2021 PLP 127 (YLRN)

SADIQ MAHMUD KHURRAM, J.

Muhammad Zia-ur-Rehman son of Muhammad Riaz (convict) was tried by the learned Additional Sessions Judge, Talagang, District Chakwal along with his co-accused namely Muhammad Zeeshan and Yasir Iqbal (both since acquitted) in case FIR No. 29 of 2014 dated 15.02.2014 registered at Police Station Saddar Talagang, District Chakwal, in respect of offences under sections 302 and 34, P.P.C. for committing the Qatl-i-Amd of Ghulam Shabbir son of Mian Mureed (deceased). The learned trial court vide judgment dated 25.04.2018, convicted Muhammad Zia-ur-Rehman son of Muhammad Riaz (convict) and sentenced him as infra: Muhammad Zia -ur-Rehman son of Muhammad Riaz: Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Ghulam Shabbir son of Mian Mureed (deceased) and directed to pay Rs.500,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment for each default. The convict was ordered to be hanged by his neck till dead. Muhammad Zeeshan and Yasir Iqbal, the co-accused of the convict were however acquitted by the learned trial court.

2. Feeling aggrieved, namely Muhammad Zia-ur-Rehman son of Muhammad Riaz (convict) lodged Criminal Appeal No.485 of 2018 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.29 of 2018 under section 374, Cr.P.C. seeking the confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Zia-ur-Rehman son of Muhammad Riaz (appellant). We intend to dispose of the Criminal Appeal No. 485 of 2018 and the Murder Reference No.29 of 2018 through this single judgment.

3. Precisely, the facts necessary, as divulged through the statement of Mian Mureed (PW-7), the complainant of the case, are as under:- "Stated that, on 15.02.2014, I along with my brothers Ghulam Khizar and Ghulam Fareed were cutting 'sursoon' from the wheat crop in front of our house. In the meanwhile, my son Ghulam Shabeer also reached there. At about 12:00 noon, a Vigo dala of brown color bearing No.ZS-1 came from Talagang side and stopped on side of the road in front of us. The Vigo dala was driven by accused Yasir facing trial in this Court and accused Zia ur Rehman present in the Court was sitting on the front seat. Accused Zia ur Rehman while sitting in the Dala called my son Ghulam Shabeer loudly and the moment my son reached near the vehicle upon his call, accused Zia ur Rehman dismounted from the vehicle while he was holding a weapon looking like a 'kalashnikov' and he made a brust fire at my son and the bullets hit different parts of the body of my son Ghulam Shabeer. My son fell down after sustaining firearm injuries. Then accused Zia ur Rehman boarded the vehicle and accused Yasir drove the vehicle fastly towards village Bilalabad. I along with my brothers took Ghulam Shabeer to THQ Hospital Talagang in very serious condition but my son Ghulam Shabeer succumbed to the injuries. The occurrence was witnessed by me and my brothers Ghulam, Khizar and Ghulam Fareed. The motive behind the occurrence was: accused Zia ur Rehman and my son Ghulam Shabeer were close friends; accused Zia ur Rehman borrowed, an amount of Rs. 15-lac from my son for his business and for repaying the loan, the accused Zia ur Rehman gave three cheques to my son and original cheques are lying with me even now; accused Zia ur Rehman kept on dilly-dallying for repayment of the loan amount; in February, 2014, hot words were exchanged between accused Zia ur Rehman and my son and their relations became strained; my son Ghulam Shabeer warned the accused about legal proceedings against him and the accused promised to pay the amount on 15.02.2014 but the accused, instead of paying the amount, murdered my son on that day; The reason for murder of my son by the accused was dispute about repayment of the loan. After the occurrence, I have filed the civil suit for recovery of the amounts of the cheques. On receiving the information about the occurrence, the police reached THQ Hospital, Talagang and recorded my statement which is Exh.PJ and my signatures thereon are Exh.PJ/1. The police inspected the dead body and sent for postmortem. Then, police along with us went to the place of occurrence. One Ameer Haider was then present at the place of occurrence and he told the police that he had seen accused Zeeshan present in the Court while mounting the vigo dala' near village Bilalabad along with the co-accused. During investigation, I handed over three original cheques to the police and the police got them photocopies and then returned the original copies of cheques to me. The photocopies of three cheques mark-A, mark-B and mark-C are part of the record. "

4. After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the appellant namely Muhammad Zia-ur-Rehman son of Muhammad Riaz along with Muhammad Zeeshan and Yasir Iqbal (both since acquitted) was sent to face trial. The learned trial court framed the charge against the accused on 12.05.2014, to which the accused pleaded not guilty and claimed trial.

