2016 P Cr (PLP)

JAMES JOSEPH, J.

This single judgment shall dispose of Criminal Appeals Nos. 517 of 2009 and 622/2009 filed by Barish Ali appellant, Criminal Appeals No. 555 of 2009 Criminal Appeal No. 621 of 2009 filed by Muhammad Arshad appellant, Criminal Revision No.246 of 2009 filed by Muhammad Iqbal and Murder Reference No.158 of 2009 sent by the learned trial Court for confirmation of the death sentence of appellant Barish Ali son of Muhammad Tufail or otherwise as all above captioned matters have arisen out of one and the same judgment dated 13.07.2009 passed by learned Additional Sessions Judge Lodhran, wherby the appellants Barish Ali and Muhammad Arshad were convicted and sentenced in case FIR No. 256/2006 dated 15.09.2006 offence under sections 302/109/34, P.P.C. registered at Police Station Gailewal District Lodhran as under:- (1) Barish Ali son of Muhammad Tufail was convicted under section 302(b), P.P.C. and sentenced to death. (2) Muhammad Arshad son of Muhammad Tufail was convicted under section 302(b), P.P.C. and sentenced to imprisonment of life with a fine of 100,000/- which shall be recoverable from the convict as land revenue. Benefit of section 382-B, Cr.P.C. was also extended to him".

2. Briefly the prosecution story, as put forth by complainant Muhammad Iqbal (PW-1) through his statement Exh PA is as under:- "I am cultivator. Today I along with Wasil Din and Ghulam Mustafa my brothers were coming to home after meeting with our relative. At about 10.00 a.m. when we reached near Mor Chah Qual-wala, my son Tahir Mehmood had been transporting a bag of fertilizer on motorcycle No. 3459/KWB towards the house. Barish Ali armed with pistol .30 bore and Muhammad Arshad armed with .30 bore pistol waylaid of Tahir Mehmood and raised lalkara. Barish Ali made a fire of his pistol which landed on his right leg. My son left the motorcycle and tried to run. In our view, Barish Ali made another fire shot which landed on his left leg. Muhammad Arshad also made two successive fires which landed on left and right legs of Tahir Mehmood who fell on the ground, Barish Ali and Muhammad Arshad gave brick bats on my son who sustained injuries on his entire body. Barish All also put out dagger from the Nefa of his shalwar and inflicted injuries on the right thigh of my son. Muhammad Arshad with his teeth bite on his back. Upon our hue and cry, many persons gathered there. Accused persons while brandishing their weapons, fled away on their motorcycle. We attended Tahir Mehmood who was smeared with blood and shifted for medical treatment but in the way to hospital, my son succumbed to the injuries. Motive behind the occurrence was that Tahir Mehmood, my son, got registered a criminal case against Barish Ali etc. vide FIR No.126/2006 under sections 337-A(i)/337-A(ii)/337-L(2)/34, P.P.C. P.S. Gellaywal. Respectable of the vicinity arranged compromise in that criminal case but Barish Ali and Muhammad Arshad, due to previous enmity and revenge, in furtherance of their common intention, at the instigation of their father Muhammad Tufail, committed the murder of Tahir Mehmood. Proceedings be initiated." Upon the said statement of the complainant, formal FIR (Exh PA/1) was recorded by Abdul Ghaffar S.E. (PW-5).

3. After the registration of the case, on completion of investigation, Report under section 173, Cr.P.C. was submitted for trial before the trial Court.

4. Learned trial Court, after observing all legal formalities provided under the Criminal Procedure Code, framed the charge on 05.03.2007 against Barish Ali, Muhammad Arshad (present appellants) and Muhammad Tufail under sections 302/109 read with section 34, P.P.C., to which they pleaded not guilty and prosecution evidence was summoned.

