intestine protruded/coming out Injury Nos. 8, 9 and 10 Two incised would (sic) (i) 2 cm x 1 cm x skin deep on dorsum of right index finger, (ii) 1.8 cm x 1 cm skin deep on dorsum of right middle finger is noted and (iii) 1.5 x 8 cm x skin deep on dorsum of right little finger is also noted. Injury No.11 An incised wound measuring 15 cm x 1 cm x-skin deep on left lumber region of back is noted. Injury No. 12 An incised wound measuring 8 cm x 1 cm x skin deep on upper lateral quadrant of left buttock is noted: Advised X ray pelvic AP view.

FINAL OPINION; After complete internal and external body examination all of the wounds are by sharp object. Ante mortem and homicidal in nature and injury Nos. 1 and 2 are main cause of death These injuries cutting beck muscle, carotid arteries, veins, trachea and esophagus and all the contents till cervical vertebra These injures are enough to cause death in general course of life."

7. On 25.02.2019, the learned Assistant District Public Prosecutor gave up prosecution witnesses namely Muhammad Aslam and Muhammad Ashiq as being unnecessary and closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PU) and the report of Punjab Forensic Science Agency, Lahore (Exh.PV).

8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Ayaz son of Muhammad Akram under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Muhammad Ayaz son of Muhammad Akram opted not to get himself examined under section 340(2), Cr.P.C. and did not adduce any evidence in his defence.

9. On the conclusion of the trial, the learned Additional Sessions Judge, Ahmed Pur East, convicted and sentenced the appellant as referred to above.

10. The contention of the learned counsel for the appellant is that the whole case is fabricated and false. The learned counsel for the appellant argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellant further contended that the statements of Muhammad Tariq (PW-1) and Muhammad Fayyaz (PW-2) were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt.

11. On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Muhammad Tariq (PW-1) and Muhammad Fayyaz (PW-2). The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recovery of the weapon and the reports of Punjab Forensic Science Agency, Lahore (Exh.PU and Exh.PV) also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of appeal.

12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance have perused the record and evidence recorded during the trial.