5. The prosecution in order to prove its case, got statements of as many as thirteen witnesses recorded. The ocular account of the incident was furnished by Mian Mureed (PW-7) and Ghulam Khizer (PW-8). Muhammad Ramzan 24/HC (PW-1) stated that on 15.02.2014 Muhammad Sharif, S.I. (PW-10) handed over to him two sealed parcels said to contain blood stained earth and empties which on 22.02.2014 he handed over the same to Ghulam Ghous 587/LHC (PW-2) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Ramzan 24/HC (PW-1) further stated that on 04.04.2014 Muhammad Sajjad, S.I. (PW-11) handed over to him one sealed parcel said to contain a rifle which on 07.04.2014 he handed over the same to Ghulam Ghous 587/LHC (PW-2) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Saqib Naseer, draftsman (PW-3) prepared the scaled site plan of the place of occurrence (Exh. PB). Muhammad Javed 659/C (PW-4) stated that on 24.02.2014 Muhammad Sharif S.I. (PW-10), the Investigating Officer of the case, took into possession the vehicle bearing registration No. ZS-1 (P-4) which was parked on a road. Muhammad Din (PW-6) stated on 15.02.2014 that the Investigating Officer of the case collected the blood-stained earth and empties from the place of occurrence. Saleem Iqbal (PW-9) stated that on 15.02.2014 he identified the dead body of the deceased namely Ghulam Shabbir at the time of its post mortem examination and on 04.04.2014 the appellant namely Muhammad Zia-ur-Rehman led to the recovery, of the rifle (P-7). Kazim Hussain S.I. (PW-12) stated that on 15.02.2014 he recorded the formal FIR (Exh.PJ/1). Muhammad Ilyas Yaseen (PW-13) stated that he had brought the record of the Punjab Forensic Science Agency, Lahore and the document (Exh. PX) was the correct copy of the report as issued by the Punjab Forensic Science Agency, Lahore with regard to the analysis of empties and the rifle. Muhammad Sharif, S.I. (PW-10) investigated the case from 15.02.2014 till 14.03.2014 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Muhammad Sajjad, S.I. (PW.-11) investigated the case from 16.03.2014 till 15.04.2014, arrested the appellant on 26.03.2014 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

6. The prosecution also got Dr. Nazir Ahmad (PW-5) examined, who on 15.02.2014 was posted as Medical Officer at THQ Hospital, Talagang, District Chakwal and on the same day conducted the postmortem examination of the dead body of Ghulam Shabbir son of Mian Mureed (deceased). Dr. Nazir Ahmad (PW-5), on examining the dead body of Ghulam Shabbir son of Mian Mureed (deceased) observed as under: "1) Wound of entry 9mm X 9mm on the front of left chest close to sternum 8 cm from left nipple in the 6th intercostal space. 2) Exit wound 2cm X 3cm on the back of left chest on the outer side of left chest 5cm from the inferior angle of left shoulder. 3) An entry wound measuring 9mm X 9mm on front of right chest lower part and upper part of right abdomen 8cm from mid line. 4) An exit wound 2cm X I cm on the back of right abdomen lower part close to mid line 2cm away. 5) An entry wound 9mm X 9mm on the front of upper part of left arm 9cm from shoulder. 6) An exit wound 2 cm X 2.5 cm on the back and upper part of left arm 10 cm from left shoulder. Opinion In my opinion the death occurred due to injuries Nos.1 and 2 which injured lungs, heart and 3 and 4 injured intestine and kidney adding to miseri. In ordinary course of nature, injuries Nos.1, 2, 3 and 4 collectively were sufficient to cause death. After the postmortem examination I handed over to the constable stitched dead body, last worn clothes, postmortem report Exh.PF along with pictorial diagram Exh.PF/1-2 and relevant police papers, duly signed by me."

7. On 23.12.2017, the learned ADPP gave up the prosecution witnesses namely Imtiaz Hussain,527/C, Muhammad Saeed, Zaheer Ahmad and Ghulam Farid as being unnecessary and closed the prosecution evidence after tendering in evidence the cheque (Exh. PR), the cheque (Exh. PS), the cheque (Exh. PD), the certified copy of the suit (Exh. PU), the certified copy of the written statement (Exh.PV), the order regarding the custody of the vehicle passed by the learned Magistrate (Exh. PY), the report of Punjab Forensic Science Agency, Lahore regarding the comparison of empties and the recovered Pistol (Exh.PX) and the report of Punjab Forensic Science Agency, Lahore regarding the blood stained earth (Exh.PW).

8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Zia -ur-Rehman son of Muhammad Riaz under section 342, Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he was innocent and had been present in the city of Karachi at the time of occurrence. The appellant namely Muhammad Zia -ur-Rehman son of Muhammad Riaz opted not to get himself examined under section 340(2), Cr.P.C., however, got Mansoor Saqib Malik (DW-1), Muhammad Sibtain Ameer (DW-2), Sheikh Tahir Yousaf (DW-3), Abid Hussain (DW-4), Noor Zaman (DW-5) and Muhammad Akram (DW-6) examined as witnesses in his defence.

9. On the conclusion of the trial, the learned Additional Sessions Judge, Talagang, District Chakwal, convicted and sentenced the appellant as referred to above.

10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false and that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant in support of this appeal, further contended that the story of the prosecution mentioned in the FIR, on the face of it, was highly improbable and the reason assigned by the complainant and the eye-witnesses for being present at the place of occurrence was without any justification. He further contended that the statements of Mian Mureed (PW-7) and Ghulam Khizer (PW-8) were not worthy of reliance. The learned counsel for the appellant further argued that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant submitted that the learned trial court, while disbelieving the same evidence, had acquitted Muhammad Zeeshan and Yasir Iqbal, the co-accused of the appellant and the conviction awarded to the appellant on the basis of same evidence was not justified. Learned counsel for the appellant also argued that the plea of alibi taken by the appellant was wrongly rejected by the learned trial court. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a doubt.