5. The prosecution examined Muhammad Iqbal son of Sardar complainant PW-1 who reiterated the same facts as mentioned by him in his statement Exh PA. Wasil Din son of Sardar PW-2, the alleged eye-witness, corroborated the statement of PW-1, Tariq Mehmood son of Muhammad Iqbal PW-3 identified the dead body of the deceased at the time of post mortem examination. He also witnessed of recovery of last worn clothes of the deceased which were taken into possession by the IO vide memo Exh PK. Muhammad Salem son of Muhammad Wasil PW-4 deposed regarding the abetment of Muhammad Tufail accused with his sons (appellants/convicts). Abdul Ghaffar SI PW-5 chalked out formal FIR Exh PA/1 on the basis of statement of complainant Exh PA without any addition or omission on his part. Muhammad Shafi 128/HC PW-7 being Moharrir received the case properties/sealed parcels from the IO of this case and kept the same in the Malkhana in safe custody. Muhammad Tufail S.I. PW-8 is the Investigating Officer of this case who deposed regarding the steps taken by him during the investigation of the case. Rab Nawaz 520/C PW-9 along with Tufail escorted the dead body of the deceased for post mortem from DHQ Hospital Lodhran. This witness also took the sealed parcels from the Moharrir of the Police station and deposited the same in the relevant offices intact. Sajjad Ahmad Patwari Halqa (PW-10) prepared scaled site plans of the place of occurrence Exh PP and Exh PP/1.

6. Medical evidence was furnished by Dr. Zafar Iqbal PW-6 who found the following injuries on the dead body of the deceased.

1. Lacerated wound l x 1 c.m., circular (fire arm wound of entry) present on back and medial side of upper part of left thigh (just below the lower and medial part of left buttock) Margins are inverted and black. It is through and through.

2. Lacerated wound (fire arm wound of exit) 1.5 x 1.5 cm circular present on enterio lateral aspect of left thigh. Margins are everted and irregular. It is 18 cm below iliac crest.

3. Lacerated wound 3 x 1.5 cm muscle deep present on front of lower part of left thigh. 10 cm above the left knee joint.

4. Lacerated wound (fire arm wound of entry) 1 x 1 cm circular margins are inverted and black, present on upper and posterior aspect of left leg 4 cm below the left knee joint. It is through and through.

5. Lacerated wound (fire arm wound of exit) 1.5 x 1.5 cm, margins are everted, irregular, present on upper and posterior aspect of left leg, 5 cm below left knee joint.

6. Abrasion measuring 3 x 3 cm present on medial side of right lower leg, 6 cm above of right ankle joint.

7. A lacerated wound (fire arm wound of entry) 1 x 1 cm circular margins were inverted present on medial aspect of right leg 15 cm below left knee joint. It is through and through.

8. A lacerated wound (fire arm wound of exit) 2 x 2 cm circular present on enterio lateral aspect of right leg, 15 cm below the right knee joint margins are inverted and irregular.

9. Lacerated wound (fire arm wound of entry) 1.5 x 1.5 cm present on anterio lateral aspect or right leg 11 c.m. below right knee joint margins are inverted and black.

10. A lacerated wound (fire arm wound of exit) measuring 4 x 2 cm present on anterio lateral aspect of right leg 16 cm below the right knee joint. Muscles were ruptured bone was exposed.

11. Incised wound 2 x 1 cm muscle deep present on posterior aspect of right thigh 8 cm above right knee joint.

12. A bruise 1.5 x 1 cm bluish black present on front of left upper arm 3 cm above left elbow joint.

13. A bruise bluish black in colour 4 x 0.5 cm present on front and left side of neck.

14. A bruise black in colour 7 x 6 cm present on back and upper part of right shoulder.

15. Impression of teeth bite (10 in number) with bruise in curved shape, present on back of right chest, just below the right scapula. In the area of 3 x 4 cm. It is black in colour. In his opinion, the cause of death in this case was haemorrhage and shock due to injuries Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 collectively to cause death in ordinary course of nature. All injuries were ante-mortem. Injuries Nos. 1, 2, 4, 5, 7, 8, 9, 10 were caused by fire arm, injury No.11 was caused by sharp edged weapon while rest injuries were caused by blunt weapon. Probable time between injuries and death between half hour to one hour and between death and post mortem was about 4-1/2 hours.