13. The whole prosecution case revolves around the statements of the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2). The deceased namely Muhammad Bilal was the son of Muhammad Tariq (PW-1). With regard to the prosecution witness namely Muhammad Fayaz (PW-2) we have noted that he was not even related to Muhammad Tariq (PW-1 ), the complainant of the case, and even otherwise had no enmity with the appellant namely Muhammad Ayaz which could have motivated him to depose against the appellant. The independent status of the prosecution witness Muhammad Fayaz (PW-2) was admitted even by the defence and not even a suggestion was made that he was deposing against the appellant due to some grudge or enmity. Additionally, we have also noted that both the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2) were residents of near the place of occurrence. We have perused the scaled site plan of the place of occurrence (Exh.PS) as prepared by Muhammad Nadeem Akhtar (PW-9) and the rough site plan of the place of occurrence (Exh.PT) as prepared by Ghulam Mustafa, SI (PW-10) and have noted that the house of the prosecution witness namely Muhammad Tariq (PW-1) has been marked in the same and according to the said site plans (Exh.PT and Exh.PS), Muhammad Tariq (PW-1) had a wall sharing with the house of the appellant, inside the shop of which house the occurrence took place. Furthermore, we have also noted that both the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2) convincingly explained their arrival at the place of occurrence. Both the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2) explained that they proceeded to the place of occurrence when Muhammad Bilal (deceased) did not return from the shop of the appellant, where the deceased had gone or making a purchase. Muhammad Tariq (PW-1) during cross-examination explained as under:-- "I asked to the deceased that he went to the shop of accused Ayaz in present in court for the purchase of tea. The deceased did not return for purchasing the tea for ten minutes. The PWs Aslam and Fiaz met me in the street at 02:30 p.m, I along with PWs Fiaz and Aslam went to the shop of the accused." (emphasis supplied) Muhammad Fayaz (PW-2) also explained during cross-examination as under:-- "Stated that I came in the street at 02:00 PM. I and PWS Aslam were present when Muhammad Tariq came there. The complainant gave money to the deceased in our presence. At that time the deceased was playing in the street with other children. Complainant Tariq gave money to the deceased and asked to him that he went to the shop of Muhammad Ayaz and to purchased tea, the deceased did not returned back for ten minutes. I along with PWS Aslam and complainant Tariq were present in the street at least 200-feet away from the place of occurrence. I along with PWS Aslam and complainant Tariq reached at the shop together." (emphasis supplied) The above referred portions of the cross-examination conducted upon the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2) clearly establishes the fact that they were attracted to the place of occurrence when the deceased did not return from the shop of the appellant even after ten minutes and immediately arrived at the place of occurrence as they were residents of the same area, close to the place of occurrence and witnessed the same. The prosecution witnesses namely Muhammad Tariq (PW-l) and Muhammad Fayaz (PW-2) also explained that they were standing just near to the place of occurrence, at a distance of about 100 feet, talking with each other and thereafter reached at the place of occurrence. As mentioned above, the place of occurrence was the shop of the appellant, which shop had been constructed within the premises of the house of the appellant and the prosecution witness namely Muhammad Tariq (PW-1) was the next door neighbor of the appellant whereas the prosecution witness namely Muhammad Fayaz (PW-2) was the resident of the same area, therefore, their arrival at the place of occurrence , at the time of occurrence was natural. Reference is made to the judgment in the case titled as Zakir Hussain v. The State (2008 SCMR 222) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- "The place of occurrence being situated close to the residential houses of the parties, the presence of the eye-witnesses at the barber shop would not be challengeable." Reference is also made to the judgment in the case titled as "Muhammad Aslam v. The State" (2012 SCMR 593) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- "Both the eye-witnesses are residents of the same village where the incident took place and their presence at the spot has been established beyond any shadow of doubt." Reference is also made to the judgment in the case titled as "Abid Ali v. The State" (2017 SCMR 662) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- "The occurrence in this case had taken place early in the morning in the month of May at a time when the day had already broken. The appellant was not only an immediate neighbour of Fateh Bibi complainant (PW10) but he was also related to the complainant party as the complainant was the appellant's aunt. Mst. Fateh Bibi complainant was the mother of Manazir Ali deceased and she resided in the very house in which the occurrence had taken place and the time of occurrence was such that availability of the complainant in her house at that time was nothing but natural and expected." Both the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2) explained their presence at the place of occurrence categorically. We have noted that both the prosecution witnesses namely Muhammad Tariq (PW- l) and Muhammad Fayaz (PW-2), in a very natural and forthright manner, narrated the occurrence and gave each and every detail of the same. Furthermore, in the incident in issue, the weapon had been used from very close proximity and, thus, it would not have been difficult for the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2) to identify the present appellant, who was already known to them being their neighbor. Both the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2) explained that they were present at a distance of about ten feet from the shop of the appellant, when they had witnessed the occurrence. Muhammad Tariq (PW-1) during cross-examination stated as under:- "We saw the occurrence when we were standing outside the shop near the "Thalli" of the shop." Muhammad Fayaz (PW-2) during cross-examination stated as under:-- " We saw the occurrence at 8-feet away from the place of occurrence." We have scrutinized the evidence as given by the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2) and find that they proved themselves to be truthful witnesses and implicit reliance can be placed upon their statements. There is no evidence on record that the said witnesses namely Muhammad Tariq (PW-1) and Muhammad. Fayaz (PW-2) were motivated by any enmity to depose against the appellant. As mentioned above, Muhammad Tariq (PW-1) was the father of Muhammad Bilal (deceased), whereas Muhammad Fayaz (PW-2) was not related in any manner either to the deceased namely Muhammad Bilal or Muhammad Tariq (PW-1) and no reason existed prior to the occurrence which could have interested Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2) to get the appellant involved in this occurrence falsely and let off the real accused. Both the prosecution witnesses namely Muhammad Tariq (PW 1) and Muhammad Fayaz (PW-2) were subjected to cross-examination but the defence failed to make cracks in their deposition and the genuineness of their statements has been proved. Moreover during the cross-examination the sequence of the occurrence was brought on record and both the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayyaz (PW-2) remained consistent. Hence, in view of the above facts, the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2) by no stretch of imagination, can be declared as not being present at the place of occurrence. The presence of the witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2) at the place of occurrence, at the time of occurrence, stands proved beyond a shadow of doubt. Moreover, there is no such material available on record which would indicate substitution of the appellant in the case with the real culprit. Substitution is a phenomenon of a rare manifestation because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of "Irshad Ahmad and others v. The State and others" (PLD 1996 SC 138). The appellant namely Muhammad Ayaz remained unable to establish any animosity of the complainant or the police for his false involvement in the case. Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2) in a forthright manner, held the appellant namely Muhammad Shabbir responsible for the murder of Muhammad Bilal (deceased).

