2017 PLP 157 (YLRN)

M. TABASSUM AFTAB ALVI, J.

The captioned Appeals arise out of the same judgment dated 12.01.2015, recorded by the learned District Court of Criminal Jurisdiction, Bagh, hence, these are clubbed and decided together through the instant Judgment.

2. The precise facts forming background of the instant Appeals are that on 27th March, 2011, Bagh Police received information that an injured was brought in D.H.Q Hospital, Bagh, where,complainant, Muhammad Javaid son of Shahmeer, submitted a written application before S.H.O. Police Station, Bagh. The contents of application are reproduced as under:-- "I am resident of village Nar-Sher-Ali-Khan. My brother Pervaiz son of Shahmeer, resident of Sher-Ali-Khan, drives Coaster No.0686/L.W.O, belonging to Gul Azam son of Muhammad Azam, from Dhalli to Lahore and Zafeer son of Muhammad Siddique, Caste Maldiyal, resident of Khallil-Darman Abbaspur, is a conductor with him. Today, Pervaiz along with Zafeer Conductor, after parking vehicle at Dhalli in the evening, as usual, they slept in residential room on the upper storey of the hotel of Gul Azam. At 10:00 p.m. some unknown person/persons having intention to murder my brother, fired at him with a pistol, which hit on right side of his chest, who cannot speak. At present, I have suspicion upon (1) Gul Azam son of Muhammad Azam, resident of Dhalli, (2) Zafeer son of Siddique, Caste Maldiyal, resident of Khalli-Darman Abbaspur, (3) Zulfiqar son of Rasheed, Caste Pathan, resident of Chhattar No.2 and (4) Kamran son of Zulfiqar, Caste Satti, resident of Malote, who were present over there. My brother had cash of vehicle with him too. The report is submitted to initiate legal proceedings."

3. As per the aforesaid report, a case No.56/2011, in offences under sections 324 and 337(F), A.P.C. was registered at Police Station, Bagh, on 27th March, 2011, at 11:15 p.m. After registration of case, investigation was entrusted to Investigation Branch, Bagh. However, Muhammad Pervaiz, was referred to Rawalpindi for treatment, who succumbed to injuries on the way to Rawalpindi, thereupon, offence under section 302, A.P.C. was also added. Later on, postmortem of Muhammad Pervaiz, deceased, was conducted by doctor in D.H.Q. Hospital, Bagh, who found the following wounds and position of injuries:-- 1. "Roundish penetrating wound injury with charred edges posterior of right side of chest just above the scapula region.

2. Roundish penetrating wound on Rt. anterior of chest lately just above 2 inches of right nipple.

3. Distance from weapon, within 2 feet.

4. Size of injury, Entry: 1/2 inch about, Exit less than one inch."

4. The investigation of case was started and bloodstained articles were recovered from the place of occurrence and statements of P.Ws. under section 161, Cr.P.C. were recorded. The suspected persons, who were nominated by complainant in FIR, namely, (1) Gul Azam son of Muhammad Azam, (2) Zafeer son of Siddique, (3) Zulfiqar son of Rasheed and (4) Kamran son of Zulfiqar, were being interrogated by police. Meanwhile, convicts-appellants, Ali Pasha and Muhammad Khalid, were arrested on 03.04.2011 and 04.04.2011, respectively. On the pointation of convict, Muhammad Khalid, a Kalashnikov was recovered, thereupon, offences under sections 34, A.P.C. and 13/20/65, Arms Act, were also added. After necessary investigation, a challan No.54/2011, in offences under Sections 302, 34,A.P.C. and 13/20/65,Arms Act, was submitted before District Court of Criminal Jurisdiction, Bagh, against Muhammad Khalid and Ali Pasha, convicts-appellants, on 03.05.2011.

5. The statements of accused-respondents, as required by section 265(D),Cr.P.C., were recorded on 03.06.2011, wherein, they denied the guilt, hence, prosecution was ordered to produce evidence. The prosecution produced as many as 23, out of 29, witnesses, in support of its case, during the period from 29.06.2011 to 01.02.2014. The witnesses Nos.7, 10, 31 and 27 were given up by the prosecution.

6. The trial Court, after recording evidence, put the salient feature of prosecution evidence to the convicts-appellants on 08.03.2014, as required by section 342,Cr.P.C., who once again denied the guilt and also produced 05 witnesses in defense.

7. The District Court of Criminal Jurisdiction, Bagh, after completion of trial, arrived at the conclusion, vide the impugned judgment dated 12.01.2015, that convicts-appellants were guilty of the offence of murder of Muhammad Pervaiz, deceased, and awarded them sentences of life imprisonment in offences under sections 302(c) and 34,A.P.C. along with compensation Rs.1,00,000/- (one lac) each, under section 544-A, Cr.P.C., liable to be paid to legal heirs of deceased and in case of non-payment of compensation, they shall have to undergo 6/6 months simple imprisonment. The convict, Muhammad Khalid, was also awarded sentence of 06 months simple imprisonment along with fine Rs.10,000/- (ten thousand) in offence under section 13/20/65,Arms Act, and in default of payment of fine, he shall have to undergo one month simple imprisonment. However, benefit of section 382-B, Cr.P.C. was extended in favour of both the convicts-appellants. It was further ordered that all sentences shall run concurrently.

