2022 PLP 120 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

Through this common judgment we intend to dispose of above two criminal jail appeals as they relate to one and the same incident, and were decided by a common judgment by the trial Court, and also the Confirmation Case which also relate to the same case.

2. The facts of the prosecution case are that complainant, Abdul Qadir son of Haji Lal Khan Mengal, lodged FIR at Police Station Hyderi (Larkano, Sindh) on 24.06.2018 at 9.00 p.m. wherein he stated that, on the same date i.e. 24.06.2008, he, his cousin Abdul Basit (deceased), nephews Habibullah and Ali Ahmed, were walking towards Gajjan Pur Chowk from their house situated in Kausar Mill Mohalla and, at about 7.30 p.m., when they arrived at floor mill of Abdul Aziz Jarwar near Daya Chowk, Kausar Mill Larkana, in the meanwhile, from Brohi Street, accused Khalid armed with pistol, Muhammad Siddique, unarmed, and one unidentified person armed with pistol, appeared. Accused Muhammad Siddique gave "HAKKAL" to Abdul Basit and instigated co-accused Khalid and the unidentified person to take him, not to spare and to kill him. In the meantime, Abdul Basit tried to run, went away a distance of two or three paces from them. They saw, accused Khalid made direct fire shots on Abdul Basit, who cried and fell down on earth. The unidentified accused also fired from his pistol on Abdul Basit. They raised cries; Abdul Basit was writhing; the accused persons fled away, they could not chase the accused because of fear. They saw, Abdul Basit was injured; blood was oozing from his wounds and was unconscious. They took him to Government Hospital but he died at about 8.30 p.m. Leaving PWs with dead body, the complainant lodged FIR.

3. On 21.07.2008, after usual investigation, the SIO submitted Challan before the trial Court, which after framing charge and recording evidence and hearing learned counsel for the parties, vide judgment dated 29.6.2013, convicted and sentenced the appellants Khalid and Muhammad Siddique to imprisonment for life as Tazir and with fine of Rs.2,00,000/- as compensation payable to legal heirs of deceased Abdul Basit.

4. The above judgment was challenged before this Court through Cr. Jail Appeal No.D-39 of 2013, which, vide dated 03.09.2014, decided the same as under: "By consent, this case is remanded back to the learned trial Court on the grounds that firstly, the Charge is defective, the incident took place on 24.6.2008 but the learned trial Court has mentioned the date of incident as 26.6.2008. Secondly, second IO Asadullah Shaikh has not been examined by the trial Court and that Forensic Science Laboratory report is not relied by the trial Court so also circumstantial evidence; the relevant questions were not put by the learned trial Court from appellants. The learned trial court is directed to conduct the de-novo trial and complete the same preferably within a period of six months.

5. Thereafter, case was transferred to the learned Additional Sessions Judge-VI, Larkana, where the charge was re-framed on 02.12.2014, at Ex. 15, and explained to the accused, to which they pleaded "not guilty" and claimed trial vide their pleas recorded at Exs.16 and 17.

6. The prosecution in order to substantiate its case produced as many as nine witnesses as under: i) PW-1 ASI her Ali (Ex.18) he produced receipt of delivering dead body to the legal heirs of deceased (Ex.18-A). ii) PW-2 Abdul Qadir, the complainant (Ex.22) iii) PW-3 Habibullah, the eye-witness (Ex.23) iv) PW-4 Hussain Bux, mashir (Ex.24) v) PW-5 ASI Abdul Ghafoor, author of FIR (Ex.28) vi) PW-6 SHO Kareem Box, first investigation officer of this case (Ex.29), he produced letter to SP and mukhtiarkar Larkana (Ex. 29-A and 29-B), respectively. vii) PW-7 Inspector Asadullah, second investigating officer (Ex.30), he produced memo of arrest of accused, entry No.22, report of Ballistic Expert and Report of Chemical examiner (Ex.30-A to 30D), respectively. viii) PW-8 Dr. Mushtaque Ahmed, the Medical Officer (Ex.33) ix) PW-9 Mukhtiarkar Niaz Ali, he prepared sketch of place of vardat (Ex.34), he produced same (Exh.34).