7. Learned Deputy District Public Prosecutor closed the prosecution case on 26.03.2009 after tendering certain reports in prosecution evidence.

8. On the other hand, statements of the appellants and co-accused were recorded under section 342, Cr.P.C. who refuted the allegations so leveled against them in prosecution evidence. They opted to produce defence evidence as well as also opted to appear as a witness under section 340(2), Cr.P.C.

9. The appellants tendered in their defence evidence certain documents i.e. Exh DA to Exh D-G, and closed their evidence, however, they did not appear in witness box as required under section 340(2) of Cr.P.C.

10. After conclusion of the trial, learned trial court convicted Barish Ali and Arshad Ali appellants, with above stated sentence through judgment dated 13.07.2009, while co-accused Muhammad Tufail was acquitted by giving him the benefit of doubt. Hence, these appeals and revision petition and murder reference.

11. It is contended by learned counsel for the appellants that the case against the appellants is false; that appellants has no motive to commit the present occurrence; that prosecution evidence is full of contradictions and discrepancies; that no specific injury is attributed to the appellants; that the judgment passed by the learned trial court is based on surmises and conjectures and is the result of misreading and non-reading of the evidence produced by the prosecution. Lastly it is prayed that by accepting the appeals filed by the appellants, they may graciously be acquitted of the charge.

12. Conversely learned Deputy Prosecutor General has vehemently controverted the arguments advanced by learned counsel for the appellants while maintaining that it is a promptly lodged FIR wherein the appellants are nominated with specific role of causing injuries on the person of the deceased; that by producing reliable, trust worthy and confidence inspiring evidence, the prosecution has fully proved the charge against the appellants; that the judgment passed by the learned trial court is based on settled principle of law and there is no misreading or non-reading of evidence on the file. Lastly submits that the judgment passed by the learned trial court does not call for any interference and hence, prayed for the dismissal of the appeals filed by the appellants.

13. We have heard the arguments and perused the record.

14. The details of prosecution story has already been given in the preceding paragraphs of this judgment, therefore, there is no need to repeat the same, however, according to the prosecution story as unfolded in the statement of Muhammad Iqbal complainant Exh-PA on the basis of which formal FIR Exh PA/1 was recorded, the occurrence in the present case took place at 10.00 a.m. on 15.09.2006 and the matter was reported to the police at 12.30 p.m. (day time) on the same day within two hours and 30 minutes. The distance between the place of occurrence and the police station is 06 k.m. and to our mind in remote areas where there is no proper facility of transport this consumption of time does not point towards any deliberation or consultation on the part of the complainant. As such the FIR was promptly lodged against the appellants and possibility of substitution of the accused/appellants stands eliminated as FIR was registered without any unnecessary loss of time within two hour and 30 minutes. So chance of entering into deliberation and consultation with others to involve the appellants is excluded and all the material details of the occurrence have been elaborately explained in the FIR.

15. The complainant Muhammad Iqbal while appearing as (PW-1) reiterated almost the same facts as mentioned in his statement Exh PA. He was put to the test of lengthy cross-examination but nothing favourable to the defence could be extracted as PW-1 remained firm on his stance as mentioned in his statement as well as in FIR and even no suggestion was put to him from the defence side regarding the time. place and mode of occurrence. In response to a question put to him during cross-examination from the defence side, the PW (complainant) has categorically stated that: "When Barish Ali and Arshad Ali accused raised lalkara, we were at a distance of 5/7 Qadam from the accused. When accused Barish Ali made fire shot we were at a distance of half foot from the deceased." In another question put to him by the defence side the PW-1 stated that: "Barish Ali and Arshad Ali accused were wearing clothes of white colour at the time of occurrence." Again while answering to a question put to him by defence side PW-1 deposed as follows:- "When Barish Ali accused made first fire, Tahir Mehmood deceased was sitting on motorcycle. When Barish Ali accused made fire he was standing on the right side of deceased Tahir Mehmood. When Barish Ali accused made fire Tahir Mehmood deceased stopped his motorcycle due to speed breaker." PW-1 again deposed by giving the detail of occurrence on a question being asked by the learned defence counsel as follows:- "Barish Ali accused made his second fire-shot at the deceased when he was at a distance of half foot from the deceased." While answering to a question put to him by defence side PW-1 (complainant) deposed as follows:- "Barish accused gave dagger blow to the deceased after the two fires of Arshad Ali accused. Arshad Ali and Barish Ali made their fires to the deceased while they were in standing position." No suggestion was ever put to PW-1 that he was not present at the relevant time at the place of occurrence. In another question put to him from the defence side the PW-1 stated that: "The pieces of bricks which were used by Barish and Arshad accused for causing injuries to Tahir Mehmood were present on the road side." The above said narration made by the PW-1 complainant eliminated the false identification of the appellants at the time and place of occurrence and clearly reflects that he was present at the relevant time at the place of occurrence along with his deceased son, therefore, we hold that the presence of PW-1 (complainant) at the relevant time and place of occurrence is sufficiently proved.