11. On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution proved its case beyond the shadow of a doubt by producing independent witnesses. The learned counsel further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements of Mian Mureed (PW-7) and Ghulam Khizer (PW-8). They further argued that the recovery from the appellant also corroborated the ocular account. They contended that there was no occasion for the prosecution witnesses to substitute the real offender with the innocent in this case. Lastly, they prayed for the rejection of the appeal.

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

13. The whole prosecution case orbits around the statements of Mian Mureed (PW-7) and Ghulam Khizer (PW-8). These witnesses namely Mian Mureed (PW-7) and Ghulam Khizer (PW-8) were related to each other and the deceased. Their relationship with the deceased is on record. The deceased namely Ghulam Shabbir son of Mian Mureed was the son of Mian Mureed (PW-7) and the paternal nephew of Ghulam Khizer (PW-8). Mian Mureed (PW-7) and Ghulam Khizer (PW-8) both explained their presence at the place of occurrence categorically. We have noted that the prosecution witnesses namely Mian Mureed (PW-7) and Ghulam Khizer (PW-8), in a very natural and forthright manner, narrated the incidence and gave each and every detail of the same. More importantly, the occurrence took place inside the agricultural land belonging to Mian Mureed (PW-7), Ghulam Khizer (PW-8) and the deceased at about 12.00 p.m.(noon) and the presence of Mian Mureed (PW-7) and Ghulam Khizer (PW-8) at that time, inside their own agricultural land, just in front of their houses, cannot be doubted and was, but natural. Both the witnesses namely Mian Mureed (PW-7) and Ghulam Khizer (PW-8) explained their arrival at the place of occurrence and also the reason for their presence there. Both the witnesses namely Mian Mureed (PW-7) and Ghulam Khizer (PW-8) explained that they were present at the place of occurrence since 11.30 a.m. Mian Mureed (PW-7) during cross-examination stated as under:- "I left the house for the field at about 11:30 am. Shabeer reached the field 20/25 minutes after my arrival. I and my two brothers went to the fields together. We were weeding out 'sarsoon' with hands." In a similar manner, Ghulam Khizer (PW-8) during cross-examination also explained his arrival at the place of occurrence and stated as under:- "My house is situated at a distance of 50/60-karams on the southern side from the place where we were present at the time of occurrence . We three brothers, eye-witnesses, left our house at about 11.30 am for the land to hew 'sarsoon'. We were weeding out 'sarsoon' from wheat crop. We reached the land within five minutes from our house. Ghulam Shabeer deceased reached the land from his house 20/25 minutes after our reaching there. Before Ghulam Shabeer reached there. We had weeded out about three bundles of the 'sarsoon'. Both the witnesses namely Ghulam Khizer (PW-8) and Mian Mureed (PW-7) also explained that before the occurrence they were present in their agricultural land and were engaged in weeding out "Sarsoon" plants from their wheat crop. Both the witnesses namely Ghulam Khizer (PW-8) and Mian Mureed (PW-7) also explained that they had shown Muhammad Sharif, S.I. (PW-10), Investigating Officer of the case, the said weeded out plants at the time of his visit at the place of occurrence. Muhammad Sharif, S.I. (PW-10), the Investigating Officer of the case, stated that during his investigation he had recorded and verified the fact that the witnesses prior to the occurrence were present in their agricultural land and were engaged in weeding out "Sarsoon" plants from their wheat crop. Muhammad Sharif, S.I. (PW-10), the Investigating Officer of the case, during cross-examination stated as under:- "It is also mentioned by me in the brief facts recorded in the inquest repo as well as the same recorded by me while starting my case diary No.01 of this case that complainant and the eye-witnesses were cutting mustard plant from their wheat crops when the occurrence took place." Both the witnesses also explained that the occurrence took place in the cultivated land owned by them and situated just outside their houses. Ghulam Khizer (PW-8) further explained during cross-examination as under:- " My house is situated adjacent to that of the deceased. The place where we were present at the time of occurrence is owned by complainant, myself and Ghulam Farid commonly and is self cultivated." We have also perused the scaled site plan of the place of occurrence (Exh. PB) as prepared by Saqib Naseer, draftsman (PW-3) and the rough site plan of the place of occurrence (Exh. PL) as prepared by Muhammad Sharif, S.I. (PW- 10), the Investigating Officer of the case. The perusal of the said site plans of the place of occurrence (Exh. PL and Exh. PB) reveals that the presence of the witnesses has been clearly marked in the same and it has been mentioned in the same that the occurrence took place in the land adjacent to the road leading towards the house of Mian Mureed (PW-7), the complainant of the case. Saqib Naseer, draftsman (PW-3) during cross-examination explained as under:- "The spaces on the east-west of the passage shown in the site plan leading to the house of Mian Mureed complainant were fields." This evidence proves that not only both the witnesses Mian Mureed (PW-7) and Ghulam Khizer (PW-8) were present at the place of occurrence at the time of occurrence but they had also witnessed the occurrence which had taken place inside their own cultivated land. The perusal of the statements of the prosecution witnesses also reveals that no barrier existed between the appellant and the witnesses which could have caused any hurdle in enabling the witnesses to view the occurrence. There existed no hindrance between the appellant and the line sight of the witnesses. The defence could not prove that the said witnesses namely Mian Mureed (PW-7) and Ghulam Khizer (PW-8) were not present at the place of occurrence at the time of occurrence. The appellant was previously known to both the witnesses namely Mian Mureed (PW-7) and Ghulam Khizer (PW-8) and his identification by the witnesses in the circumstances cannot be doubted or even put to question with any success. We have scrutinized the evidence of Mian Mureed (PW-7) and Ghulam Khizer (PW-8) and find that they were proved to be truthful witnesses and implicit reliance can be placed upon their statements as against the appellant. There is no evidence on record that Mian Mureed (PW-7) and Ghulam Khizer (PW-8) were motivated by any enmity to depose against the appellant. As mentioned above, no friction between the appellant and the witnesses namely Mian Mureed (PW-7) and Ghulam Khizer (PW-8) existed prior to the occurrence which could have interested Mian Mureed (PW-7) and Ghulam Khizer (PW-8) to get the appellant involved in this occurrence falsely. Mian Mureed (PW-7) and Ghulam Khizer (PW-8) were subjected to lengthy cross-examination but the defence had failed to make cracks in their deposition with regard to the appellant and the veracity of their statements has been proved. The august Supreme Court of Pakistan in the case of "Ghulam Ali and another v. The State" (2002 SCMR 1205) held as under:- "As reflected from the ocular account the occurrence had taken place in front of main gate of the house of the complainant. They are natural witnesses and their presence at the place of incident cannot be doubted in any manner." Mian Mureed (PW-7) and Ghulam Khizer (PW-8) by no stretch of the imagination, can be declared as chance witnesses, as pressed time and again by the learned counsel appearing on behalf of the appellant, because they have rendered a plausible justification for their presence at the place of occurrence. During the course of the investigation, Muhammad Sharif, S.I. (PW-10), the Investigating Officer of the case, also collected the blood-stained earth from the place of occurrence and took the same into possession through recovery memo. The report of the Punjab Forensic Science Agency, Lahore (Exh. PW) establishes that the said blood taken from the place of occurrence was of human origin. The place of occurrence was further established by the rough site plan (Exh. PL) as prepared by Muhammad Sharif, S.I. (PW-10) and the scaled site plan of the place of occurrence (Exh. PB) as prepared by Saqib Naseer, draftsman (PW-3). As the occurrence in question had inside the land of the witnesses namely Mian Mureed (PW-7), Ghulam Khizer (PW-8) and the deceased and the same, therefore, could not have gone un-witnessed nor could have the culprit escaped unnoticed. The appellant was proved to be present near the witnesses, thus, it would not have been difficult for the complainant party to identify the present appellant. Mian Mureed (PW-7) and Ghulam Khizer (PW-8), being the real father and the paternal uncle of the deceased respectively, had no reason to falsely implicate the appellant in the commission of the offence by substituting him and letting off the real culprits. There is no such material available on record which would indicate substitution of the appellant in the case with the real culprit. Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of Irshad Ahmad and others v. The State and others (PLD 1996 SC 138). The appellant has not been able to establish any animosity of the complainant or the police for his false involvement in the case. Mian Mureed (PW-7) and Ghulam Khizer (PW-8), in a straightforward manner, held the appellant responsible for the murder of Ghulam Shabbir son of Mian Mureed (deceased). Mere relationship of the prosecution witnesses with the deceased and inter se is not sufficient to discredit their testimony. In this regard, reference is made to the judgment in the case titled as Ijaz Ahmad v. The State (2009 SCMR 99) wherein the august Supreme Court of Pakistan was pleased to observe as under:-- "In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relation-ship with the deceased, would not let go the real culprit or substitute an innocent person for him."