8. Against the aforesaid judgment dated 12.01.2015, Criminal Appeal No.04/2015, has been filed by convicts-appellants, Muhammad Khalid and Ali Pasha, for setting aside the same, whereas, Criminal Appeal No.15/2015, is filed by Muhammad Javaid Khan, complainant, for enhancing sentences of the aforesaid convicts, upto death sentence, which are subject matter of the instant judgment.

9. Raja Sajjad Ahmad Khan, the learned Counsel for convicts-appellants, argued with vehemence that convicts were not nominated in FIR rather the same was registered against the persons who were present in Bismillah Hotel at the time of occurrence, namely, (1) Gul Azam son of Muhammad Azam, (2) Zafeer son of Siddique, (3) Zulfiqar son of Rasheed and (4) Kamran son of Zulfiqar, however, they were neither arrested nor their statements under section 161, Cr.P.C. were recorded at first instance. However, later on, the aforesaid suspected persons were exonerated and convicts-appellants were implicated in the case, on the basis of an assertion made by Zafeer, conductor, before police and complainant, besides the ground of confessional statements of convicts-appellants, which, as per prosecution story, were made before Sardar Khalil Ahmad Khan and Sardar Idrees Khan, on 02.04.2011, while convicts-appellants were arrested on 29.03.2011, but their arrest was shown in remand form on 03.4.2011 and 04.04.2011. The learned Counsel drawn our attention towards site plans and submitted that the place of occurrence, room No.2, was situated at upper storey of Bismillah Hotel, where Muhammad Pervaiz, deceased, was sleeping and with him Zafeer, conductor, was also asleep in the same room on another cot, while in front of that room a hall is situated, where, Kamran, conductor, was stated to be slept and in another adjacent room Zulfiqar, conductor, was also asleep, but it is astonishing that none of the aforesaid persons saw anybody while fleeing away after firing shot. The learned Counsel pointed out that prosecution story is that Ali Pasha, gave Kalashnikov to Muhammad Khalid, to kill Muhammad Pervaiz, and Muhammad Khalid, came from the backside door of Bismillah Hotel, fired shot upon Muhammad Pervaiz, and fled away along with the Kalashnikov, and as per postmortem report, the shot was fired from the distance of 02 feet, which means, convict Muhammad Khalid, was very near to Muhammad Pervaiz, when the shot was fired, whereas in front of room No.2, a hall is situated, where Kamran, conductor, was asleep and in another adjacent room Zulfiqar, conductor, was also sleeping, who got up after hearing the fire sound, but did not see anybody while running away, which means, that the manner of occurrence was not the same as stated by prosecution. The learned Counsel contended that in first statements of prosecution witnesses recorded under section 161, Cr.P.C., they did not state anything about convicts-appellants, while in supplementary statements by making improvements they implicated them with the commission of alleged offence of murder and likewise they also made huge improvements in their statements recorded in the trial Court, hence, it is settled principle that whenever a witness makes improvements in the statement, the same cannot be believed. The learned Counsel also pointed out that the statements recorded at belated stage, were not reliable in the eye of law; hence, prosecution case is highly doubtful. He agitated that there was no direct evidence in the instant case, however, prosecution tried to establish its case on the ground of circumstantial evidence, but it is established principle of law that the chain of circumstantial evidence should be linked from the neck of accused to the dead body of deceased, whereas in the instant case, chain of circumstantial evidence is missing and does not link the convicts-appellants with the commission of murder. He pointed out that prosecution witnesses deposed that when deceased, Muhammad Pervaiz, was being brought to D.H.Q. Hospital, Bagh, at about 10:30pm, they saw the convicts-appellants while running away on the road near a stream of Dhalli Bazaar, which according to P.Ws. is at the distance of 50/60 yards away from the place of occurrence, hence, it is quite surprising to comprehend that convicts-appellants after committing murder at about 10:00pm, only covered distance of 50/60 yards within an half hour and were walking on the road, so the prosecution witnesses, who deposed that they saw the convicts near the stream, are telling lie, whose evidence is not confidence inspiring. He emphasized that if prosecution witnesses had recognized the convicts-appellants then why they did not depose in their earlier statements recorded under section 161, Cr.P.C., thus, the Court below wrongly believing upon their evidence convicted them. The learned Counsel argued that convicts-appellants, as per prosecution story, made disclosure before police as well as before Sardar Khalil Ahmad Khan and Sardar Idrees Khan, P.Ws. regarding commission of murder by them, who asked for compromise, on 02.04.2011, but one of the aforesaid witnesses, is relative of deceased and the record of case shows that such disclosure/confession by convicts-appellants was not recorded before any Magistrate. He submitted that convicts-appellants, in fact, were arrested on 29.03.2011 and in order to establish the aforesaid confession/disclosure, the arrest of convicts-appellants was shown dated 03.04.2011 and 04.04.2011, in remand forms. He maintained that the defense also produced evidence in this regard, through which it was established that arrest of convicts was made on 29.03.2011, hence, such like confession, which, as per prosecution case, was made before two private persons, has no value in the eye of law. The learned Counsel argued that recovery of Kalashnikov was made from an open place and its witnesses were not associated with recovery proceedings from locality, rather its witnesses were planted at the place of recovery, who also made improvements in their statements; therefore, such type of recovery which was made from an open place lost its value as per criminal jurisprudence. The learned Counsel further submitted that stated motive of the case is an afterthought, because complainant firstly did not implicate the convicts-appellants in FIR and later on, he nominated them on assertions of Zafeer and Tahir P.Ws. and as per statements of the aforesaid witnesses, motive of the case is that Muhammad Pervaiz, deceased, demanded money from Ali Pasha, convict-appellant, who refused to return the same, thereupon, an altercation took place between them at Bismillah Hotel in presence of Zafeer and Tahir, 7/8 days prior to occurrence, while the aforesaid P.Ws. also made improvements in their statements, hence, their evidence is not reliable too. The learned Counsel pointed out that P.Ws. deposed that bullet hit on front side of Muhammad Pervaiz, while medical report shows different opinion of doctor; therefore, prosecution story is highly doubtful. He contended that nobody saw the convicts-appellants while hatching conspiracy and handing over Kalashnikov to Muhammad Khalid, by Ali Pasha. He maintained that Muhammad Ayub, P.W. clearly deposed in cross-examination that he did not see Kalashnikov, while convicts-appellants were sitting on rooftop of the shop. The learned Counsel stressed on the point that there was no direct evidence in the instant case and circumstantial evidence was also missing its chains, however, the Court below without going into the root of case, awarded conviction of life imprisonments to convicts-appellants, while the case was of acquittal due to its peculiar circumstances; therefore, by accepting the Appeal filed by convicts-appellants, they may be acquitted of the charges. The learned Counsel in support of his arguments placed reliance upon the following authorities:-- i. 2003 SCMR 1419. ii. PLD 2004 Lahore 871. iii. 2007 YLR 534. iv. 2008 SCR 345. v. 2008 SCMR 6. vi. PLD 2008 (sic) 942. vii. 2010 SCMR 385. viii. PLD 2011 SC 350. ix. PLD 2012 (sic) 576. x. 2013 PSC 732. xi. PLD 2014 SC AJK 92. xii. 2015 SCR 533; 2017 PCr.LJ 185. xiii. 2016 MLD 230. xiv. 2016 YLR 463 and 572.