16. Wasil Din son of Sardar (PW-2), who was also present with the complainant at the relevant time at the scene of occurrence, also reiterated the same facts. He was also put to the test of lengthy cross-examination but he also remained firm on all material points i.e. time, place and mode of occurrence. The defence side remained unable to extract anything favourable to the appellants. He also stated that he was present at the time and place of occurrence and in his presence the IO took into possession blood stained earth, crime empties P-1 to P-4, made them into sealed parcel. The IO also took into possession one bullet of .30 bore pistol from the place of occurrence and two pieces of bricks P-6 and P-7 in his presence. Motor cycle CD-70 KWB-3459 owned by Tahir Mehmood along with a bag of fertilizer was also took into possession by the IO in his presence. In response to a question put to him from defence side he stated as under:- "Accused Barish and Arshad were standing at a morr on foot. They were standing on the road side. When we saw the accused persons they were armed with pistols. Motor cycle of the accused persons was standing besides them." In response to another question put to him from defence side PW-2 stated that:- "When Barish Ali accused made fire upon Tahir Mehmood deceased, we were at the distance of 2/3 karam from the deceased Tahir. Barish Ali accused made first fire which hit Tahir on leg. Barish Ali accused made his second fire after his first fire within no time. When Tahir Mehmood sustained two fires from Barish Ali he jell down on the metal road. Barish Ali accused caused injuries on the person of deceased with dagger." In another question put to him by the defence side, he aswered as follows:- "After the fire of Barish accused within five seconds Arshad Ali accused made fires to the deceased. Arshad bit upon the back of the deceased and thereafter they fled away from the place of occurrence. Both the accused caused injuries with the pieces of bricks prior to the biting of accused Arshad." The deposition made by this PW clearly indicates that he was present at the relevant time at the place of occurrence as all the detail of occurrence and the manner in which the occurrence was committed by the appellants has been mentioned by the PWs which is quite inline with the deposition made by PW-1 and the whole occurrence was witnessed by him, therefore, we hold that the presence of PW-2 is also not doubtful and by giving the details of occurrence, the PW-2 has explained and proved his presence satisfactorily at the spot.

17. The motive behind the occurrence is previous criminal case/litigation between the parties. The deceased got lodged a criminal case under section 337-A(ii), P.P.C. against Barish Ali and others in which the respectable of the area got effected compromise between son of the complainant and Barish Ali etc. The same fact has been deposed by PW-2 during a question put to him from defence side as under:- "In the previous criminal case which was pending between accused party and us, compromise was effected between the parties". It is clear from the above said deposition that if the above said matter was compromised, then no other reason has been brought on the file by the prosecution against the appellants to commit the present occurrence, therefore, to our mind the motive set forth by the prosecution is shrouded in mystery.