7. Thereafter learned State counsel closed the side of prosecution evidence, vide statement at Ex.35.

8. After closure of the prosecution evidence, the statements of accused persons were recorded under section 342, Cr.P.C. (Exs.36 and 37), respectively. After hearing learned counsel for the parties, both the accused were convicted vide judgment dated 06.08.2016. Appellant Khalid was sentenced to death and to pay compensation of Rs.1,00,000/- whereas, accused Muhammad Siddique was sentenced to suffer imprisonment for life and to pay Rs.1,00,000/- as compensation.

9. The second judgment was also impugned before this Court and same was set aside vide order dated 21.11.2017 passed in Jail Appeals Nos.D-46 of 2016 and D-73 of 2016, with the following observations:-- "We, therefore, while setting aside the impugned judgment remand the case to learned trial Court with direction to record the statement of appellant under section 342, Cr.P.C. afresh and if the statement of the appellant again shows willingness for examination on Oath and intention to produce witnesses in defence, then the trial Court examine the appellant on oath and his defence witnesses and, thereafter, shall announce fresh judgment after hearing the learned counsel for the parties within a period of thirty days".

10. After second remand order, statements of the accused persons under section 342, Cr.P.C. were recorded at Exs. 41 and 42 respectively, wherein they did not opt to appear as their own witnesses in terms of section 340(2), Cr.P.C. to disproof the allegations levelled against them nor they chose to produce any witness in their defence. They, however, claimed innocence and prayed for justice and stated that all the prosecution witnesses were interested being relatives to each other and no independent witness was cited in this case. However; incriminating evidence i.e a licensed 30-bore pistol bearing No.TAF-9710 produced in evidence by the prosecution and shown to have been recovered from accused Khalid, which he used in commission of offence being incriminating evidence, FSL report in respect of recovered articles viz. crime weapon i.e. one 30 bore pistol No.TAF-9710 with magazine and four 30 bore crime empties and the chemical report issued by Chemical Examiner to Government of Sindh Chemical Laboratory Sukkur at Rohri in respect of blood stained earth of deceased Abdul Basit were confronted to accused and their answers on same were taken on record.

11. The trial Court formulated four points for deliberation and after deciding all the points against the appellants, convicted and sentenced them under Point No.4 in the following terms: "

4. In view of my findings on the above points, accused Khalid and Muhammad Siddique are found guilty for the murder of deceased Abdul Basit, hence they are convicted for offence under section 302(b), P.P.C. Accused Khalid has made repeated fire shots hence he is sentenced to death subject to the confirmation by the Honourable High Court of Sindh and to pay compensation of Rs.1,00,000/- and in case of default, payment of compensation shall be recovered as arrears of land revenue. The accused Khalid shall be hanged by neck till he is dead. Accused Muhammad Siddique is convicted for offence under section 302(b) read with Sections 114 and 34, P.P.C. Since the accused Muhammad Siddique is equally responsible and liable for the murder of deceased. However, his role is of instigation and so also looking to his old age which can be considered as mitigating circumstances for awarding lesser punishment, consequently, accused Muhammad Siddique is sentenced to imprisonment for life as Tazir and so also he is hereby directed to pay Rs.1,00,000/- as compensation under section 544-A, Cr.P.C, and in default of payment or recovery thereof, accused Muhammad Siddique shall undergo imprison-ment for six months more. Both accused are also extended the benefit of section 382-B, Cr.P.C. for the period for which they remained as under trial prisoners. The compensation, if recovered, shall be paid to the legal heirs of the deceased."

12. Feeling aggrieved by the above impugned judgment, the appellants preferred above criminal jail appeals while the trial Court has forwarded Reference under section 374, Cr.P.C. as one of the accused in Sessions Case No.363 of 2008, namely, Khalid Mengal, has been sentenced to death.

13. Mr. Mustafa Safvi, learned Counsel for the appellants, vehemently argued that prosecution has failed to establish the motive for the crime, which was a necessary factor for commission of the offence. He next submitted that there is distinction between the recovery of empties as well as of offensive weapon and they are not matching to each other. He next submitted that independent persons were available at the scene of offence but they were not associated as witness in the case; even the I.O. did not examine them during investigation, hence he submitted that if they had been examined, they would have not supported the prosecution case. Learned counsel, while referring to Article 129(g) of Qanun-e-Shahadat Order, 1984, submitted that essential witnesses have not been examined, therefore, evidence adduced by the prosecution consisted of witnesses who are interested and their testimony cannot be relied upon to sustain the conviction and sentence against the appellants. He submitted that there was enmity between the parties and, therefore, the appellants have been made victim on that account; thus, they being innocent may be extended benefit of doubt. In support of his contentions, he has placed reliance upon the following reported cases:-