10. Conversely, Sardar Karamdad Khan, the learned Counsel for complainant contended that although it is an unseen occurrence, however, prosecution fully established its case through circumstantial evidence, because (i) motive of occurrence, (ii) manner of occurrence, (iii) place of occurrence, (iv) weapon used and its recovery, (v) corroboration of medical evidence (vi) report of Forensic Science Laboratory and (vii) extra-judicial confession, connect the convicts-appellants with the commission of murder of Muhammad Pervaiz, deceased, hence, appellants should have been convicted and sentenced to death, as 'Tazir', under section 302(b),A.P.C., however, the Court below failed to award them death penalty. He submitted that conduct of complainant was consisting of bona fide, as, at the first instance, he filed First Information Report against persons, present in Bismillah Hotel, who were arrested and after conducting investigation, they were exonerated, however, convicts-appellants were found involved in the murder of Muhammad Pervaiz, hence, they were arrested and after investigation charge was framed against them; therefore, there is no manipulation on the part of complainant for their false implication in the given case. He pointed out that as the suspected persons were arrested; therefore, their statements under section 161, Cr.P.C., at the first instance, were not recorded, and in this regard no question was put to investigating officer, Azad Khan, during his cross-examination, so objection of the learned Counsel for convicts is baseless. He further argued that as nobody saw the occurrence, so, complainant could not describe exact seat of injury. The learned Counsel contended that motive of murder was that victim demanded his borrowed money from Ali Pasha, who refused to return the same, hence, an altercation took place between them at Bismillah Hotel, in presence of Zafeer and Tahir, hence, motive is fully proved by prosecution. The learned Counsel contended that conspiracy of murder was established by prosecution through evidence of Muhammad Ayub Khan, who stated that convicts-appellants were talking about Kalashnikov when they were sitting on the rooftop of a shop and on seeing him, they kept silent. He pointed out that convicts-appellants after 3/4 days of occurrence, met to Sardar Muhammad Khalil Khan and Sardar Muhammad Idrees Khan, who by confessing their guilt, requested them to patch up the matter with legal heirs of deceased, hence, they admitted their guilt through extra-judicial confession. He emphasized that even otherwise, the defense did not show any enmity of complainant or other relatives of deceased with convicts-appellants for their false implication in the case; therefore, trial Court, in this regard, did not commit any illegality while relying upon the statements of Sardar Muhammad Khalil Khan and Sardar Muhammad Idrees P.Ws., as the factum of confession is fully supported by evidence of the aforesaid witnesses. The learned Counsel agitated that when a specific version is taken by defense, then burden of proof shifts upon its shoulders, hence, defense also failed to discharge the burden that convicts-appellants did not commit murder of Muhammad Pervaiz. He argued that as per defense plea, convicts-appellants were arrested on 29.03.2011, however, failed to prove the same, hence, their extra-judicial confession made before Sardar Khalil Khan and Sardar Idrees Khan P.Ws. cannot be shattered. He further contended that convicts-appellants were seen at Khalid Hotel, before occurrence, and in the stream near Dhalli Bazaar, after occurrence, which factum was proved through witnesses; therefore, they are fully involved in the case. The learned Counsel pressed into service that any disclosure made by an accused while in police custody is admissible if in consequence thereof something relating to the commission of crime is collected while applying the conditions laid down under Article 40 of the Qanun-e-Shahadat Order, 1984. He argued that recovery of Kalashnikov was made on pointation and disclosure of Muhammad Khalid, convict-appellant, which fact is supported by the statements of recovery witnesses. The learned Counsel emphasized that D.Ws. supported the prosecution case and they through evidence only tried to frustrate extra-judicial confession. He submitted that prosecution has fully established its case; however, the trial Court awarded lesser punishment to convicts-appellants, which may be enhanced upto death sentence, as 'Tazir'. The learned Counsel, in support of his arguments, cited following authorities:-- i. PLD 1992 SC 211. ii) PLD 1995 SC 356. iii) PLD 1996 SC 122. iv) PLD 1996 SC 305. v) 1998 PCr.LJ (Lahore) 996. vi) 2001 PCr.LJ 524. vii) 2001 PCr.LJ 1968. viii 2002 PCr.LJ (Lahore) 1902. ix) 2004 PCr.LJ (Peshawar) 377. x) 2004 MLD (Karachi) 180. xi) 2004 MLD (Peshawar) 200. xii) 2008 YLR (Sh.C.AJ&K) 508. xiii) 2008 SCMR 1049. xiv) 2010 SCMR 1025. xv) 2011 SCMR 429. xvi) 2013 PCr.LJ (Sindh) 1406. xvii) 2014 SCR 1585.