14. As mentioned above, the occurrence in question had admittedly taken place in broad daylight and the same, therefore, could not have gone un-witnessed nor could have the culprit escaped unobserved. As it was a broad daylight occurrence and because of the previous acquaintance of the parties, the question of misidentification does not arise. Furthermore, the occurrence, in this case, took place in the daytime at about 12.00 p.m. (noon) which was reported by the complainant of the case namely Mian Mureed (PW-7) at 1.45 p.m., when the oral statement (Exh. P.J) of Mian Mureed (PW-7) was recorded by Muhammad Sharif, S.I. (PW-10), the Investigating Officer of the case, on the day of occurrence, inside the THQ Hospital Talagang. On the basis of the oral statement (Exh. PJ) of the complainant of the case namely Mian Mureed (PW-7), the formal FIR (Exh.PJ/1) was registered at 2.00 p.m. by Kazim Hussain, S.I. (PW-12), when the distance between the place of occurrence was 11 kilometres and the complainant had suffered the traumatic and tragic loss of life of his adult son. Both the witnesses namely Mian Mureed (PW-7) and Ghulam Khizer (PW-8) explained during cross-examination that after the occurrence they immediately shifted the deceased to the hospital. Mian Mureed (PW-7) during cross-examination stated as under:- "I remained present at the place of occurrence 3 / 4 minutes after the occurrence. We used the main road for reaching Talagang from the place of occurrence. It may have taken 10 minutes in reaching Sadique Abad chowk from the place of occurrence and further 10/15 minutes in reaching the hospital." Ghulam Khizer (PW-8) during cross-examination explained as under:- "We shifted the deceased on shehzoor vehicle after getting the same from our house. My paternal nephew Ghulam Jahangir had brought the shehzoor at the spot on our asking loudly. .. . Ghulam Jahangir got the shehzoor vehicle along with a cot within 2/3 minutes. We three eye-witnessed picked up and placed Ghulam Shabeer on the cot. Our hands and clothes were also stained with blood. I along with two eyes-witnesses and Jahangir rushed the deceased to the hospital without wastage the time. The deceased was un-conscious on the way but his body was hot. However, when we reached the hospital, a doctor told that he had died." Thus, it is apparent that the FIR (Exh.PJ/1) was got lodged within a short duration and the complainant not only named the appellant but also mentioned each and every minor as well as material fact of the incident therein, which of course excludes the possibility of pondering or planning regarding the false implication of the appellant in the instant case. The details of the occurrence have been elaborately explained in the FIR (Exh.PJ/1). The promptitude in reporting the matter to the police also establishes that the eye-witnesses could not have developed a false narrative regarding the occurrence, in which the son of the complainant had died, in such a short time. In this regard, reference is made to the judgment in the case titled as "Muhammad Waris v. The State" (2008 SCMR 784) wherein the August Supreme Court of Pakistan was pleased to observe as under:-- "The names of the said two eye-witnesses could not have been mentioned in such a promptly lodged FIR if they had not been with the deceased persons at the time of their death." We have also noted that as per column No.11 of the inquest report (Exh. PD), relating to Ghulam Shabbir son of Mian Mureed (deceased), at the time of preparation of the same, the blood of the deceased had not coagulated at that time. This also proves that the matter was reported to the police with promptitude by the witnesses. We have also noted that as per column No.8 of the inquest report (Exh. PD), relating to Ghulam Shabbir son of Mian Mureed (deceased), at the time of preparation of the same, the eyes and mouth of the deceased were also closed and had the deceased met his death in absence of the witnesses, then his eyes and mouth would not have been found closed. It is correct that it is a tradition in Pakistan that after the death, people immediately close the eyes and mouth of the deceased. Thus, the closed eyes of the deceased further prove the prosecution's version regarding the presence of the witnesses at the place and time of occurrence.