1. Ali Bux. v. The State (1985 MLD 697), 2. 1989 ALD 592(2),

3. Bashir Ahmed v. The State (1996 SCMR 308),

4. Sahab Khan v. The State (1997 SCMR 871), 5. (2002 PCr.LJ 915),

6. Habib alias Habibur Rahman v. The State (2004 YLR 206),

7. Amir Moinullah Khan v. Mst. Saber Jana (2004 PCr.LJ 30),

8. Gul Mohammad v. The State (2004 YLR 216),

9. Lal Khan v. The State (2006 SCMR 1846),

10. Azhar Iqbal v. The State (2013 SCMR 383),

11. Mureed Hussain v. The State (2014 SCMR 1698).

14. Conversely, Mr. Sharafuddin Kanhar, learned Assistant Prosecutor General appearing for the State, strongly opposed the appeals and supports the impugned judgment and submits that this is third round of litigation and appellants have been convicted by the trial Court in all three rounds with the same punishment, besides, the discrepancies as pointed out by the defence are immaterial and even motive, in case the other evidence is sufficient to prove the prosecution case, is not necessary. He submits that there is no infirmity or illegality in the impugned judgment, which may require interference by this Court. In support of his contentions learned APG placed reliance upon the cases of Mohammad Akbar v. The State (PLD 2004 SC 44), Abdul Rauf v. The State (2003 SCMR 522) and Bahawal Bux v. The State (2002 P Cr.LJ 1902).

15. Mr. Safdar Ali G. Bhutto, learned Counsel for the complainant, while arguing the case of complainant, submits that there are three eye-witnesses, namely, complainant Abdul Qadir, PW Habibullah and PW Ali Ahmed. He submits that complainant Abdul Qadir as well as PW Habibullah have been examined before the trial Court and they have fully supported the case of prosecution in terms of their version mentioned in the FIR as well as their respective statements; however, PW Ali Ahmed met with road accident during pendency of first round of trial proceedings before the trial Court, hence he was not examined. He submitted that since out of all three eye-witnesses none was given up by the prosecution, therefore, applicability of Article 129(g) of Qanun-e-Shahadat Order, 1984 does not apply to the case of appellants. He next submitted that appellant Khalid caused four fire-arm injuries to the deceased, which hit him on his body and during the investigation the I.O. secured four empties from the scene of offence, besides, the offensive weapon through which the said fires were made was the licensed weapon of appellant Khalid, which was secured during investigation on his pointation and after sending to FSL was found matching, therefore, the question of non-matching of the empties does not arise. He also submitted that the appellants have not taken a single plea in their statement under section 342, Cr.P.C. nor produced any evidence to substantiate their claim, hence he opposes the appeals and supports the impugned judgment. In support of his contentions, he placed reliance upon the following reported cases:-

1. Dr. Munir Ahmed v. The State (PLD 1986 Quetta 26),

2. Mst. Dur Naz and another v. Yousuf (2005 SCMR 1906),

3. Mobashar Ahmad v. The State (2009 SCMR 1133),

4. Habib Sultan v. The State (2008 PCr.LJ 405),

5. Abdul Ghafoor v. The State (2000 SCMR 919),

6. Muhammad Arshad v. The State (2004 SCMR 1645),

7. Muhammad Akbar v. The State (PLD 2004 SC 44),

8. Nazir Ahmed v. The State (2009 SCMR 523),

9. Mehboob Ali v. The State (2000 SCMR 152).

16. We have heard learned counsel for the parties as well as the learned A.P.G. for the State and have also perused the record and examined the case law cited before us with the assistance of learned counsel for the parties/A.P.G.

17. In the present case, Points Nos. 2 and 3 are relevant for the purpose of these appeals / Confirmation Case, which read as under: "

2. Whether on or about 24.6.2008 at about 7.30 p.m. at Daya Chowk near the Flour Mill of Abdul Aziz situated in Kausar Mill Muhala, Larkana, accused Khalid being armed with pistol committed Qatl-e-Amd (murder) of deceased Abdul Basit by causing him fire arm injuries? "

3. Whether on 24.6.2008 death of deceased Abdul Basit was caused by principal accused persons while causing firearm injuries on the instigation and abetment of accused Muhammad Siddique, who shared his common intention with the principal accused?