11. Khursheed Anwar Mughal, the learned Assistant Advocate General, appearing on behalf of the State fully owned and supported the arguments of the learned Counsel for complainant.

12. We have heard arguments addressed at Bar by the learned Advocates for parties and gone through record of the case with utmost care.

13. The prosecution story, as per facts of the case, is that Muhammad Pervaiz, deceased, was driver of a Coaster No.0686/L.W.O. belonging to Gul Azam. He used to drive the aforesaid Coaster from Dhalli to Lahore and Muhammad Zafeer son of Muhammad Siddique, Caste Maldiyal, resident of Khalli-Darman Abbaspur, was a conductor with him. On 27th March, 2011, Muhammad Pervaiz and Muhammad Zafeer Conductor, after parking the vehicle at Dhalli, in the evening, as usual, slept in a room situated on the upper storey of Bismillah Hotel, which was owned and run by Gul Azam, owner of the aforesaid vehicle. At about 10:00pm, some unknown person/persons fired at Muhammad Pervaiz, which hit on right side of his chest, who sustained injuries. After occurrence, Muhammad Zafeer, Gul Azam, Muhammad Kamran and Zulfiqar, who were present in the hotel, reached at the spot and picked up Muhammad Pervaiz, in order to take him towards hospital. Meanwhile, Muhammad Zafeer, conductor, made a telephonic call to Muhammad Javaid, complainant, deceased's brother. However, Muhammad Pervaiz, injured, was carried to D.H.Q. Hospital, Bagh, by the aforesaid persons, where Muhammad Javaid, complainant, also reached and after making some query from Gul Azam and Muhammad Zafeer, submitted a written application to Police in the Hospital, against some unknown person/persons and having suspicion also nominated the persons who were present in Hotel at the time of occurrence, namely, (1) Gul Azam son of Muhammad Azam, resident of Dhalli, (2) Muhammad Zafeer son of Muhammad Siddique, Caste Maldiyal, resident of Khalli-Darman Abbaspur, (3) Zulfiqar son of Rasheed, Caste Pathan, resident of Chhattar No.2, and (4) Kamran son of Zulfiqar, Caste Satti, resident of Malote. The condition of injured was critical, therefore, he was referred to Rawalpindi; however, during travel, he succumbed to injuries at Banni-Pasari, hence, police was informed and he was brought back to D.H.Q. Hospital, Bagh, where his postmortem was conducted by doctor and investigation was started by police.

