2025 PLP 857 (YLR)

ROZI KHAN BARRECH, J.

The appellant Muhammad Usman, son of Baz Muhammad, allegedly murdered his father, Baz Muhammad, and mother, Mst. Zardana Bibi at the house of the complainant Muhammad Yaqoob (brother of the appellant) situated at Killi Jungle Sadozai within the precincts of Levies Station Manzai Duki at about 3:00 pm on 19.07.2021. For the commission of the said offence, the appellant was booked in case FIR No. 05 of 2021, registered at the said levies station on 20.07.2021 at 3:30 pm. After a regular trial, the appellant was convicted vide judgment dated 28.09.2022 ('the impugned judgment') passed by learned Additional Sessions Judge Duki ('the trial Court') in Sessions Case No. 15 of 2021 and sentenced to death as Ta'zir and also directed to be hanged by the neck till death subject to confirmation by the High Court.

2. Aggrieved from the impugned judgment, the appellant Muhammad Usman has assailed his conviction and sentence through Criminal Jail Appeal No.61 of 2022, whereas the trial court has sent Murder Reference No. 15 of 2022 for confirmation or otherwise of the death sentence awarded to the appellant Muhammad Usman. Since both the above cases are arising out of one and the same judgment of the trial court, therefore the same are being disposed of through this single judgment.

3. We have heard the learned counsel for the parties and gone through the available records with their valuable assistance. At the very outset, the learned counsel for the pauper appellant, attacked the FIR while saying that the same was lodged with inordinate delay. It is an admitted fact that the alleged occurrence took place on 19.07.2021 at about 3:00 p.m., and the FIR was lodged on 20.07.2021 at about 3:30 p.m., with a delay of one day. The delay in lodging the FIR was fully explained by the prosecution witnesses. According to PW-1 Muhammad Yaqoob, after receiving injuries, the deceased were shifted to Loralai Hospital, and after their burial and other formalities, they lodged the FIR on 20.07.2021. It is worthwhile to mention here that the deceased are the parents of the complainant as well as the appellant, and first, they shifted the deceased to the hospital. It has also come on record that during cross-examination upon PW-1 that they reached at the Civil hospital at 9:00 pm. Risaldar Levies also reached at Civil hospital Loralai at 9:30 pm. The complainant also stated during cross-examination that he gave the report to Risaldar Levies orally. Risaldar Levies Thana Dukki, namely Israr Ahmed (PW-9) stated in his statement that on 19.07.2021, he received information about firing upon the deceased, and thereafter, he proceeded to Loralai Civil hospital and prepared the injury report of the deceased and handed it over to the doctor. He further stated that he also prepared the inquest report of the deceased and handed over the dead bodies to the legal heirs of the deceased. He stated in his statement that on the next date on the written report of the complainant, he lodged the FIR. The Investigation Officer and officials of Levies Thana Dukki were present at the civil hospital Loralai. They prepared all the necessary documents on the day of the occurrence. It is a matter of common knowledge that the area where the incident took place is a remote area, and it was also B-Area, which is within the jurisdiction of the levies thana. Risaldar was the incharge of Levies Thana Dukki. Since the officials of Levies Thana District Dukki received information about the occurrence on the same date and time, it was the duty of Risaldar to have lodged the report promptly, but he did not do so, and the delay only occurred in the registration of the FIR due to negligence of the levies officials. The peculiar facts and circumstances of the case are self-explanatory with regard to the delay in lodging of FIR, and the defense could not succeed in proving any consultation, deliberation, or premeditation on the part of the complainant to falsely charge the appellant in the case. It is impossible in the ordinary course or even not appeal to the prudent mind that the actual and real culprit is let of and instead, an innocent person who also happened to be real brother of the complainant that too in absence of a motive is charged. As regards the plea of delay in lodging of FIR, we would say that it is by now a settled principle of law that mere delay in the lodgment of the FIR shall never be sufficient to believe or disbelieve the contents of the FIR, but the question of guilt or innocence shall always need a required standard of evidence. The promptness or delay will, however, have their relevance as a circumstance which otherwise would not prejudice the liabilities of either side and that of the Court to examine this aspect by holding the scale of justice tight. Reference may be made to the cases of Muhammad Zubair v. State 2007 SCMR 437, Mushtaq Hussain and another v. State 2011 SCMR 45 and Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152.

4. In the instant case, lodging of the FIR with a delay has not been advantageous to the complainant; the complainant party had no enmity with the appellant to involve him falsely by taking advantage of the delay. On the other hand, the conduct and attitude on the part of the complainant appear to be quite natural as the complainant detailed everything in a straightforward manner while recording the FIR, which prima facie attaches truthfulness to such narration, particularly where no benefit/ advantage appears to have been obtained so as to settle any personal score, etc.