14. As mentioned above, the occurrence in question had admittedly taken place in broad daylight at about 02.30 p.m., inside the shop of the appellant and the same, therefore, could not have gone un-witnessed nor could have the culprit escaped unobserved. As it was a broad daylight occurrence and because of the fact that the appellant was known to both the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2), the question of his misidentification does not arise. Furthermore, the appellant was also arrested on the day of occurrence from his own house, within the premises of which the shop, where the occurrence had taken place, had been constructed. All the prosecution witnesses namely Muhammad Tariq (PW-1), Muhammad Fayaz (PW-2), Muhammad Shabbir SI (PW-5) and Ghulam Mustafa SI (PW-10) were cross-examined with the regard to the circumstances of the arrest of the appellant on the day of occurrence and both the prosecution witnesses remained consistent that the appellant had been arrested from the kitchen of his house, the same house in whose premises the shop, where the occurrence took place, had been constructed. Muhammad Tariq (PW-1) during cross-examination stated as under:- "After threating the PWS, the accused within five minutes ran away to his house along with knife (Churry). He rushed to his house after the occurrence. Accused arrested from his house, when accused appre-hended the police from the kitchen of his house. He was holding churry in his hand. When the accused was apprehended the dead body of the deceased was present there.". Muhammad Fayaz (PW-2) during cross-examination also stated as under:- "After committing injuries to the deceased, the accused ran away forthwith. Accused ran away along with knife (churry) Accused ran away towards his house by holding churry. Accused was arrested inside the house. Accused apprehended when he holding churry in his hand." Muhammad Shabbir, SI (PW-5) in his statement before the learned trial court explained as under:- "On the same day, the accused hide himself in the Kitchen of his house, after broken the door of the kitchen the accused was apprehended at that time a churri (vegetable knife/churri) was recovered from his possession, the same was taken in to possession by homicide branch vide recovery memo." Ghulam Mustafa, SI (PW-10), the Investigating Officer of the case, during cross-examination stated as under:-- "The accused was apprehended at the same day from his home" It has also been noted by us that the blood stained cotton was also taken into possession from the place of occurrence, determined to be the shop of the appellant and according to the report of the Punjab Forensic Science Agency, Lahore (Exh.PV), the blood found present on the blood stained cotton was of human origin. During the course of trial, it was not even suggested that the occurrence had not taken place at the place of occurrence being the shop of the appellant. We have also noted that the appellant, while getting his statement recorded at the time of framing of charge on 30.11.2017, made a frank admission that he had given knife blows to the deceased when he came to realize that the deceased was engaging in shoplifting from his shop. The occurrence took place inside the shop of the appellant, the dead body of the deceased was also laying in the said shop at the time of arrival of the Investigating Officer of the case and the appellant was also arrested from the kitchen of the same house where the shop had been constructed, therefore, the prosecution has successfully discharge the onus placed upon it to prove the guilt of the appellant, however, the appellant failed to explain all the above mentioned circumstances.