14. A study of police record reveals that suspected persons (1) Gul Azam, (2) Muhammad Zafeer, (3) Zulfiqar and (4) Kamran, were not arrested, however, they were interrogated by police. As per record, on 28.03.2011, S.H.O. Police Station, Bagh, along with other officials went at the place of occurrence, where some notables, namely, Sardar Mushtaq Ahmad Khan, Muhammad Rafique Khan, Abdul Majeed Khan, Muhammad Saleem Khan, Shamshad Khan, Tahir, Gulshad Khan, Muhammad Akhter, Altaf Hussain, Muhammad Mumtaz Khan, Muhammad Javaid Khan, Khursheed Khan watchman, Muhammad Khalid and Muhammad Latif, met him. The aforesaid persons told the S.H.O. that some person/persons committed murder of Muhammad Pervaiz, who also brought into his notice that some loafer boys often wander in Dhalli Bazaar at night, particularly, Ali Pasha and Muhammad Khalid. During interrogation, Muhammad Zafeer, conductor, made a disclosure before police, on 28.03.2011, that 7/8 days prior to occurrence, Muhammad Pervaiz, deceased, demanded his borrowed money from Ali Pasha, who refused to return the same, thereupon, an altercation took place between them, and Ali Pasha, threatened him to dire consequences. According to Muhammad Javaid, complainant, after burying dead body, on 28.03.2011, at about 4:00pm, when family members and other people of his tribe were talking about occurrence, meanwhile, Tahir son of Sarfaraz, disclosed that the instant incident might have been committed by Ali Pasha, because 7/8 days prior to occurrence, he (Tahir) went to Muhammad Pervaiz, for demanding certain amount, which was collected through a Saving Circle System like 'Ballot Committee', but Pervaiz, told him that he had spent amount, however, Ali Pasha, had borrowed some money from him. When Muhammad Pervaiz, demanded amount from Ali Pasha, he refused to return the same, thereupon, former warned Ali Pasha, that he would tell to police as well as his parents about his illegal business of wine and weapons, upon which, latter threatened to him for dire consequences. The complainant further disclosed that Ayub, Kamran and Shamshad, who were present at his home after burial of dead body, also talked about convicts-appellants. Ayub disclosed that on 27.03.2011, at about 8:00 p.m., he went to take meal at hotel, when Ali Pasha and Khalid were talking on the roof of central shop of Bazaar and he heard word `Kalashnikov' from them. Kamran told the complainant that on 27.03.2011, at 10:30pm, when he reached in Dhalli Bazaar near shrine, he saw convicts-appellants in head-light of vehicle while fleeing upward. Shamshad also repeated the same version, as deposed by Kamran. Thereupon, complainant told the police through a telephonic call that real offenders are Ali Pasha and Khalid. The complainant also disclosed that Muhammad Zafeer, conductor, met him in the morning near Sanni-Kass, on 29.03.2011, and told him that Muhammad Pervaiz, 15/20 days ago, demanded money from Ali Pasha, who offered him to take Kalashnikov in lieu of money, but Muhammad Pervaiz, refused to take Kalashnikov. Muhammad Zafeer, also told to the complainant about altercation took place between Muhammad Pervaiz and Ali Pasha, 7/8 days ago, as well as about threat of Ali Pasha, to Muhammad Pervaiz. Moreover, Sardar Muhammad Khalil Khan and Sardar Muhammad Idrees Khan, also told to the complainant that convicts-appellants met them on 02.04.2011, who confessed their guilt and requested to effect compromise with legal heirs of deceased. According to complainant, on the basis of the aforementioned suspicions and reasons, Ali Pasha and Muhammad Khalid, convicts-appellants, were taken into custody by police and were declared real offenders.

15. As in the instant case, nobody saw occurrence; therefore, ocular evidence is not available and prosecution case basically rests upon extra-judicial confession, which, as per prosecution story, was made by convicts-appellants, before Sardar Muhammad Khalil Khan and Sardar Muhammad Idrees Khan, P.Ws, coupled with circumstantial evidence. Now, it is to be determined as to whether the aforementioned extra-judicial confession and circumstantial evidence connect the convicts-appellants with the commission of murder of Muhammad Pervaiz, deceased, and whether trial Court arrived at correct conclusion?