18. The present occurrence took place in broad day light, therefore, there is no question of wrong identity of the accused/appellants in the present case. No question was put to the PW-2 regarding his non availability at the scene of occurrence and witnessing the same, therefore, we do not see any ill-will of the PWs to falsely implicate the appellants in the present occurrence. Since no ill-will of false implication is observed therefore, their evidence cannot be brushed aside merely by suggesting that the PWs are inter se related and inter se related to deceased also. In this regard reliance is placed upon the case law reported in "Elahi Bakhsh v. Rab Nawaz and others" (2002 SCMR 1842) in which august Supreme Court of Pakistan has held that:- "Let we mention here at the outset that prosecution has proved the case beyond shadow of doubt by producing worthy of credence and irrefutable evidence. The statement of Elahi Bakhsh PW-7 duly corroborated by Abdur Razzaq PW-10 could not be brushed aside on flimsy grounds. The above named by witnesses stood firm to the test of cross-examination and nothing advantageous could be elicited in spite of searching questions. Though Elahi Bakhsh PW-7 had shown some reluctance to admit the inter se relationship with the petitioner but on this score alone his version which otherwise is confidence-inspiring cannot be discarded. Insofar as his absence from the place of occurrence is concerned as per the statement of Muhammad Mumtaz PW-8 that is not convincing for the simple reason that no definite timings whatsoever was mentioned by Muhammad Mumtaz PW-8 but probable time has been mentioned and on the basis of mere probability the statement of an eye witness cannot be thrown away." Therefore, it is held that the evidence of these PWs are natural which is worthy of credence and reliance.

19. The medical evidence in the instant case was furnished by PW-6 Doctor Zafar lqbal Medical Officer who conducted the post mortem examination upon the dead body of the deceased and observed as many as 15 injuries on the person of the deceased. In his opinion the cause of death in this case was haemorrhage and shock due to injuries Nos.1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 collectively. He further deposed that injuries Nos. 1, 2, 4, 5, 7, 8, 9, 10 were caused by fire arms weapon while injury No. 11 was caused by sharp edged weapon while rest of the injuries were caused by blunt weapon. Probable time between injuries and death is 1/2 to one hour and between death and post mortem was about 4-1/2 hours. The deposition made by the medical officer is quite inline with the detail of the occurrence given by PW-1 and PW-2 regarding the inflicting of injuries with fire arms weapons and also inline with the time of death as mentioned by the PWs in the FIR that the deceased succumbed to the injuries at the spot after sustaining the injuries, therefore, we hold that the prosecution story is fully corroborated by the medical evidence, however it is clear from the above said deposition of the Medical Officer (PW-6) that he has not mentioned any specific injury as the cause of death of the deceased rather injuries Nos.1 to 11 were declared to be the cause of death collectively which of course all of them are not specifically attributed to any of the appellants. They collectively caused the injuries on the person of the deceased, however, it was held in the case law titled as "Mst. Sabeeha v. Ibrar and others" (2012 SCMR 74) as under:- "Admittedly none of the prosecution witnesses including the injured witnesses attributed any specific injury to any of the accused and three of the co-accused remained fugitive to law. This uncertainty qua the fatal injuries and the fact that qua two of the co-accused, the prosecution case was found not worthy of reliance and they were acquitted, the afore-referred reasons given by the learned High Court in reducing the sentences of death of the appellant/respondents into life imprisonment is neither arbitrary nor unjust."

20. Coming towards the recovery of weapon of offence on the pointation of the appellants, we have observed that according to the prosecution story both the appellants were arrested on 08.10.2006 and physical remand was obtained by the IO. The accused/appellant Barish Ali made disclosure on 13.10.2006 regarding weapon of offence at the concerned police station before PW-8 Muhammad Tufail SI/SHO/IO and in consequence thereof he led to the recovery of weapon of offence from his residential house but copy of Roznamcha of P.S. Karor Pakka Exhibited as Exh DD reflects that appellant Barish Ali on 13.10.2006 was not present in the lock up of Police Station Galeywal rather he was locked in the lock up of P.S. Karor Pakka on the day of recovery of weapon of offence i.e. 13.10.2006. This factual position has created some doubt regarding the recovery of weapon of offence on the pointation of appellant Barish Ali and the prosecution remained unable to controvert the documentary evidence produced by the appellant in this regard. Similar is the position regarding the appellant Arshad Ali who was also confined in the lock up of P.S. Karor Pakka regarding which rapt Roznamcha Exh DA is available on the file which has also created some doubt regarding the recovery of weapon of offence on the pointation of Arshad Ali appellant on 15.10.2006. Even otherwise no person from the locality was associated by the IO at they time of recovery besides the fact that the place of occurrence was situated in thickly populated area and besides the fact that wherefrom the recovery was effected i.e. residential house of the appellant, other persons/inmates were also resided there. Meaning thereby the place of recovery was not exclusively owned by the appellants. Therefore, we hold that the recovery effected from the possession of the appellants is highly doubtful.