15. We have also appreciated the fact that the occurrence in this case took place at about 02.30 p.m. on 12.09.2017 and was reported by the complainant namely Muhammad Tariq (PW-1) to the police with promptitude. Muhammad Tariq (PW-1) his written application (Exh.P.A) to Muhammad Shabbir, SI (PW-5) at 3.30 p.m. on the same day. On the basis of the written application (Exh.PA) of the complainant namely Muhammad Tariq (PW-1), the formal FIR (Exh.PR) was registered at 4.20 p.m. by Zulfiqar Ali, ASI (PW-8) at the Police Station. Thus, it is apparent that the written application (Exh.PA) of the complainant namely Muhammad Tariq (PW-1), was submitted with noteworthy swiftness, especially when Muhammad Tariq (PW-1), the complainant of the case, had suffered the trauma of the death his young son, aged about ten years, at the hands of the appellant. Muhammad Tariq (PW-1), not only named the appellant, but also mentioned each and every minor as well as material fact of the incident in his written application (Exh. PA), which of course excludes the possibility of deliberation or consultation regarding false implication of the appellant in the instant case. The salierit features of the occurrence have been elaborately explained in the written application (Exh. PA). The promptitude in reporting the matter to the police also corroborates the case of the prosecution as against the appellant. This promptitude in reporting the matter to the police establishes the presence of the witnesses at the place of occurrence, at the time of occurrence and supports their narrative. In this regard, reference is made to the judgment in the case titled as "Muhammad Waris v. The State" (2008 SCMR 784) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- "The names of the said two eye-witnesses could not have been mentioned in such a promptly lodged F.I.R. if they had not been with the deceased persons at the time of their death." Reliance is also placed on the case of Muhammad Arshad v. The State (2020 SCMR 2025) wherein it has been held as under:- "There is no denial to this fact that the instant occurrence has taken place in broad daylight in which one person was done to death in a brutal manner whereas 02 women folk were given severe injuries. The crime report was lodged with promptitude, although the inter-se distance between the place of occurrence and the police station is 10-KM The facts and figures narrated above, rules out any possibility of deliberation and consultation. Further that there is only single accused nominated in the crime report which shows the fairness of the prosecution which normally is against the prevalent custom in our society." Reliance is also placed on the case of Noor Sultan and others v. The State (2021 SCMR 176) wherein it has been held as under:- "The instant occurrence has taken place on 28.02.2020 at 6.15 p.m. while the matter was reported to the police within 2.15 hours whereas inter-se distance between the place of occurrence and police station is 16 kilometers. Promptness in reporting the matter to the police reflect that there is no chance of any consultation or deliberation at the part of prosecution." Reliance is also placed on the case of "Shaheen Ijaz alias Babu v. The State" (2021 SCMR 500) wherein it has been held as under:- "...... ....petitioner's nomination in a broad daylight incident by resident witnesses hardly admits a space to entertain any hypothesis of mistaken identity or substitution. Prompt recourse to law straight at the police station excludes every possibility of deliberation or consultation." Reference is also made to the judgment in the case titled as "Muhammad Aslam v. The State" (2012 SCMR 593) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- "FIR in the present case was recorded with a promptitude and in such circumstances prosecution has been able to prove the case against the appellant beyond any shadow of doubt." During the course of the trial it was proved that the written application (Exh.PA) of Muhammad Tariq (PW-l), upon the basis of which the formal FIR (Exh.PR) was registered, was a genuine document and was made spontaneously, naturally and contained the true facts, devoid of any manipulation. Additionally, we have also noted that at the time of the preparation of the inquest report (Exh.PJ) the name of Muhammad Fayaz (PW-2) was mentioned in the column No.4 as well as at page 4 of the said inquest report (Exh.PJ) as being the person present near the dead body at the time of its preparation . It was also noted in the inquest report (Exh.PJ) that at the time of preparation of the same, the blood of the deceased was found to be in a fluid condition, clearly establishing the fact that the said inquest report (Exh.PJ) was prepared with promptitude, which inquest report also carried all the details of the occurrence as given by the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2).