15. The medical evidence produced by the prosecution in the case proved that the deceased had received the fatal injuries with a firearm weapon on the vital parts of the body and he succumbed to the said injuries. The medical evidence fully supports the ocular account. The probable time between the death of Ghulam Shabbir (deceased) and the conducting of the postmortem examination as noted by Dr. Nazeer Ahmad (PW-5) was about two hours, which coincides with the time of occurrence as mentioned by the witnesses namely Mian Mureed (PW-7) and Ghulam Khizer (PW-8). The post-mortem examination of the dead body of Ghulam Shabbir (deceased) had been conducted quite promptly at 3.00 p.m. when the occurrence had taken place at about 12.00 p.m. (noon), leaving no room for deliberations or fabrication of a story. All the necessary documents were also provided to Dr. Nazeer Ahmad (PW-5), prior to conducting of post mortem examination of the dead body of Ghulam Shabbir (deceased). This promptitude in conducting the post mortem examination of the dead body of the deceased namely Ghulam Shabbir establishes that the matter was reported to the police immediately and spontaneously with regard to the appellant. Furthermore, Dr. Nazeer Ahmad (PW-5), on examining the dead body of Ghulam Shabbir son of Mian Mureed (deceased) observed an entry wound of the dimension of 9mm X 9mm present on the front of left chest, close to sternum, 8 cm from the left nipple in the 6th intercostal space, on the dead body of the deceased and also observed another entry wound of the dimension of 9mm X 9mm present on the front of the right lower part and upper part of the right abdomen, 8cm from the midline, on the dead body of the deceased and another entry wound of the dimension of 9mm X 9mm present on the front of the upper part of left arm, 9cm from the shoulder of the deceased. Dr. Nazeer Ahmad (PW-5) opined that all the said entry wounds had been caused by the use of a firearm weapon. Dr. Nazeer Ahmad (PW-5) also stated that all the said injuries observed on the person of the deceased were sufficient to cause his death in the ordinary course of nature as they had caused substantial damage to the vital organs of the deceased. The appellant has been saddled with responsibility of causing the said fatal injuries. Ghulam Khizer (PW-8) during cross-examination was questioned with regard to the role of the appellant in the occurrence and he replied as under:- "The deceased was of about 6-feet height. Accused Zia ur Rehman fired at the deceased after deboarding from the vehicle and taking two steps forward. Ghulam Shabeer was facing towards east when we received the burst of fire shots. Zia ur Rehman accused was then facing towards west. The place where accused Zia ur Rehman was standing and the place where the deceased was standing were at the same level. The height of accused Zia ur Rehman looks to be about five feet and seven inches. .. To me, burst means automatic flow of projectile from the automatic firearm weapon in one go." In this manner, the ocular account is fully corroborated by the medical evidence available on record. In view of the above discussion, it is ascertained that the intent of the appellant was to cause death and that he is guilty of Qatl-i-Amd of Ghulam Shabbir son of Mian Mureed (deceased).