21. Another factor which has created some doubt regarding the recovery proceedings is that the empties in the instant case were recovered on 16.09.2006 but the same were dispatched on 06.10.2006 i.e. two days prior to the arrest of the appellants. No explanation in this regard has been given by the prosecution for retaining the empties for such a long time whereas pistols were allegedly recovered on 13.10.2006 and 15.10.2006 from the appellants Barish Ali and Arshad Ali respectively but they were also retained for a considerable long time and the same were dispatched on 30.10.2006. There is no explanation as to why the pistols were retained by the prosecution for such a long time. Meaning thereby, the empties and the pistol remained with the prosecution for a considerable long time, therefore, the said reason has made the report of Forensic Science Laboratory, Lahore regarding matching of the empties with the pistol recovered from the appellants/convicts, has made of no consequences. Reliance in this regard may be placed upon the judgments reported as "Ali Sher and others v. The State" (2008 SCMR 707) and "Nazer Abbas v. The State" (2012 YLR 2748).

22. Investigation of the instant case was conducted by Muhammad Tufail SI PW-8 who upon receiving the information about the occurrence reached at the spot, dispatched the dead body for the post mortem examination after preparing injury statement and inquest report, inspected the spot, took into possession blood stained earth, crime empties, prepared rough site plan, recorded statements of PWs and interrogated the matter and found the appellants involved in the present occurrence. No suggestion was put to the PW-8 regarding any dishonest investigation; therefore, the version of the prosecution is corroborated by the result of investigation also.

23. Although we have disbelieved the prosecution evidence qua the motive and have not considered the recovery of pistols as corroborative piece of evidence in the instant case. Even then there is sufficient incriminating evidence available on the record to prove the prosecution case against the appellants. As discussed earlier prosecution case was proved against the present appellants through the evidence of eye witnesses furnished by Muhammad Iqbal PW-1 and Wasil Din PW-2 which was supported by the medical evidence furnished by Medical Officer Dr. Zafar Iqbal PW-6, therefore, we are of the view that the prosecution has proved its case against the appellants Barish Ali and Arshad All beyond any shadow of doubt. On the other hand the appellants Barish Ali and Arshad Ali did not appear as their own witness as required under section 340(2), Cr.P.C. but produced some documents in their defence and simply replied to question as to why the PWs have deposed against them and why this case against them, both the appellants replied in similar tune as follows:- "Prior to this occurrence, a quarrel was occurred between deceased and accused Barish Ali and Tufail, after that a compromise was made due the intervention of respectable of the locality. It is found to mention that deceased Tahir Mehmood was declared guilty/faulty in the Punchait, because not only he was declared aggressor but also he lodged fake and false FIR against Barish Ali and Tufail. After this compromise, no piece of enmity or grudge was present between the parties and they were on friendly relations. One person namely Sana Ullah Sial, who had friendly relations with deceased family, one time he complained them that deceased whir Mehmood has developed illicit relation with sister of accused Arshad and Barish and asked them to forbade the deceased. They informed this fact to the father of the deceased but they were infuriated on their advice. After some days, it came into the knowledge of them that Sana Ullah has committed murder of deceased Tahir Mehmood due to the revenge of illicit relation of Tahir Mehmood with the sister of Sana Ullah. When it came into their knowledge that complainant party with the connivance of police lodged a false FIR against Barish Ali, Muhammad Arshad and Muhammad Tufail. Barish Ali and Muhammad Arshad surrendered before the police. During the investigation of PW-8, Muhammad Tufail I.O. it was revealed that not only Sana Ullah accused was present on the place of occurrence but he also made first fire, which hit the deceased and also investigation of D.S.P. namely Shaukat Murtaza Malhi verified this fact through independent witnesses and in his opinion also mentioned the role of Sana Ullah Sial during the investigation but due to the mala fide intention of police as well as complainant party Sana Ullah Sial was never ever summoned in this case and due to mala fide intention just to assist the complainant party, Investigation Officer, violating the police rules never mentioned the name of Sana Ullah Sial and never bothered to investigate him to probe actual facts and in his statement he admitted the role of Sane Ullah Sial, due to above facts complainant party narrated a false and fabricated story with connivance of police, in which all the proceedings and recoveries are fake and planted and even documentary record does not support their version. All the witnesses produced before this court are close relatives (father, uncle and nephew) which are interested witnesses and they involved them due to family grudge." In view or the above, the defence taken by the appellants is nothing but a denial simplicitor denial which is hereby discarded.