16. The medical evidence produced by the prosecution in the case, proves that the deceased namely Muhammad Bilal had received the fatal injuries on the vital parts of his body and he succumbed to the said injuries caused by the appellant. The medical evidence fully supports the ocular account. During the course of cross-examination, the role of the appellant was brought on record further cementing the truthfulness of the statements of the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2). Muhammad Tariq (PW-1) during cross-examination was questioned with regard to the role of the appellant during the occurrence and she replied as under:- "We saw that the accused inflicted first injury on the left side of neck. The occurrence was took place within five munities (sic)." Muhammad Fayaz (PW-2) during cross-examination explained the role of the appellant during the occurrence as under:-- "The Accused inflicted 12 injurious on the body of the deceased. We try to save the deceased but accused threats us for dire consequences. The occurrence was completed within five minutes". (emphasis supplied) According to Dr. Abdul Jabbar Bhatti (PW-6), who conducted the post mortem examination of the dead body of the deceased namely Muhammad Bilal son of Muhammad Tariq, he observed an incised wound of the dimension of 23 cm x 05 cm, cutting the carotid artery, trachea and esophagus and observed two incised wounds measuring 10 cm x 5 cm and 18 cm x 5 cm, cutting the muscles, carotid artery, veins and trachea on right side of neck and observed another wound of the dimension of 7 cm x 3.8 cm present on the anterior side of the neck adjacent to Hyoid bone, cutting the right trachea and observed another incised wound measuring 4 cm x 1.5 cm present on the dorsal- lateral side of the left elbow joint and observed another wound of the dimension of 5 cm x 2 cm present on the dorsum of the left hand and observed an incised wound of the dimension of 9 cm x 4.5 present on the abdomen and observed an incised wound of the dimension of 2 cm x 1 cm present on dorsum of the right index finger and observed an incised wound of the dimension 1.8 cm x 1 cm present on dorsum of right middle finger and observed an incised wound of the dimension of 1.5 cm x 8 cm present on the dorsum of the right little finger and observed an incised wound of the dimension 15 cm x 1 cm present on the left lumber region of back and observed an incised wound of the dimension 8 cm x 1 cm present on upper lateral quadrant of left buttock. Dr. Abdul Jabbar Bhatti (PW-6) also opined that the deceased died due to the fact that he had suffered massive, deep cuts on his body which were sufficient in ordinary course of life to cause death. The appellant has been saddled with the responsibility of causing the said fatal injuries to the deceased namely Muhammad Bilal. In this manner the ocular account is fully verified by the medical evidence available on record. In view of the above discussion, it is ascertained and proved that the intent of the appellant was to cause death and that he is guilty of Qatl-i-Amd of Muhammad Bilal (deceased). The appellant, after the occurrence, attempted to commit suicide in view of the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2) and the said act of the appellant was also proved and corroborated by the statement of Dr. Muhammad Asim Sharif (PW-7). We have also noted that the appellant while getting his statement recorded at the time of framing of charge on 30.11.2017 made a blunt admission that he had attempted to take his own life after realizing what he had done.

17. Regarding the recovery of the Knife from the appellant namely Muhammad Ayaz son of Muhammad Akram, the same cannot be relied upon as the knife which had been used by the appellant to cause the death of the deceased, though taken into possession by the Investigating Officer of the case, however, was never produced before the learned trial court. Muhammad Shabbir, SI (PW-5) stated that a sealed parcel of the knife was prepared and handed over to Ghulam Mustafa, SI (PW-10) and similar was the statement of Ghulam Shabbir, SI (PW-10), however according to the statement of Muhammad Naeem Ahmad (PW-3), two different knives were recovered. Muhammad Naeem Ahmad (PW-3) in his statement before the learned trial court stated as under:-- "At the time of arrest of the accused blood stained churry was recovered from him. That churry was present in hand's of accused. The churry which was recovered from the hand of accuse it was first churry. The second churry was recovered from the house of the accused". It was also stated by Muhammad Naeem Ahmad (PW-3) that the Churri (P-5) recovered from the appellant had a yellow coloured handle. Muhammad Naeem Ahmad (PW-3) in his statement before the learned trial court stated as under:- "The police broke open the door, arrested him along with blood stained "CHURRI" which he was holding in his hand. The handle of the CHURRI was yellow in colour bearing monogram of KIWI. I.O. took into possession the blood stained "CHURRI" P.5, vide recovery memo." Contrary to the above statement, according to the report of Punjab Forensic Science Agency, Lahore (Exh.PV), the knife analyzed by Punjab Forensic Science Agency, Lahore had an orange coloured handle. It has been mentioned in the report of the Punjab Forensic Science Agency, Lahore (Exh.PV) as under:- "