18. On the above points, learned trial Court bifurcated the evidence in four different categories i.e. (i) ocular evidence, (ii) medical evidence, (iii) circumstantial evidence, and (iv) motive and discussed the same in detail. Therefore, it would be expedient if we examine the evidence on record in the light of the discussion of the trial Court on the above points to find out whether the same is trustworthy or it suffers from non-reading or mis-reading of evidence or is there any legal or factual infirmity/ contradiction in the impugned judgment, calling for interference by this Court.

19. In the present case, ocular evidence consists of the evidence of complainant PW-1 Abdul Qadir (Exh.22) and PW-Habibullah (Exh.23). The complainant, PW-1 Abdul Qadir, in his deposition as well as in the FIR recorded by him immediately after the incidence at Police Station Hyderi, has narrated the facts leading to the murder of deceased Basit,as under: "On 24-06-2007. this incident took place. On the same day I along with my cousin Abdul Basit, Habibullah and Ali Ahmed were going to Gajanpur Chowk. When we reached near floor mill of Abdul Aziz Jarwar near Daya Chowk where accused Khalid, Muhammad Siddique with one unidentified accused came there. Accused Muhammad Siddique instigated his son to kill Abdul Basit. Abdul Basit was going ahead of us at the distance of two paces and at the instigation of co-accused Siddique, accused Khalid fired upon Abdul Basit. Unidentified accused also fired upon Abdul Basit due to fear we did not go forward. After firing all accused escaped way. We brought injured Abdul Basit at casualty hospital Larkana where he expired at 8-30 p.m. I then went to Police Station Hyderi and lodged FIR against accused. I produce FIR at Ex:05-A it is same correct and bears my signature. After registration of FIR I returned back to hospital where post mortem was conducted upon dead body of deceased Abdul Basit. After post mortem I received dead body at 10-30 p.m. I took dead body to my village for burial. Police inspected the place of wardat on my pointation. Police prepared mashirnama of place of wardat and made enquiry from shop keepers of the area. Accused Khalid and Mohammad Siddique present in the court are same.

20. This is a short and crisp narration of the occurrence and, thereafter, the complainant was subjected to lengthy cross-examination which is spread almost over two pages; however, the learned defence counsel was unable to shake the testimony of the complainant or to point out any material contradiction therein. The evidence of the complainant was consistent, coherent and without any contradiction of material nature. In the above deposition the chain of acts is unbroken and continuous right from the moment that the complainant and his colleagues were going together to Gajanpur Chowk at 7-30 p.m. when the incident of firing took place; the taking up of the injured to the hospital at Larkana; death of the deceased at Larkana and the lodging of the FIR at 9-00 p.m. Neither there is any delay in filing of the FIR nor is there any allegation or chance of deliberation / consultation before filing of the FIR. During cross-examination of the complainant, learned counsel for the appellants put a suggestion to the witness/ complainant that the appellants are heavy and cannot run and the witness replied in the affirmative. However, this cannot be termed as a material contradiction, even cannot be termed as contradiction because when the word 'run' is used in this context, it means to escape away from the place of wardat and does not mean that the appellants actually ran at a fast pace like a sprinter. Apart from this, two more suggestions were made to the complainant that the complainant had some land dispute with the father of the deceased, who is real uncle of the complainant; and that father of the deceased was not in UAE and was in Pakistan at the time of incident. Both these suggestions were denied by the complainant. In case any specific plea was taken by the appellants, it is their duty to prove the same by cogent evidence; however, they chose not to be examined on oath nor did they produce any witness in their defence. Therefore, these suggestions were of no help to the appellants.

21. Thereafter, the prosecution examined PW-2, Habibullah, who is nephew of the complainant. He also narrated a similar story. His cross-examination is also spread over one and half pages. During cross, he was asked whether he accompanied the complainant to PS for lodging the FIR, to which he replied that the complainant went to the police station alone for lodging the FIR. He showed his ignorance as to when the police conducted the inspection of the place of wardat and rightly so because he did not accompany the police for inspection of place of wardat. Both PW-1 and PW-2 were unanimous that appellant Muhammad Siddique was not armed and was empty handed. He was also asked about a dispute between the father of the complainant and father of the deceased but he stated that he is not aware of any such dispute. Both these PWs stated that the injured was taken in a Suzuki of their neighbor to hospital. While PW-2 gave his name as Abdullah, PW-1-the complainant stated that he do not remember the name of the Suzuki driver. PW-Habibullah stated that he has given same statement to the police which was recorded under section 161, Cr. Procedure Code. He denied the suggestion that he had not seen the incident personally and that he is deposing falsely. No material contradiction can be found in the statement of the PW-2 as well which is consistent, confidence inspiring and unshaken.