16. The learned counsel for the appellant has also argued that the learned trial court had wrongly rejected the evidence produced by the appellant namely Muhammad Zia-ur-Rehman with regard to his plea of alibi. The word 'alibi' is a Latin expression which means and implies in common acceptation 'elsewhere'. It is a defence based on the physical impossibility of participation in a crime by an accused by placing the latter in a location other than the scene of the crime when an offence was committed. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Pakistan Penal Code, 1860 or any other law. It is only a rule of evidence recognized in Article 24 of the Qanun-e-Shahadat 1984 that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context: "(a) The question is, whether A committed a crime at Peshawar on a certain day. The fact that, on that day, A was at Lahore is relevant. The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant". It is a basic law that in a criminal case, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases needs to be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. On assumption of the factum of the evidence being otherwise truthful, there appears to be some difficulty, however, in the matter of acceptance of submission of the learned counsel for the appellant namely Muhammad Zia-ur-Rehman. When the presence of appellant namely Muhammad Zia-ur-Rehman at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. When a plea of alibi is taken by the accused, the burden is upon him to establish the same by positive evidence after onus, as regards presence on the spot, is established by the prosecution. According to the learned counsel for the appellant, the appellant namely Muhammad Zia-ur-Rehman had taken the defence of alibi and in that regard, he had examined the witnesses from D.W.4 to D.W.6, however, their evidence was not believed by the learned trial court. We have scrutinized the evidence adduced by the appellant namely Muhammad Zia-ur-Rehman to prove his plea of alibi. The appellant got Abid Hussain (DW-4), Noor Zaman (DW-5) and Muhammad Akram (DW-6) examined who all stated that on the day of occurrence the appellant namely Muhammad Zia-ur-Rehman was present with them in the city of Karachi. We have noticed that the appellant did not produce any documentary evidence to support the claim that on the day of occurrence he was present in the city of Karachi. Although the defence witnesses namely Abid Hussain (DW-4), Noor Zaman (DW-5) and Muhammad Akram (DW-6) admitted that they had their mobile phone devices with them, however, none of them produced the Call Data Record (CDR) of the said mobile devices under their use so as to establish their presence in the city of Karachi on the day of the occurrence. Abid Hussain (DW-4) during cross-examination stated as under:- " I have my mobile phone with me today. As I am present in Talagang today, therefore, the location of my mobile phone will be some mobile phone tower of Talagang. I have not got recorded the mobile phone numbers of my mobile phone or that of Akram or Noor Zaman. The mobile phone number of accused Zia-ur-Rehman was 0321-3333952. I, or Zia-ur-Rehman neither produced nor asked the I.O. to get the date of my mobile phone and of Zia-ur-Rehman accused for ascertaining our presence in Karachi on 14/15.02.2014." Furthermore, no independent ,relevant and admissable evidence was produced to establish that the appellant had a meal along with the defence witnesses namely Abid Hussain (DW-4), Noor Zaman (DW-5) and Muhammad Akram (DW-6) at a restaurant at Karachi. Even the name of the said restaurant has not been mentioned by any of the defence witnesses. Obviously, neither the owner nor any server available at the said restaurant was either produced before the learned trial court or the Investigating Officer to vouch for the claim of the appellant. We have also noticed that Abid Hussain (DW-4) claimed that he drove the vehicle belonging to the appellant on the day of occurrence, however, admitted that he did not produce any documents before the investigation officer with regard to the ownership of the vehicle or the fact that he possessed a license to drive any vehicle. Abid Hussain (DW-4) also stated that he did not remember whether he joined the investigation of the case or not. Abid Hussain (DW-4) also stated that the affidavit containing his statement was got prepared by the father of the appellant. Abid Hussain (DW-4) during cross-examination stated as under:- "I came to the "Katchery" along with the father of the accused Zia-ur-Rehman who got the affidavits prepared and I signed the same." Noor Zaman (DW-5) also claimed that he met the appellant on the day of occurrence in the city of Karachi, however, failed to prove the said fact. Noor Zaman (DW-5) during cross-examination admitted that he did not produce any evidence before the Investigating Officer of the case that he had a valid license for driving any vehicle. Noor Zaman (DW-5) candidly admitted that he had made improvements in his previous statement while appearing before the learned trial court and stated as under:-- "I had not got incorporated in my affidavit that we had taken meal with Zia-ur-Rehman accused on 14.02.2014. I had not mentioned in my affidavit that we loaded the trailer on 15.02.2014. I had also not mentioned in my affidavit that on 15.02.2014, I, Abid, Akram and Zia-ur-Rehman accused went to the hotel where other three except me took the meal." Muhammad Akram (DW-6) claimed that he had taken a meal with the appellant only on 14.02.2014 and not on 15.02.2014 as was claimed by the other two defence witnesses namely Abid Hussain (DW-4) and Noor Zaman (DW-5) and also admitted that he had made improvements in his previous statement while appearing before the learned trial court and stated as under:- "I had not got recorded in my affidavit Exh.DQ that accused Zia-ur-Rehman was owner of trailer No.Z-5121. I had not got recorded in my affidavit Exh. DQ that Noor Zaman and Abid were also with me at 12:00 noon on 15.02.2014 in the hotel. I did not mention in affidavit Exh.DQ the number of the trailer No. 552 and who was owner and driver of the same. I did not mention in affidavit Exh.DQ that there was a co-driver with me on the above mentioned trailer. I did not mention in affidavit Exh.DQ that I knew Abid and Noor Zaman DWs. .. I had not got recorded in Exh.DQ about ailment of Noor Zaman DW and offer by accused Zia-ur-Rehman to accompany Abid on the trailer as co-driver." Thus it is concluded that the appellant namely Muhammad Zia-ur-Rehman failed miserably to prove his plea of alibi. The august Supreme Court of Pakistan in the case of Muhammad Hanif v. The State (2000 SCMR 1805) has held as under:- "The learned Judge of the High Court has not given any cogent reason and ground for believing the plea of the alibi raised by Muhammad Hafeez considering that the accused raising plea of alibi has to discharge the burden by producing satisfactory, reliable and authenticated evidence that his presence at the place of incident at the relevant time was not possible because of his presence at the relevant time at another place. Reference may be made to Ameenullah v. State (PLD 1976 SC 629), Muhammad Ayub v. State (PLD 1964 Peshawar 288 (F. B), and Azhar Hussain v. State (1983 SCMR 978). Mere production of the attendance register, which was not properly maintained and unaccompanied with a certificate of any responsible officer of the department could not be termed to be reliable, satisfactory and authenticated evidence to believe the plea of alibi of the acquitted accused".