5. For the purpose of safe administration of justice, it is essentially required of the Court to satisfy itself whether the eye-witness is natural and his presence on the spot could reasonably be believed, and that whether the testimony is free from any kind of intrinsic improbabilities and in the case of an interested witness whether any corroboration is forthcoming.

6. The Court, in a case involving capital punishment, will not base the conviction of an accused solely on the testimony of an interested witness unless such evidence finds corroboration by some other independent and unimpeachable piece of evidence or circumstances in the case. When the accused is tried on a capital charge, there has to be evidence of unimpeachable character, which must lead to the only inference that the accused is found guilty beyond reasonable doubt.

7. The prosecution case primarily rests on the ocular testimony of complainant Muhammad Yaqoob (PW-1), Agha Muhammad (PW-2), Muhammad Siddique (PW-3), and Muhammad Hussain (PW-4), all sons of the deceased and brothers of the appellant. All of them stated in their statements that on 19.07.2021, they were present in their house situated at Killi Jungle Sadozai at about 3:00 pm when they heard the noise of firing. They came out from their rooms where they witnessed the appellant Muhammad Usman firing at their father and mother, i.e., deceased Baz Muhammad and Mst. Zardana Bibi and both of them sustained injuries and later on, succumbed to the injuries, and the appellant fled away from the place of occurrence. The record revealed that the appellant is the only nominated accused in the FIR by the complainant. He has been attributed the role of effective firing upon the deceased Baz Muhammad and Mst. Zardana Bibi. We have observed that all the above witnesses have given the ocular account of the incident. They were natural witnesses of the occurrence as being inmates of the house, and they were supposed to be present there. Their presence in the house in the given circumstances cannot be doubted. The defense, despite lengthy cross-examination, could not shatter their trustworthy evidence. Not a single suggestion has been put to the said witnesses for sparing the real culprit and substituting him with the appellant. We scanned the evidence of the above witnesses but found that even no previous enmity or any ill will is attributed to the said witnesses. The defense has not challenged the time of the occurrence, the venue, and the manner of occurrence nor alleged any motive to rope in the accused in the case of capital punishment. Although the deceased Baz Muhammad and Mst. Zardana Bibi are the parent of the above witnesses, but it has been settled by the Superior Courts that the mere relationship of the witnesses with the victim would not discard his/her evidence if it is otherwise confidence-inspiring and trustworthy.

8. It may be observed that the medical evidence is in complete harmony with the ocular testimony of PW-1 to PW-4, and no conflict could be pointed out to create a dent in the prosecution case. Dr. Kashif Mehmood (PW-6), Chief Medical Officer D.H.Q Hospital Loralai, produced the medical certificate of the deceased Baz Muhammad as Ex.P/6-A and deceased Mst. Zardana Bibi as Ex.P/6-B, according to which the deceased received injuries by means of firearms.

9. The next piece of evidence, i.e., the confessional statement of the accused recorded under Section 164, Cr.P.C. The main ground weighed with the trial court while convicting the appellant is his own confessional statements; as such, an essential question for consideration, in this case, would relate to the admissibility of the confessions and its evidentiary value for the purpose of conviction and be voluntary or otherwise?

10. It is a trite law that for accepting a confession, two essential requirements must be fulfilled, i.e., the confession was made voluntarily, it was based on the true account of facts, leading to the crime, and the same was proved at the trial. It appears from the record that the appellant was arrested on 09.08.2021, and he was produced before the learned Judicial Magistrate for recording his confessional statement on 10.08.2021. An iota of evidence is not available on record to remotely show that the appellant was subjected to any torture, inducement, or promise. Khan Muhammad learned Judicial Magistrate Dukki, who recorded the confessional statement of the appellant while appearing before the trial court as PW-8, deposed that after fulfilling all the formalities within the meaning of section 364, Cr.P.C. he recorded the confessional statement of the appellant; that sufficient time was given to the appellant to think over his confession. Before recording the confessional statement of the appellant, he answered questions Nos.6, 7, and 9 of the questionnaire, extracts of which are reproduced below:- "Q.

6. Have you been subjected to any torture? Ans. No. Q

7. Have you been forced or induced to record your confession? Ans. No. Q

9. Are you making your confession voluntarily? Ans. Yes. " Replies of the appellant to the aforesaid questions leave no room for any doubt that his confessional statement is involuntarily or the result of torture, force, inducement, or promise. Khan Muhammad the learned Judicial Magistrate (PW-8) had been subjected to lengthy and taxing cross-examination by the defense, but nothing could be extracted from his mouth to prove that the confessional statement of the appellant was the result of force, torture, promise, or inducement. While recording the confessional statement of the appellant, the learned Magistrate has taken all the precautions and had faithfully complied with all the formalities as envisaged under section 364, Cr.P.C. The accumulative effect of all the circumstances leads to only one conclusion that the appellant made true judicial confession voluntarily and without any pressure and is fully involved in this matter, which is corroborated with the ocular evidence of PW-1, PW-2, PW-3, and PW-4, and same can safely be used against the appellant.