22. From perusal of the record/ evidence it transpires that the occurrence took place on 24.06.2008 at about 7.30 p.m. and the FIR was promptly lodged by the complainant at Police Station Hyderi at about 9-00 p.m. in which the appellants were named and proper role were assigned to them. While appellant Khalid Mengal is alleged to have fired fire arm shots at the deceased Abdul Basit, the complainant as well as the other eye-witness of the scene, clearly stated that appellant Muhammad Siddique was empty handed and was not carrying any fire arm. Since the complainant is related to the deceased and was a natural witness as he was also living in the same area, therefore, he cannot be termed as a chance witness. It is not believable that he will substitute the appellants for someone else without any reason.

23. Learned counsel for the appellants raised an objection that as the third eye-witness, namely, Ali Ahmed was not examined by the prosecution as such presumption under Article 129(g) of Qanun-e-Shahadat Order, 1984, will be attracted and further submitted that essential witnesses have not been examined, therefore, evidence adduced by the prosecution consisted of witnesses who are interested and their testimony cannot be relied upon to sustain the conviction and sentence against the appellants. These submissions are not tenable on two grounds: (i) that since the third witness, namely, Ali Ahmed, was also related to the deceased and the complainant, therefore, even he, if at all examined, would not have been termed as independent witness, and (ii) learned counsel for the complainant gave a cogent reason for non-appearance of the said witness as he did not appear in the witness box due to meeting a road accident. Therefore, it could not be said that he was given up by the prosecution, in which was the presumption as envisaged under Article 129(g) of Qanun-e-Shahadat Order, 1984, would have been attracted. However, in this scenario, non-appearance of the said witness for the said reason would not adversely affect the case of the prosecution as he was not actually given up rather he was unable to appear before the Court due to road accident. Therefore, we are of the view that non-appearance of the third eye-witness, namely, Ali Ahmed, is not fatal to the case of the prosecution.

24. We are mindful of the fact that both the eye-witnesses in the present case are related to the deceased and it is imperative that principle of safe administration of justice in criminal cases is to be strictly followed. In such circumstance the Court has to look for corroborative evidence and such corroborative evidence may not come from an independent witness necessarily as it may come from any source which may satisfy the court that the eye-witnesses have spoken truth. In this regard reliance may be placed on the case of Abdul Ghafoor v. The State (2000 SCMR 919), relied upon by learned counsel for the complainant. Similar view was taken in the case of Mobashar Ahmad v. The State (2009 SCMR 1133).

25. In the present case, in the first place, the evidence of the eye-witnesses was unimpeachable and consistent and was not shaken despite lengthy cross-examination, secondly, the eye-witness account of the incident was fully supported by medical evidence as well as circumstantial evidence, particularly, the recovery of the crime weapon from the possession of appellant Khalid and the positive report of the ballistic expert. as discussed above. Therefore, in our opinion, there was no ground for ignoring the evidence of the eye-witnesses merely on the ground that they are related to the deceased.

26. Learned counsel for the appellants also submitted that it is improbable that while deceased Abdul Basit was being attacked by the appellants, none of the eye-witnesses, who were closely related to the deceased and were standing with him, came to his rescue and also did not suffer any injury in the incident. Reliance was placed on the case of Ali Bux and others v. The State (1985 MLD 697). In the cited case, attack was allegedly made by four persons in a small room in which two persons were killed but the eye-witnesses were not injured in the same incident. This case is distinguishable on facts as in the present case, firstly, the attack was made in an open place and, secondly, it has come in the evidence that the assailants were specifically targeting the deceased and they did not make indiscriminate firing. Therefore, if the eye-witnesses did not sustain any injury in the incident is not improbable or impossible.