17. So far as the contention raised by the learned counsel for the appellant that the learned trial court while disbelieving the same evidence has acquitted Muhammad Zeeshan and Yasir Iqbal, the co-accused of the appellant Muhammad Zia-ur-Rehman and the conviction awarded to the appellant on the basis of same evidence is not justified, is concerned, we have observed that the learned trial court has rightly acquitted the said co-accused of the appellant. The prosecution witnesses namely Mian Mureed (PW-7) and Ghulam Khizer (PW-8) did not assign any role to Muhammad Zeeshan and Yasir Iqbal, the co-accused of the appellant, both since acquitted, of causing any injury on the person of the deceased namely Ghulam Shabbir. The prosecution did not allege any motive of committing the occurrence as against Muhammad Zeeshan and Yasir Iqbal, the co-accused of the appellant, both since acquitted, during the course of the trial. During the investigation of the case, nothing was recovered from the possession of the said Muhammad Zeeshan and Yasir Iqbal, the co-accused of the appellant, both since acquitted. Muhammad Zeeshan (since acquitted) was not even named as an accused in the FIR and was involved in the case on the statement of one Ameer Haider, however, the said Ameer Haider did not appear before the learned trial court. Moreover, we, keeping in view the prevailing social trend that innocent people of the family or friends of the main culprit are implicated falsely to incapacitate them to pursue the case of the actual culprit, are of the opinion that both Muhammad Zeeshan and Yasir Iqbal (both since acquitted), the co-accused of the appellant, had a case distinguishable from the appellant namely Muhammad Zia-ur-Rehman.

18. Regarding the recovery of the Rifle (P-7) from the appellant namely Muhammad Zia -ur-Rehman son of Muhammad Riaz, the same cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the recovery of the said Rifle (P-7) from the appellant which was in clear violation of section 103 Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. Saleem Iqbal (PW-9), the witness of the recovery of the Rifle (P-7) admitted that Muhammad Sajjad, S.I. (PW-11) made no effort to associate the residents of the area neighbouring the place of recovery to witness the same. Saleem Iqbal (PW-9) during cross-examination stated as under:- "Place of recovery is populated area. I.O. did not ask any person of the locality or from the 'abadi' on the way to the place of recovery to join the recovery proceeding." Similarly, Muhammad Sajjad, S.I. (PW-11) the Investigating Officer of the case, also admitted during cross-examination as under:- "I did not associate any person from the houses around the place of recovery. I did not summon any person from those houses to stand witness to the recovery." The august Supreme Court of Pakistan in the case of Muhammad Ismail and others v. The State (2017 SCMR 898) at page 901 has held as under:- "For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard." Therefore, the recovery of the Rifle (P-7) from the appellant does not further the case of the prosecution in any manner. In view of the above-mentioned facts, the alleged recovery of the Rifle (P-7) is not proved and the same cannot be used as a circumstance against the appellant.