16. It is worthwhile to observe here that complainant was informed by Muhammad Zafeer, conductor, about occurrence, through a telephonic call, whereupon, he arrived at D.H.Q. Hospital, Bagh, who met with Muhammad Zafeer and Gul Azam, in the Hospital and thereafter, he lodged an FIR No.56/2011, against some unknown person/persons, however, he showed suspicion upon (1) Gul Azam, (2) Muhammad Zafeer, (3) Zulfiqar and (4) Kamran too. Later on, as per complainant version, he was furnished information by Muhammad Tahir, Muhammad Ayub, Kamran Nawaz, on 28.03.2011, Muhammad Zafeer, on 29.03.2011, as well as by Sardar Muhammad Khalil Khan and Sardar Muhammad Idrees Khan, on 02.04.2011, about involvement of Ali Pasha and Muhammad Khalid, convicts-appellants, in the occurrence. Thereupon, they were implicated in the case through statements of Muhammad Ayub, Kamran Nawaz, Shamshad Hussain Khan and Muhammad Khursheed, recorded by police under section 161, Cr.P.C., on 28.03.2011, and supplementary statements of Muhammad Javaid, complainant, and Muhammad Tahir, recorded under section 161, Cr.P.C., on 29.03.2011, and statement of Muhammad Zafeer recorded by police under section 161, Cr.P.C., on 05.04.2011. As per prosecution story, convicts-appellants made disclosure before police as well as before Sardar Khalil Ahmad Khan and Sardar Idrees Khan, P.Ws., regarding commission of murder by them and asked the aforesaid P.Ws. to execute compromise with complainant-party, on 02.04.2011. To award conviction on the basis of an extra-judicial confession, three-fold proof is required; firstly that in fact it was made; secondly that it was voluntarily made; and thirdly that it was truly made. A minute scrutiny of evidence of the aforesaid witnesses indicates that they were going towards homes on 02.04.2011, in the evening, when convicts-appellants met them in Sanni Kass and confessed their guilt that they committed mistake by firing shot upon Muhammad Pervaiz, so, they being notables of the area might execute compromise with complainant-party. Although the aforesaid witnesses are relatives of deceased, however, it reveals from record that one of them, Sardar Muhammad Khalil Khan, P.W. is also relative of Ali Pasha, convict-appellant. Even otherwise, it is settled principle of law that evidence of a relative witness cannot be brushed aside on the ground of relationship. It is worthwhile to observe here that convicts-appellants also produced evidence in defense, but they could not show any enmity of the aforesaid witnesses with them. Moreover, defense witnesses could not establish arrest of convicts-appellants on 29.03.2011, before the date of extra-judicial confession dated 02.04.2011. We are alive that an extra-judicial confession, though a weak evidence, but can be accepted if it transpires confidence and is supported by attending circumstances, and the Court's approach while appraising evidence of extra-judicial confession should be dynamic and not static. The aforesaid view finds support from a case reported as Mst. Gallan v. The State 1999 PCr.LJ 674 wherein, it was observed as under:- "I have considered the foregoing submissions. It is true that extra-judicial confession is considered to be a weak evidence, but if it inspires confidence that the story revealed during the confession by a culprit is supported by the attending circumstances, it can be safely accepted otherwise the offenders confessing an unseen occurrence will go scot-free. The Court's approach while appraising the evidence should be dynamic and not static. It should keep in mind all facts and circumstances of the case and if be satisfied that factually the person charged with the offence had committed the same, it should record the conviction though there might have been some technical lapse on the part of the investigating agency/ prosecution provided the same had not prejudiced the accused in the fair trial. The cumulative effect appears to be that it excludes any reasonable hypothesis of the appellant's innocence. Looking at the facts of the case in hand from that angle it should be borne in mind that the complainant is the father of the deceased and there is no long lasting enmity between him and the appellant except the aforementioned quarrel. In such a situation the complainant being the father of the deceased would not like that he should spare the actual killer of his daughter and may involve the appellant if she was actually innocent." In such state of affairs, evidence of the aforesaid witnesses connects the convicts-appellants with the commission of alleged offence, which evidence was appreciated by the Court below in its true perspective, and it is well settled principle of law that a judicial or extra judicial confession can be made sole basis for conviction of an accused, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The aforesaid view finds support from a case reported as The State v. Minhun alias Gul Hassan (PLD 1964 SC 813), wherein, it was held as under:-- "As far the confessions the High Court, it appears, was duly conscious of the fact that retracted confessions, whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now well settled that as against the maker himself his confession, judicial or extra-judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement." The same view was reaffirmed in a case reported as Ayesha Khatoon v. The State 1968 PCr.LJ (Dacca) 53, wherein, it was observed as follows:-- "It is true that an extra-judicial confession in this country must be received with utmost caution and that as against judicial confession, extra-judicial confession called for a greater caution and care in their acceptance. In the present case although there is only oral evidence with regard to the confession of Ayesha Khatoon, the evidence is of uniform-character and is supported by unimpeachable evidence of three village prodhans who are in no way interested in the complainant party nor hostile to the accused. They made no discrepent statements whatsoever and their evidence is thoroughly consistent with regard to the extra-judicial confession. There is not an iota of evidence to support the defense plea that the extra-judicial confession was obtained by any sort of coercion, threat, intimidation or inducement. The extra-judicial confession has, therefore, been satisfactorily proved and is a substantial piece of evidence against the maker. The confession which is voluntary and true and receives corroboration from other material on record can lead to conviction of the accused on its sole basis." At the cost of repetition it is reiterated that although Sardar Muhammad Khalil Khan and Sardar Muhammad Idrees Khan, the witnesses of extra-judicial confession, are relatives of deceased; however, it reveals from record that one of them, Sardar Muhammad Khalil Khan, P.W. is also relative of Ali Pasha, convict-appellant; hence, testimony of the said witness has too much importance and in such like cases where a relative of accused stood witness of extra judicial confession, his evidence was deemed reliable and truthful. The aforesaid view is fortified from a case reported as Ram Khilari v. State of Rajasthan (AIR 1999 Supreme Court 1002), (wherein, it was laid down as under:-- "It was also submitted that it was not probable that the appellant would have gone to Ram Kishan and made such a confessional, statement. Ram Kishan's son being his brother-in-law, it is quite probable that the appellant thought that he would get shelter in his house. His informing Ram Kishan what had happened was, therefore, not improbable. It was also submitted that the explanation that this witness was not available for recording his statement for 20 days cannot be believed. The Investigating Officer has explained that he had summoned this witness but as he was not found his statement could not be recorded before 19.10.78. There is no material to infer that he had not gone to the police station even though he was informed. Evidence of P.W.5 Ram Kishan suffers from no infirmity and we see no reason to interfere with the findings recorded by the Courts below that his evidence is reliable and truthful. His evidence is sufficient to establish the guilt of the appellant."

17. We are alive that an accused can also be convicted and sentenced on the basis of circumstantial evidence provided no link of chain is found missing and all circumstances must lead to the guilt of accused, and if a single link of the chain is missing, in such circumstances, circumstantial evidence cannot be relied upon. Moreover, every link in such like cases should be established through cogent, convincing and reliable evidence and if not, then no conviction could be maintained or awarded to an accused. It is also well settled principle of law that in a case depending upon circumstantial evidence, the prosecution must establish four basic requirements in order to claim conviction. (i) The circumstances from which the conclusions are drawn should be fully established. (ii) All the facts must be consistent with the hypothesis. (iii) The circumstances should be of a conclusive nature. (iv) The circumstances should, to a moral sanctity, actually exclude every hypothesis, but the one proposed to be proved. As per our considered view, the prosecution has established circumstances from which conclusions are drawn through consistent facts which are conclusive in nature by excluding hypothesis warranting maintenance of the impugned judgment.