24. Now coming to the quantum of sentence, we have noted some mitigating circumstances in favour of the appellants. We observed that no specific injury is attributed to any of the appellants which proved fatal and became the cause of death; secondly we have also not believed the evidence of recovery of weapon of offence; thirdly we have also not believed the motive set up by the prosecution. It is not determinable in this case as to what was the real cause of occurrence and as to what was actually happened immediately before the occurrence which resulted into present unfortunate incident, therefore, in our view the death sentence awarded by the learned trial court to the appellant Barish Ali is quite harsh. It is well recognized principle by now that the accused is entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence as well. In this regard, we respectfully refer the case of "Mir Muhammad alias Miro v. The State" (2009 SCMR 1188) wherein it has been 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 part 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."

25. Same view has been reiterated by the Supreme Court of Pakistan in case titled as "Ghulam Mohy-ud-Din alias Haji Babu and others v. The State" (2014 SCMR 1034) in which Hon'ble Supreme Court of Pakistan has observed as pages 1043 and 1044 as under:- "Albeit, in a chain of case-law the view held is that normal penalty is death sentence for murder, however, once the Legislature has provided for awarding alternative sentence of life imprisonment, it would be difficult to hold that in all the cases of murder, the death penalty is a normal one and shall ordinarily be awarded. If the intent of the Legislature was to take away the discretion of the Court, then it would have omitted from clause (b) of section 302, P.P.C., the alternative sentence of life imprisonment. In this view of the matter, we have no hesitation to hold that the two sentences are alternative to one another, however, awarding one or the other sentence shall essentially depend upon the facts and circumstances of each case. There may be multiple factors to award the death sentence of the offenee of murder and equal number of factors would be there not to award the same but instead a life imprisonment. It is a fundamental principle of Islamic Jurisprudence on criminal law to do justice with mercy, being the attribute of Allah Almighty but on the earth the same has been delegated and bestowed upon the Judges, administering justice in criminal cases, therefore, extra degree of care and caution is required to be observed by the Judges while determining the quantum of sentence, depending upon the facts and circumstances of particular case/cases.

21. A single mitigating circumstances, available in a particular. case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment. No clear guideline, in this regard can be laid down because facts and circumstances of one case differs from the other, however, it becomes the essential obligation of the Judge in awarding one or the other sentence to apply his judicial mind with a deep thought to the facts of a particular case. If the Judge/Judges entertain some doubt, albeit not sufficient for acquittal, judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows. So it is better to respect the human life, as far as possible, rather to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed. Albeit, there are multiple factors and redeeming circumstances, which may be quoted where awarding of death penalty would be unwarranted and instead life imprisonment would be appropriate sentence but we would avoid to lay down specific guidelines because facts and circumstances of each case differ from one another and also the redeeming features, benefiting an accused person in the matter of reduced sentence would also differ from one another, therefore, we would deal with this matter in any other appropriate case, where if proper assistance is given and extensive research is made. In any case, if a single doubt or ground is available, creating reasonable doubt in the mind of Court/Judge to award death penalty or life imprisonment, if would be sufficient circumstances to adopt alternative course by awarding life imprisonment instead of death sentence."