27. Next, we will examine the medical evidence. Medical evidence can be used as corroborative piece of evidence in support of the ocular evidence of the PWs/eye-witnesses who have narrated the full incident which they claim to have seen themselves. The PWs have unanimously stated that appellant Khalid Mengal has fired four shots at deceased and have also mentioned the parts of the body targeted by the appellant Khalid Mengal. The medical evidence is in complete conformity with the ocular evidence as there are in total eight wounds on the body of the deceased - four are entry wounds and four are exit wounds, thus the ocular evidence is fully supported by the medical evidence. PW-Dr. Mushtaque was examined as Exh.10 (page 129 of the paper book). During his examination in chief, he fully narrated the injuries sustained by the deceased as well as the seat of the injuries which corroborates the ocular evidence in this case. Although the learned counsel for the appellants was not able to shake the evidence of PW-Dr. Mushtaque, but some very useful facts were brought on record through cross-examination of Dr. Mushtaque, which read as under: "I have mentioned the time between the death and postmortem as 2 hours and 15 minutes. I have mentioned four injuries through and through suffered by deceased in post mortem report. All four injuries were suffered by the deceased at the distance of within 10 feet. Out of four injuries deceased had suffered one injury is from back side and three from the front side. It is correct that I had mentioned in the report that deceased had suffered firearm injury but cannot describe the nature of firearm."

28. The above deposition by the Doctor fully conforms to the deposition of the eye-witnesses as to the number of fires, number of injuries sustained by the deceased, the seat of the injuries, the time of the incident and the distance from which the fires were made by the appellant Khalid Mengal at the deceased Abdul Basit.

29. In view of the above discussion, we are of the opinion that the medical evidence is in complete conformity with the ocular evidence and there is no contradiction between the two versions and the same was properly evaluated by the trial Court and there is no discrepancy/ lacuna in the same. The medical report fully supports the contents of FIR as well as the deposition of the eye-witnesses.

30. So far as circumstantial evidence in the present case is concerned, this was also free from any doubt or contradiction. In this regard reference may be made to the deposition of PW-5, ASI Abdul Ghafoor (Exh.28), who has correctly given the time of arrival of the complainant at PS and also recorded such roznamcha entry while FIR was written by WHC under his dictation. The FIR was given to Inspector Karim Bux Bhayo for investigation. He denied the suggestion that the FIR was written next day of the incident after deliberation and consultation. PW-ASI Sher Ali (Exh.18) deposed that on 24.6.2008 he was posted at Police Station Hyderi and shifted the dead body of deceased Abdul Basit to CMC Hospital Larkana for post-mortem. After post mortem he handed over the dead body to the legal heirs of deceased and obtained such receipt. PW-4, Hussain Bakhsh (Exh.24) was mashir of examination of dead body, inspection of place of wardat and production of crime weapon by appellant Khalid Mengal. He stated that on 24.6.2008, he was shown the dead body of deceased Abdul Basit at Civil Hospital, Larkana and such mashirnama was prepared by Karim Bux Bhayo, who also visited the place of wardat with PW-Hussain Bakhsh and also collected blood stained earth and four empties from the place of wardat. On 14.7.20108, the said Inspector, along with three constables, took appellant Khalid Mengal to his (Khalid's) house from where the appellant produced one 30-bore pistol with license from a bed. Such memo of recovery was prepared and the recovered article was sealed on the spot. He was subjected to cross-examination but his evidence remained consistent and unshaken.

31. The most important piece of evidence is the recovery of the incriminating pistol bearing No.TAF-9710 of 30 bore and its license in the name of the appellant Khalid. As per evidence of Inspector Abdullah, the accused Khalid Mengal, during interrogation, voluntarily produced the same in presence of mashirs. The recovered items were sealed on the spot and along with the four empties recovered from the place of the wardat, was sent to Ballistic Expert. The appellant Khalid was confronted during recording of his statement under section 342, Cr.P.C. with such evidence, he admitted that the said pistol belongs to him but he denied that it was produced by him before police and stated that the police took away the same from him. In any case, in view of the Ballistic Experts report that the recovered empties, which were used in the fatal shooting of the deceased by the appellant Khalid, were fired by the same pistol. Thus, the prosecution was able to prove its case beyond reasonable doubt against the appellant Khalid. The detailed discussion by the trial Court on the point of recovery of the said pistol also does not suffer from any infirmity and depicts the correct position.