18. A perusal of prosecution evidence also reveals that convicts-appellants, after occurrence, were seen near the place of occurrence. In this regard, prosecution case is corroborated by evidence of Kamran Nawaz P.W., who deposed that on 27.03.2011, as grandson of Shamshad Hussain, was sick, hence, he along with Shamshad Hussain and his grandson, was going towards Sain Shaira and when they reached stream near of Dhalli Bazaar, they saw Ali Pasha and Muhammad Khalid, at about 10.30pm, who were going upward from the stream. Likewise, Gul Azam, P.W., also supported the prosecution story and stated that he was carrying Muhammad Pervaiz, towards Hospital, at about 50/60 meter away from the place of occurrence he saw in the head-light of vehicle that Ali Pasha and Muhammad Khalid, were fleeing away. In this manner, prosecution has proved its case that convicts-appellants were seen nearby the place of incident, after the occurrence.

19. The recovery of Kalashnikov on the pointation of Muhammad Khalid, convict-appellant, is also corroborated by evidence of prosecution witnesses, Muhammad Sadiq and Muhammad Mumtaz Khan, who deposed that in their presence Kalashnikov, was recovered from the fields of one Sadiq, on the pointation of Muhammad Khalid, convict, on 06.04.2011. The aforesaid witnesses were also cross-examined at length, however, no dent was traced out in their evidence; therefore, prosecution has also proved its case through recovery.

20. The reports of Chemical Examiner and Forensic Science Laboratory, Lahore, also support the prosecution case. In Chemical Examiner report, Articles Nos.1 to 3 were found with blood, whereas in the report of Forensic Science Laboratory, Lahore, it was described that "The crime empty of 7.62mm bore marked as C was examined and compared with test empties prepared from the rifle 7.62mm bore body signed and it was found that the crime empty of 7.62mm bore marked as C HAD BEEN FIRED from the rifle 7. 62mm bore body signed." Therefore, through the aforesaid evidence, convicts-appellants are also connected with the offence of murder.

21. The contention of the learned Counsel for convicts-appellants that Muhammad Zafeer, having knowledge about altercation between Ali Pasha, convict, and Muhammad Pervaiz, deceased, did not disclose about the aforesaid fact till the morning of 29.03.2011, hence, motive for committing murder was not proved, is not tenable. A minute scrutiny of police record reveals that Muhammad Zafeer conductor, made a disclosure before police, on 28.03.2011, wherein, he deposed that Muhammad Pervaiz, 15/20 days ago, demanded money from Ali Pasha and asked him that he was doing business of illegal weapons and wine, but did not return his money, then Ali Pasha, offered him to take Kalashnikov in lieu of money, however, deceased refused to take the Kalashnikov. Thereupon, an altercation took place between Muhammad Pervaiz, deceased, and Ali Pasha, and when deceased warned to convict-appellant, Ali Pasha, that if he did not return his money, he would inform his father and police about his illegal business, upon which, Ali Pasha, extended him life threats. In latter part, of the aforesaid disclosure, he deposed that after three days, Kamran Nawaz, Taxi Driver, came to meet Muhammad Pervaiz, in order to take some amount, as loan, and in his presence an altercation took place between All Pasha and Muhammad Pervaiz, deceased. The relevant portion of his disclosure is as under:-- This means, he disclosed before police about the factum of altercation between Ali Pasha and victim, prior to 29.03.2011. While in police investigation report, i.e. 'Zimni', dated 29.03.2011, Muhammad Zafeer conductor, also made another disclosure before police, wherein, he stated that Muhammad Tahir, came to meet Muhammad Pervaiz, and asked him to give some money, as loan, and in his presence, an altercation took place between Ali Pasha and Muhammad Pervaiz. The relevant portion of his second disclosure dated 29.03.2011, is as under:- Thereafter Muhammad Zafeer, got recorded his statement under section 161,Cr.P.C. before police on 05.04.2011, wherein, he also showed presence of Muhammad Tahir, at the time when altercation took place between deceased and Ali Pasha. It is important to observe here that Muhammad Tahir, is a person, who, after burial of dead body of Muhammad Pervaiz, expressed suspicion regarding involvement of convicts-appellants in the case, before complainant at his home and on the same day i.e. 28.03.2011, his statement under section 161, Cr.P.C. was recorded, who stood witness for the articles recovered from room No.2, i.e. place of occurrence, and later on, he also got recorded supplementary statement under section 161,Cr.P.C. on 29.03.2011. The P.W. stated that he had participated in the Saving Circle System like 'Ballot Committee' with Muhammad Pervaiz, deceased, and 15 days ago, 'Committee' of latter was drawn, hence, he went to see him at Bismillah Hotel about 7/8 days prior to occurrence and demanded some money from him for personal use, who told that committee amount had been spent, however, his some money were with Ali Pasha. At that time, Ali Pasha, was present in the hall of Bismillah Hotel and when Muhammad Pervaiz, demanded money from Ali Pasha, he refused to pay the same till its availability. Thereupon, Muhammad Pervaiz, warned Ali Pasha, that if he would not pay him money, he would tell his father and police about his illegal business of wine and weapons, and then Ali Pasha, extended threats to Muhammad Pervaiz. Likewise, the aforesaid witnesses have also deposed in their Court statements about the factum of an altercation, while they were cross-examined at length by defense, however, nothing could be brought on record to shatter their evidence. In such state of affairs, prosecution has established motive for committing murder of Muhammad Pervaiz, by convicts-appellants.