7. A steel knife with orange colored handle." (emphasis supplied) In this manner, it is not clear as to out of the two knives used by the appellant during the occurrence, which knife was produced before the learned trial court and exhibited as an article and which knife was analyzed by the Punjab Forensic Science Agency, Lahore. We have also noted that one of the knives was also sent to the office of Punjab Forensic Science Agency, Lahore for the analysis of the finger prints and according to the report of Punjab Forensic Science Agency, Lahore (Exh.PU), the knife was processed for the development of latent prints, however no latent print was developed, therefore, no comparison was conducted with the finger and palm print of the appellant. Therefore, the recovery of the knife does not further the case of prosecution in any manner. In view of the above-mentioned facts, the alleged recovery of the knife is not proved and the same cannot be used as a circumstance against the appellant.

18. The motive of the occurrence, as mentioned in the written application (Exh.PA) of Muhammad Tariq (PW-1) was that the deceased had won a prize of Rs.20/- which when demanded by the deceased from the appellant, the appellant committed the occurrence. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. We have noted that both the prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2) while appearing before the learned trial court did not mention the above-mentioned motive of the occurrence and made no statements with regard to the motive before the learned trial court. Furthermore, no documentary evidence was brought on record to establish that the deceased had won a prize of Rs.20/- and the appellant, on being demanded the said prize, committed the murder of the deceased due to the said reason. The prosecution witnesses namely Muhammad Tariq (PW-1) and Muhammad Fayaz (PW-2), as mentioned above, did not make any statement before the learned trial court regarding the motive as mentioned in the written application (Exh.PA). Even in the written application (Exh.PA) it was not mentioned with any clarity that as to when the deceased had won the prize of Rs.20/- and as to when he had demanded the giving of the said prize from the appellant. Furthermore, during the course of investigation the Investigating Officer of the case did not collect any evidence in support of the motive of the occurrence as mentioned in the written application (Exh.PA). The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-Amd of the deceased namely Muhammad Bilal. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. The august Supreme Court of Pakistan has held in the case of "Muhammad Asif v. The State" (2008 SCMR 1001) as under: "Coming to motive, no independent witness was produced in whose presence the altercation had taken place between Shafi and appellant at one side and Mazhar Hussain deceased on the other side." So, this leads us to the conclusion that the prosecution remained unable to prove the motive as alleged.

19. We have disbelieved the evidence of prosecution qua the motive and recovery of the knives in this case. However, if the evidence of motive and recovery of the knives is excluded from consideration, even then there is sufficient incriminating evidence available on the record against the appellant namely Muhammad Ayaz son of Muhammad Akram to prove the case of prosecution against him. As discussed earlier, the prosecution case was fully proved through the evidence of the eye-witnesses namely Muhammad Tariq (P.W.1) and Muhammad Fayaz (PW-2). The said eye-witnesses stood the test of lengthy cross-examination, but their evidence could not be stunned. Their evidence is quite natural, straightforward and confidence inspiring. The ocular account of the prosecution as given by the abovementioned eye-witnesses is fully supported by the medical evidence furnished by Dr. Abdul Jabbar Bhatti (PW-6), therefore, we hold that the prosecution has proved its case against the appellant namely Muhammad Ayaz son of Muhammad Akram beyond the shadow of any doubt.