32. To carry conviction on a capital charge it is essential that courts have to deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon as we have noticed in some cases thus, very minute and narrow examination of the same is necessary to secure the ends of justice and that the Prosecution has to establish the case beyond all reasonable doubt, resting on circumstantial evidence. "Reasonable Doubt" does not mean any doubt but it must be accompanied by such reasons, sufficient to persuade a judicial mind for placing reliance on it. If it is short of such standard, it is better to discard the same so that an innocent person might not be sent to gallows. To believe or rely on circumstantial evidence, the well settled and deeply entrenched principle is that it is imperative for the Prosecution to provide all links in chain, where one end of the same touches the dead body and the other the neck of the accused. The present case is of such a nature where no link is missing in the chain. While at the one end of the chain we find that the eye-witnesses have named the appellant Khalid as the person who shot at the deceased Abdul Basit and upto the time when the dead body of deceased Abdul Basit is handed over to his legal heirs for burial, no link in the chain is missing, including recovery of the pistol which was involved in the firing and the report of the ballistic expert whose report is positive in indicating that it was the pistol of appellant Khalid from which the fatal shots were fired at deceased Abdul Basit.

33. After examining the entire circumstantial evidence in this case, we are of the considered view that each and every link in the chain acts, commencing from the going of the deceased along with his colleagues to Gajjanpur Chowk, to the incident of firing, the removing of the injured to hospital, the death of the injured at hospital, the post mortem of the deceased and handing over of his body to his legal heirs for burial, and recording of FIR by the complainant at Police Station Hyderi, sending of the crime pistol and empties to ballistic expert, positive report of the ballistic expert, is intact and in place and no such link is missing. The trial Court has properly examined the circumstantial evidence in its correct perspective.

34. Lastly, the trial Court discussed the point of motive involved in the case. Learned counsel for the appellants also contended that since in the instant case a motive was alleged by the prosecution and it was the duty of the prosecution to have proved the same by cogent evidence. He relied on the case of Nawab and others v. The State (2002 SD 679). However, the facts of the cited case are entirely different as in that case the evidence of the complainant was held to be unreliable as there were material contradictions in the same. In the present case the evidence of the eye-witness does not suffer from any contradiction, let alone some material contradiction. Therefore, the same can be relied by the trial Court. In this regard reference may also be made to the case of Nazir Ahmed v. The State (2009 SCMR 523), wherein the Hon'ble Supreme Court has observed as under: "So far as the motive is concerned, it was held by this Court in the case of Nawaz Ali and another v. The State (2001 SCMR 726) that in case of lack of motive altogether or if the prosecution is unable to prove motive for murder, it does not affect the imposition of normal penalty of death in murder case, if the prosecution otherwise has been able to prove its case against accused beyond reasonable doubt. It was also held by this Court in the case of Ahmad Nisar v. The State (1977 SCMR 175) that absence of motive or failure on the part of the prosecution to prove it does not, therefore, adversely affect the testimony of the eye-witnesses if they are otherwise reliable."

35. Similarly in the case of Muhammad Akbar and another v. The State (PLD 2004 SC 44) it was held that motive shrouded in mystery by itself is not a mitigating circumstance for lesser punishment.

36. In view of the above authoritative pronouncement by the Hon'ble Supreme Court, we are not inclined to take lenient view in the instant case on account of the fact that the motive was not proved by the prosecution because we are of the view that the evidence of the eye-witnesses is trustworthy and the submission on the point of motive cannot affect the testimony of the eye-witnesses, which is otherwise unshaken and confidence inspiring and is fully corroborated by medical evidence as well as circumstantial evidence.

37. Learned counsel for the appellants argued that there was enmity between the parties due to which the appellants were falsely implicated in the present case. However, the superior Courts have held that enmity is a double edged weapon which cuts both ways. Therefore, if the learned counsel for the appellants can take the plea of enmity in their favour, so can the prosecution rely upon the same for commission of the crime. Even otherwise, the Hon'ble Supreme Court in the case of Mehboob Ali v. The State (2000 SCMR 152) has held that mere existence of enmity when solitary ocular version is unimpeachable and confidence inspiring becomes irrelevant.

38. Learned counsel for the appellant contended that since the crime weapon and the empties, recovered from the place of wardat, though recovered on different dates, were kept in police custody, and sent to the ballistic expert on the same date which tarnishes the result of the forensic tests. Reliance in this regard was placed on the case of Mureed Hussain v. The State (2014 SCMR 1689). Examination of the facts of the cited case reveals that there was contradiction in the evidence of the eye-witnesses and even presence of the eye-witnesses at the time of incident was doubtful. In the present case both these mitigating elements are missing. It was the duty of the I.O. to ensure that the recovered items were promptly dispatched for forensic test and if he failed in performing his duties for reasons best known to him, the complainant should not suffer on account of the same. Reference in this regard may be made to the case of Habib Sultan v. The State (2008 PCr.LJ 405).