11. So far, the recovery of the crime weapon, i.e., the T.T. pistol, from the physical possession of the appellant, is concerned, the prosecution produced Kamil Khan (PW-7), who only produced the photocopy of the recovery memo. of the T.T. pistol taken into possession by the investigation officer in FIR No. 07/2021 lodged under section 13-e of the Arms Ordinance, 1965 as Article P/9 but he did not state a single word in his statement as to where was the alleged pistol recovered from the appellant? The other important witness of the case, i.e., Israr Ahmed Risaldar Levies (PW-9), who conducted the investigation of the case, also did not state a single word in his statement that from where the accused/appellant was arrested and the T.T pistol was recovered from him. The statements of the above two witnesses did not corroborate each other; as such, the alleged recovery of T.T pistol is doubtful.

12. Even otherwise, the alleged occurrence took place on 19.7.2021, and the FIR was lodged on 20.07.2021, and on the same date, eleven crime empties of T.T pistol were also taken into possession by the investigation officer through a recovery memo. in the presence of witnesses. Whereas the crime weapon, i.e., T.T pistol, was allegedly recovered from the appellant on 09.08.2021, which was twenty days after the incident. The prosecution also produced a positive report of the Firearms Expert in Arms Case No. 05/2021, i.e. FIR No. 07/2021, for an offence under section 13-e of the Arms Ordinance 1965 as Ex.P/3-A (copy of the same was not produced in the instant case), according to which parcel No. 1 of T.T pistol and parcel No.2 of eleven crime empties were received on 03.09.2021 together, but the same has been found to be in violation of verdict of the Hon'ble Supreme Court, and this court held that the recovered empties should not be retained by the police for a wait of recovery of crime weapon. Rather, it has been held that sending the empties together with the crime weapon to the ballistic expert makes the entire process suspicious and highly doubtful. In this case, it was obligatory for the investigation officer to have sent the eleven crime empties recovered from the place of occurrence as soon as possible without delay to FSL and without waiting for recovery of the crime weapon. More so, it is apparent from the record that the crime empties were secured from the crime scene on 20.07.2021 on the next day of the murder of the deceased, but the same were retained in possession, whereas the crime weapon was allegedly recovered on 09.08.2021, whereafter the empties and alleged crime weapon were sent together along with empties to the FSL for ballistic analysis, which has diminished its evidentiary value because it gives rise to manipulation and padding. Therefore, the Firearms Expert report in this regard is inconsequential to the prosecution case.

13. Even if the recovery of the alleged crime weapon from the accused is excluded from consideration, it has been observed that direct evidence in the form of ocular account furnished by PW-1 PW-2, PW-3, and PW-4, is inspiring confidence, which is supported by the medical evidence and confessional statement of the appellant.

14. We have no hesitation to hold that the prosecution has been successful to prove its case against the appellant, Muhammad Usman beyond a reasonable doubt, and the conviction recorded against the appellant is based on correct appreciation of evidence, which does not call for any interference.

15. Now, coming to the sentence awarded to the appellant under section 302(b), P.P.C., on assessment of evidence, we also found that the motive has not been proved by the prosecution against the appellants; we have observed that the motive set up by the prosecution was quite vague as such the motive for the occurrence was not established from the record. The question of what happened immediately prior to the incident, or what prompted the appellant to take away the life of his father, i.e., the deceased Baz Muhammad and mother Mst. Zardana Bibi are the circumstances as mitigating circumstances.

16. It is a well-recognized principle by now that the question of the quantum of the sentence requires utmost attention and thoughtfulness on the part of the Courts. In this regard, we respectfully refer to the case of Mir Muhammad alias Miro v. The State (2009 SCMR 1188) wherein the 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." Moreover, 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, which had resulted in the death of Baz Muhammad and Mst. Zardana Bibi (both deceased), therefore, in our view, the death sentence awarded to the appellant is quite harsh. It has been held in a number of judgments of the August Supreme Court of Pakistan that if a specific motive has been alleged by the prosecution, then it is the 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.

17. In the light of the above discussion, the conviction of the appellant, namely Muhammad Usman, son of Baz Muhammad, as awarded by the trial court through the abovementioned judgment, is maintained, but the sentence of death awarded to the appellant, namely Muhammad Usman, son of Baz Muhammad (deceased) under section 302(b), P.P.C. is altered to imprisonment for life with direction to pay Rs.500,000/- (rupees five lacs) each to the legal heirs of the deceased in default whereof the appellant shall further undergo six months' S.I. Consequently, with the above modification in the sentence of the appellant, Muhammad Usman, son of Baz Muhammad, Criminal Jail Appeal No.61 of 2022, is hereby dismissed. The Murder Reference No. 15 of 2022 is answered in the NEGATIVE. The death sentence awarded to the appellant Muhammad Usman, son of Baz Muhammad, is not confirmed. JK/27/Bal. Appeal allowed.