22. The argument of the learned Counsel for convicts-appellants that nobody saw them while hatching conspiracy and handing over Kalashnikov to Muhammad Khalid, by Ali Pasha, does not convince us. As per record, Muhammad Ayub, P.W., clearly deposed in his statement that he was going to take meal at Khalid Hotel at about 8:30pm, on 27.03.2011, when Ali Pasha and Muhammad Khalid, were sitting on a rooftop of a shop in front of the said Hotel and as soon as he was passing nearby them, he heard that they were talking about Kalashnikov and on seeing him, they became silent. In this manner, it is evident from record that convicts-appellants hatched conspiracy and shared common intention for the commission of murder. Therefore, argument of the learned Counsel for convicts-appellants regarding not hatching conspiracy is turned down.

23. The learned Counsel for convicts-appellants drawn our attention towards site plans and submitted that the place of occurrence, room No.2, is situated at upper storey of Bismillah Hotel, where Muhammad Pervaiz, deceased, was asleep and with him Zafeer conductor, also slept in the same room on another cot, while in front of that room a hall is situated, where, Kamran conductor, was stated to be slept and in another adjacent room Zulfiqar conductor, was also asleep, but it is astonishing that none of the aforesaid persons saw anybody while fleeing away after firing shot. Suffice to observe here that occurrence took place at night hours and as per perusal of record, the aforesaid persons were sleeping at the time of occurrence; therefore, possibility cannot be ruled out that in a sleeping condition they might have not seen anybody while fleeing away after firing shot at Muhammad Pervaiz, hence, manner of occurrence cannot be doubted.

24. As far as arguments of the learned Counsel for convicts-appellants regarding discrepancies in the statements of prosecution witnesses, is concerned, suffice to observe that minor discrepancies are not disadvantageous or detrimental to prosecution case, hence, argument is rejected.

25. The point regarding quantum of sentence requires consideration. The learned Counsel for complainant contended that although it is an unseen occurrence, however, prosecution fully established its case through extra judicial confession and circumstantial evidence, which connects the convicts-appellants with the commission of murder of Muhammad Pervaiz, deceased, hence, they should have been convicted and sentenced to death, as 'Tazir', under section 302(b) instead of section 302(c), A.P.C. Although the impugned judgment does not suffer from any illegality, however, the trial Court while convicting the appellants under section 302(c), A.P.C. has ignored the basic principle of law that the said provision shall apply only to those cases, where according to the injunctions of Islam, the punishment of 'Qisas' is not applicable. It would not be out of place to mention here that the legislatures have divided Qatl-e-Amd into three categories as under:- (a) Qatl-i-Amd which is punishable with death as 'Qisas'; (b) Qatl-i-Amd punishable with death or imprisonment for life as 'Tazir' having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; and (c) Qatl-i-Amd punishable with imprisonment of either description for a term which may extend to twenty five years, where according to the Injunctions of Islam the punishment of 'Qisas' is not applicable. In order to prove charge under section 302, A.P.C., the provisions of section 304, A.P.C. play pivotal role in determining fate of guilt and where evidence as envisaged under the aforesaid section is proved, the accused shall be punished under section 302, Part (a), A.P.C. and sentenced to 'Qisas'. The evidence required under section 304, A.P.C. reads as under:-- (a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; (b) by the evidence as provided in Article 17 of Qanun-e-Shahadat Order, 1984. It is worthwhile to observe here that where an unimpeachable evidence inspiring confidence proving the charge of Qatl-e-Amd has been brought on record, however, not fulfilling the conditions laid down under section 304,A.P.C. as referred above, the accused may be convicted under section 302 Part (b), A.P.C. and sentenced to 'Tazir'. However, where evidence, brought on record, fulfils the requirements of section 304, A.P.C., but sentence of 'Qisas' cannot be enforced because of bar imposed under section 306, A.P.C., the accused be convicted under section 302 Part (c), A.P.C. and sentenced accordingly. The ingredients of section 306, A.P.C. reads as under:--

306. Qatl-e-Amd not liable to 'Qisas':

Qatl-e-amd shall not be liable to 'Qisas' in the following cases, namely; (a) when an offender is a minor or insane; Provided that, where a person liable to 'Qisas' associates himself in the commission of the offence with a person, not liable to 'Qisas' with the intention of saving himself from 'Qisas', he shall not be exempted from 'Qisas'; (b) when an offender causes death of his child or grandchild, how low soever; and (c) when any wali of the victim is a direct descendant, how low soever, of the offender.

26. In the instant case, evidence as required under section 304,A.P.C. has not been brought on record, as it is an unseen occurrence, nor the case falls within the ambit of section 306, A.P.C. therefore, convicts-appellants could not be convicted under section 302(c), A.P.C. rather they should have been convicted under section 302(b), A.P.C. We, therefore, modify the convictions, recorded, under section 302 (c) into section 302(b),A.P.C. However, keeping in view the peculiar facts and circumstances of the instant case, death sentence as 'Tazir' is not awarded and the sentence of life imprisonment as 'Tazir' is awarded under section 302(b), A.P.C. Thus, with the aforementioned modification, the impugned judgment dated 12.01.2015, is maintained.

27. The authorities cited by the learned Counsel for convicts-appellants are distinguishable from the facts and circumstances of the instant case; therefore, do not render any help to them.

28. The crux of above discussion is that both the Appeals, filed by convicts-appellants and complainant, are hereby dismissed. A copy of the instant judgment shall be annexed with other relevant file. The record of the Court below shall be sent back. HBT/9/Sh.C.(AJ&K) Order accordingly.