39. There is no cavil with the proposition that even a single doubt created by defence in the prosecution case would be enough to give benefit of doubt to the accused and the defence is not required to show that prosecution case suffers from many contradictions. However, learned counsel for the appellants has not been able to even point out one material contradiction in the evidence of the eye-witnesses.

40. We have observed that there are some minor lacunae in the deposition of the official witnesses i.e. police official like PW-Abdul Karim Bhayo (Exh.29), who was first I.O. of the case, admitted in is cross-examination that he did not produce the roznamcha entry regarding receiving the FIR and leaving the PS for inspection of the place of wardat. Similarly, the second I.O. of the case, namely, PW-7 Asadullah Shaikh, also admitted the he had not produced roznamcha entry regarding receiving investigation of the case or the entry by which he left the PS for arrest of the appellants. However, such minor errors on the part of official witnesses cannot be taken seriously in case the other evidence is confidence inspiring and unshaken. In this regard reference may be made to the admission on the part of the police officials about roznamcha entry, however, in this regard reliance may be placed on the case Habib Sultan v. The State (2008 PCr.LJ 405) wherein a learned Division Bench of the Lahore High Court held that the complainant would not suffer due to the lapses of the investigation agency in the presence of convincing and direct evidence.

41. Thus, we do not find that any mis-reading or non-reading of the evidence resulting in miscarriage of justice in the instant case.

42. For two reasons, we would once again refer to the evidence of the complainant as well as PW-Habibullah, who unanimously stated that the appellant Muhammad Siddique was empty handed and the allegation against him is that of hakkal only. One reason for this is to show that the evidence of the eye-witnesses is trustworthy and confidence inspiring. It may be mentioned that although it has been alleged by the learned counsel for the appellants that there is enmity between the parties and therefore, they have falsely implicated the appellants in the instant crime; however, still the two eye-witnesses have not stated in their evidence that Muhammad Siddique was also armed or that he also fired at the deceased. The eye-witnesses of the occurrence have given complete and true picture of the incident by stating that appellant Khalid and an unidentified accused were armed while appellant Muhammad Siddique was unarmed and Aid not take any part in the actual murder of the deceased Abdul Basit. This clearly proves that there is no exaggeration on the part of the eye-witnesses in this regard and they have not tried to give a larger part to appellant Muhammad Siddique than what was actually played by him in this case. He was empty handed and he did not take any active part in the murder of deceased Abdul Basit. This shows that the evidence of the eye-witness is truthful and honest. The second reason is that since no overt act has been attributed to appellant Muhammad Siddique, who is an old man of about eighty (80) years, therefore, his case deserves to be examined properly.

43. As per contents of the FIR, when the accused persons came out from Brohi Street, appellant Muhammad Siddique was empty handed. Similarly, during cross-examination, PW-Habibullah stated that appellant Muhammad Siddique was empty handed. This means that appellant Muhammad Siddique was empty handed right from the beginning and had no intention of attacking the deceased. In case he was also inclined to take active part in the murder of the deceased Abdul Basit at least he should have been armed with some weapon like a hatchet, a dagger or some fire arm, etc. However, we find that he was not armed at all. Therefore, in our view, he did not take any part in the murder of the deceased Abdul Basit. As appellant Khalid Mengal and the unidentified person were armed with pistols then it means that they were fully prepared to and had the clear intention of killing the deceased. In view of the old age of the appellant Muhammad Siddique and the mitigating circumstances, we feel that he deserves acquittal.

44. The upshot of the above discussion is that while we dismiss Criminal Jail Appeal No.D-35 of 2018 (filed by appellant Khalid Mengal) and maintain the impugned judgment to that extent, and resultantly, the conviction and sentence awarded by the trial Court to appellant Khalid Mengal is hereby upheld. In view of the above, reference sent through Confirmation Case No.D-5 of 2018 by the trial Court is answered in the affirmative and the death sentence awarded to the appellant Khalid Mengal by the trial Court is hereby confirmed. However, we allow Criminal Jail Appeal No. S-45 of 2018, modify the impugned judgment to that extent by setting aside the conviction and sentence awarded to appellant Muhammad Siddique by the trial Court and acquit him of the charge. He shall be released forthwith if not required in any other case. JK/K-24/Sindh Order accordingly.