26. Further reliance is placed on case titled "Hasil Khan v. The State" (2012 SCMR 1936) in which Hon'ble Supreme Court of Pakistan has observed at page 1941 as under:-- "however, coining to the question of enhancement of sentence by the learned High Court, we find that the learned High Court did not appreciate that motive alleged in the FIR was rather weak and there was no reason why Saeed Bakhsh, deceased, should have been the victim of the said motive part of the prosecution story. Moreover, as rightly observed by the learned Trial Court the immediate motive remained shrouded in mystery and the Trial Court rightly did not award the maximum sentence of death provided under section 302(b), P.P.C. to the appellant. The enhancement of sentence by the learned High Court, we may observe with respect, is not in accord with the law laid down by this Court in Muhammad Ashraf Khan Tureen v. The State (1996 SCMR 1747) wherein at page 1755, the Court dismissed complainant's appeal and did not enhance the sentence by holding as follows:- "in respect of sentence learned counsel for the complainant/State wanted conversion of the life imorisonment into death sentence. Learned counsel cited case of Ifikhar Ahmad v. The State (PLD 1990 Supreme Court 820) where criminal petition by the complainant challenging reduction of sentence by the High court was dismissed by this Court on the ground that the principle of origin of offence remained shrouded in mystery. This authority does not further prayer of the complainant for awarding death penalty to the appellant. In the present case prosecution did not allege any specific motive for commission of the offence. In circumstances, the appellant could not have been awarded the death penalty". Similarly in Jehanzeb v. The State (2003 SCMR 98), the Court altered the sentence of death of the convict to life imprisonment by observing that where motive alleged by the prosecution has not been satisfactorily proved, this may be considered as a mitigating circumstance qua the quantum of sentence".

27. In another case titled as "Nawaz Khan v. Ghulam Shabbir and The State" (1995 SCMR 1007) while determining the proper quantum of sentence, Hon'ble Supreme Court of Pakistan in Para No. 9 of the judgment has observed as under: "Adverting to the question of sentence raised by the learned counsel for Nawaz Khan, we find that Abdullah Khan (PW-9) and Muhammad Akhtar (PW-10) have deposed about the motive but they were not present when the incident of motive took place. The circumstance of chopping of nose and cutting the ear of the deceased will show that the act of the accused of killing the deceased was somewhat provoked. So the real motive for the crime remains shrouded in mystery. The question of benefit of reasonable doubt is necessarily to be determined not only while deciding the question of guilt of an accused person but also while considering the question of sentence, particularly in a murder case, because there is a wide difference between the two alternative sentences death or imprisonment of life. Benefit of reasonable doubt in respect of the real cause of the occurrence was thus available to the accused. Needless to add that whenever the real cause of murder is shrouded in mystery, is unknown or is concealed, the courts have normally awarded the lesser punishments under section 302, P.P.C. as a matter of abundant caution. (underlining is ours)".

28. For the forgoing reasons, the conviction of Barish Ali appellant under section 302(b), P.P.C. awarded by the learned trial Court vide judgment dated 13.07.2009 is maintained and his sentence is altered from death to life imprisonment. The compensation awarded by the trial Court and sentence in default thereof is maintained and upheld. Benefit of section 382-B, Cr.P.C. is also extended to the appellant Barish Ali. Similarly the sentence of life imprisonment awarded to Arshad Ali appellant by the learned trial court is maintained and up-held. Consequently with the above said modification in the sentence of Barish Ali appellant, Criminal Appeal No.517 of 2009 and Criminal Appeal No.622-2009 filed by Barish Ali appellant and Criminal Appeal No. 555 of 2009 and Criminal Appeal No. 621 of 2009 filed by Arshad Ali appellant are dismissed whereas in the light of above discussion the revision petition filed by the complainant bearing No. 246 of 2009 also stands dismissed. Murder Reference No. 158 of 2009 is answered in negative. Death sentence awarded to Barish Ali appellant/convict is not confirmed. HBT/B-5/L Sentence reduced.