20. Now coming to the quantum of sentence, we have noted some mitigating circumstances in favour of the appellant namely Muhammad Ayaz son of Muhammad Akram, firstly, the evidence of recovery of the knives from the possession of the appellant namely Muhammad Ayaz son of Muhammad Akram has been disbelieved by us for the reason mentioned in Para No.17 of this judgment, secondly the prosecution had alleged a specific motive in this case but failed to prove the same. It is well recognized principle by now that the question of quantum of sentence requires utmost attention and thoughtfulness on the parts of the Courts. In this regard we respectfully refer the case of "Mir Muhammad alias Miro v. The State" (2009 SCMR 1188) wherein august Supreme Court has held as under:- "It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the parts of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence." The august Supreme Court of Pakistan has held in the case of "Ansar Ahmad Khan Barki v. The State and another" (1993 SCMR 1660), that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death. We are convinced that the appellant namely Muhammad Ayaz son of Muhammad Akram, in the peculiar circumstance of this case, deserves consideration to the extent of his sentence one out of two provided under section 302(b) of P.P.C. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence and elicited such a colossal retort from the appellant, which had resulted into the death of the deceased namely Muhammad Bilal son of Muhammad Tariq, therefore, in our view the death sentence awarded to the appellant is quite castigatory. It has been held in number of judgments of the august Supreme Court of Pakistan that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of the accused. While treating it a case of mitigation, we have fortified our view by a judgment of the august Supreme Court of Pakistan in the case of "Ahmad Nawaz and another v. The State" (2011 SCMR 593), wherein, at page 604, the Hon'ble apex Court of the country has been pleased to lay emphasis as under:-- "

10. The recent trend of the courts with regard to the awarding of penalty is evident from several precedents. In the case of Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111), it was held that "This is settled law that provisions of sections 306 to 308, P.P.C. attracts only in the cases of Qatl-i-amd liable to Qisas under section 302(A), P.P.C. and not in the cases in which sentence for Qatl-i-amd has been awarded as Tazir under section 302(b), P.P.C. The difference of punishment for Qatl-i-amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C. respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(b), P.P.C. and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-i-amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCMR 4), Faqir Ullah v. Khalil-uz-Zaman (1999 SCMR 2203), Muhammad Akram v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 338)". The august Supreme Court of Pakistan has held in the case of "Mst. Nazia Anwar v. The State and others" (2018 SCMR 911), while considering the penalty for an act of commission of Qatl-i-amd, as under :- "In these circumstances it is quite obvious to me that the motive asserted by the prosecution had remained utterly unproved. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder." We are also fortified in our view in this regard by the cases of "Nawab Ali v. The State" (2019 SCMR 2009), "Muhammad Akram alias Akrai v. The State" (2019 SCMR 610), "Iftikhar Mehmood and another v. Qaiser Iftikhar and others" (2011 SCMR 1165), "Muhammad Mumtaz v. The State and another" (2012 SCMR 267), "Muhammad Imran alias Asif v. The State" (2013 SCMR 782), "Sabir Hussain alias Sabri v. The State" (2013 SCMR 1554), "Zeeshan Afzal alias Shani and another v. The State and another" (2013 SCMR 1602), "Naveed alias Needu and others v. The State and others" (2014 SCMR 1464), "Muhammad Nadeem Waqas and another v. The State" (2014 SCMR 1658), "Muhammad Asif v. Muhammad Akhtar and others" (2016 SCMR 2035), "Qaddan and others v. The State" (2017 SCMR 148) and "Ghulam Murtaza v. The State" (2021 SCMR 149).

21. In the light of above discussion, the conviction of the appellant namely Muhammad Ayaz son of Muhammad Akram, as awarded by the learned trial Court through the abovementioned judgment, is maintained but the sentence of death awarded to the appellant namely Muhammad Ayaz son of Muhammad Akram under section 302(b), P.P.C. is altered to imprisonment for life. The compensation awarded by the learned trial Court under section 544-A of Cr.P.C. and sentence in default thereof are maintained and upheld. The conviction of the appellant namely Muhammad Ayaz son of Muhammad Akram under section 325, P.P.C. and the sentence awarded to him thereunder is maintained and upheld. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, is also extended to the appellant namely Muhammad Ayaz son of Muhammad Akram. All the sentences of the appellant namely Muhammad Ayaz son of Muhammad Akram are ordered to run concurrently. Consequently, with the above said modification in the sentence awarded to the appellant namely Muhammad Ayaz son of Muhammad Akram under section 302(b), P.P.C., Criminal Appeal No.138-J of 2019, is hereby dismissed.

22. Murder Reference No. 06 of 2019 is answered in Negative and the sentence of death awarded to Muhammad Ayaz son of Muhammad Akram, is Not Confirmed. JK/M-26/L Sentence altered.