19. The motive of the occurrence, as mentioned in the FIR (Exh.PJ/1) was that there was a dispute between the appellant namely Muhammad Zia-ur-Rehman and Ghulam Shabbir (deceased) regarding the return of money by the appellant to the deceased. No further details of the said motive were provided in the FIR itself. During the statement before the learned trial court, Mian Mureed (PW-7) made a detailed statement regarding the motive of the occurrence, however, it was proved on record that he improved upon his previous statement and was duly confronted with the same. Mian Mureed (PW-7) admitted during cross-examination as under:- "It is correct that the figure of disputed amount of Rs.1 5-lac does not stand recorded in Exh.PJ. I have not stated in Exh.PJ in the terms that "motive behind the occurrence was accused Zia ur Rehman and my son Ghulam Shabeer were close friends; accused Zia ur Rehman borrowed an amount of Rs. 15-lac from my son for his business and for repaying the loan, the accused Zia ur Rehman gave three cheques to my son and the original cheques are lying with me even now; accused Zia ur Rehman kept on dilly-dallying for repayment of loan amount; in February 2014 hot words were exchanged between accused Zia Rehman and my son and their relations became strained; my son Ghulam Shabeer warned the accused about legal proceedings against him and the accused promised to pay the amount on 15.02.2014 but the accused, instead of paying the amount, murdered my son on that day." The above-referred portion of cross-examination proves that Mian Mureed (PW-7) made improvements in his statement with regard to the motive and hence cannot be relied upon with regard to this portion of his evidence. Furthermore, according to Mian Mureed (PW-7), the appellant had drawn three cheques and issued the same to the deceased, however, Mian Mureed (PW-7) admitted that the deceased did not have a bank account and never presented the said cheques for encashment. Mian Mureed (PW-7) also admitted that he had filed a suit for the recovery of amount against the appellant and in that suit, Muhammad Amir and Ghulam Jahangir were cited as witnesses by him, however both the said Muhammad Amir and Ghulam Jahangir never joined the investigation of this case nor appeared before the learned trial court. Muhammad Sharif, S.I. (PW-10), the Investigating Officer of the case, also admitted that he did not collect any evidence regarding the motive of the occurrence. Muhammad Sharif, S.1. (PW-10), during cross-examination admitted as under:- "I did not investigate motive part of the story of prosecution case except recording of statements of prosecution witnesses. I did not independently confirm the motive part of the case. I did not inquire about the financial status of the accused Zia-ur-Rehman as the complainant party alleged that he had to owe certain amount to the deceased." The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged, and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-Amd of the deceased. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. The august Supreme Court of Pakistan has held in the case of "Muhammad Asif v. The State" (2008 SCMR 1001) as under: "Coming to motive, no independent witness was produced in whose presence the altercation had taken place between Shafi and appellant at one side and Mazhar Hussain deceased on the other side." So, this leads us to the conclusion that prosecution remained unable to prove the motive as alleged.

20. We have disbelieved the evidence of prosecution qua the motive and recovery of the Rifle (P-7) in this case. However, if the evidence of motive and recovery of the Rifle (P-7) is excluded from consideration, even then there is sufficient incriminating evidence available on the record against the appellant namely Muhammad Zia-ur-Rehman son of Muhammad Riaz to prove the case of the prosecution against him. As discussed earlier, the prosecution case was fully proved against the appellant namely Muhammad Zia-ur-Rehman son of Muhammad Riaz through the evidence of the eye-witnesses namely Mian Mureed (PW-7) and Ghulam Khizer (PW-8). The said eye-witnesses stood the test of lengthy cross-examination, but their evidence could not be stunned. Their evidence is quite natural, straightforward and confidence inspiring. The ocular account of the prosecution as given by the abovementioned eye-witnesses is fully supported by the medical evidence furnished by Dr. Nazir Ahmad (PW-5), therefore, we hold that the prosecution has proved its case against the appellant namely Muhammad Zia-ur-Rehman son of Muhammad Riaz beyond the shadow of any doubt.

21. Now coming to the quantum of the sentence we have noted some mitigating circumstances in favour of the appellant namely Muhammad Zia-ur-Rehman son of Muhammad Riaz; firstly the evidence of recovery of the Rifle (P-7) from the possession of the appellant namely Muhammad Zia-ur-Rehman son of Muhammad Riaz has been disbelieved by us for the reason mentioned in Para No.18 of this judgment; secondly, the prosecution had alleged a specific motive in this case but failed to prove the same. It is well recognized principle by now that the question of quantum of the sentence requires utmost attention and thoughtfulness on the parts of the Courts. In this regard, we respectfully refer the case of Mir Muhammad alias Miro v. The State (2009 SCMR 1188) wherein august Supreme Court has held as under:-- "It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the parts of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence." The august Supreme Court of Pakistan has held in the case of Ansar Ahmad Khan Barki v. The State and another (1993 SCMR 1660), that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of the normal penalty of death. We are convinced that the appellant namely Muhammad Zia-ur-Rehman son of Muhammad Riaz, in the peculiar circumstance of this case deserves consideration to the extent of his sentence; one out of two provided under section 302(b) of P.P.C. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which had resulted into the death of Ghulam Shabbir (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 duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of the accused. While treating it a case of mitigation, we have fortified our view by a judgment of the august Supreme Court of Pakistan in the case of Ahmad Nawaz and another v. The State (2011 SCMR 593), wherein, at page 604, the Hon'ble apex Court of the country has been pleased to lay emphasis as under:- "

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

22. In the light of above discussion, the conviction of the appellant namely Muhammad Zia-ur-Rehman son of Muhammad Riaz as awarded by the learned trial court through the abovementioned judgment is maintained but the sentence of death awarded to the appellant namely Muhammad Zia-ur-Rehman son of Muhammad Riaz under section 302(b), P.P.C. is altered to imprisonment for life. The compensation awarded by the learned trial court under section 544-A of Cr.P.C. and sentence in default of payment thereof is maintained and upheld. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, is also extended to the appellant namely Muhammad Zia-ur-Rehman son of Muhammad Riaz. Consequently, with the above said modification in the sentence of the appellant namely Muhammad Zia-ur-Rehman son of Muhammad Riaz, the Criminal Appeal No.485 of 2018 is hereby dismissed.

23. Murder Reference is answered in Negative and the death sentence of Muhammad Zia-ur-Rehman son of Muhammad Riaz is Not Confirmed. JK/M-36/L Sentence altered.