2016 P Cr (PLP)

ABDUL SAMI KHAN, J.

Through the instant appeals filed Under section 410, Cr.P.C. Amrez, Kashif-ur-Rehman and Muhammad Altaf appellants have called in question the judgment dated 21.06.2007 handed down by the learned Additional Sessions Judge, Gujrat through which Amrez appellant was convicted under section 302(b), P.P.C. for committing Qatl-e-Amd, of Pervaiz Mehdi deceased and was sentenced to death. Appellants Kashif-ur-Rehman and Muhammad Altaf were convicted under section 302(b), P.P.C. and were sentenced to life imprisonment each. All the three appellants were also convicted under section 460, P.P.C. and were sentenced to ten years RI each. They were also ordered to pay compensation of Rs.50,000/- (Rupees fifty thousand only) each to the legal heirs of the deceased under section 544.A, Cr.P.C. In case of non-payment thereof they were ordered to further undergo simple imprisonment for six months each. Both the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. was also extended in favour of the appellants. The appellants have filed these appeals against their convictions and sentences whereas the learned trial court has sent a Reference under section 374, Cr.P.C. for confirmation or otherwise of the sentence of death passed against Amrez appellant which has been numbered as Murder Reference No.450 of 2007. We propose to decide all these matters together through this single judgment.

2. According to the case of prosecution as mentioned in the FIR the complainant was resident of Dhumtal and was housewife. On the fateful night she along with her husband Pervaiz Mehdi and children slept in the courtyard whereas Muhammad Iqbal who is her brother in law (jaith) along with his wife Mst. Gulzar Bibi slept in their own room. At that time electricity bulbs were on in the courtyard of the house. At about 12:30 a.m. (midnight), four persons while scaling over the western wall of adjacent empty house came near to their cots. She was awaking whereas her husband was sleeping at that time. She identified them in the light of electricity bulbs as Muhammad Altaf armed with pistol .30 bore, Amrez armed with pistol .30 bore, Kashif armed with .12 bore gun and Abdul Munaaf was armed with sota who raised lalkara to awake Pervaiz Mehdi and kill him whereupon Muhammad Altaf and Kashif caught hold of her husband Pervaiz Mehdi from his both arms and dragged him from the cot to the courtyard. Amrez made fire at her husband which landed on his left flank and he fell down. He made second fire at her husband which hit on his right shoulder. She raised hue and cry whereupon her brother in law (jaith) Muhammad Iqbal and his wife Mst. Gulzar Bibi also awakened and his brother in law (jaith) raised lalkara that he was coming. The accused persons while firing with their respective weapons and scaling over the same wall fled away from the place of occurrence. The motive of the occurrence as narrated by the complainant in the FIR was that there was previous enmity of accused persons with her parents. Abdul Munaaf had a grudge that Pervaiz Mehdi helped out the opposite party. The occurrence was witnessed by the complainant, her brother in law (jaith) Muhammad Iqbal and his wife Mst. Gulzar. The dead body of her husband was lying in the courtyard smeared with blood. She left her brother in law Muhammad Iqbal (jaith) to guard the dead body and herself went to the police station for reporting the matter. Report under section 173, Cr.P.C. was submitted in the learned trial court and charge was framed on 11.04.2005 under sections 302/34, 460/34, P.P.C.

3. The prosecution in order to prove its case against the appellants examined as many as twelve prosecution witnesses before the learned trial court whereas the learned trial court recorded statements of two court witnesses. The ocular account has been furnished by Mst. Nazirah Bibi complainant (PW-7) and Muhammad Iqbal (PW-8). The medical evidence in this case was furnished by Doctor Safdar Iqbal, Medical Officer, Aziz Bhatti Shaheed Hospital, Gujrat (PW-9) who conducted the post-mortem examination on the dead body of deceased Pervaiz Mehdi on 20.09.2004. The investigation in this case was conducted by Muhammad Khaliq SI (PW-11) who proceeded to the place of occurrence, inspected the dead body; prepared inquest report Ex.PM, injury statement, Ex.PN, secured blood with cotton from the place of occurrence vide recovery memo Ex.PB, collected one crime empty vide recovery memo. Ex.PJ and recorded the statements of PWs under section 161, Cr.P.C. He prepared rough site plan Ex.PQ and the draftsman prepared scaled site plan Ex.PF. He arrested Abdul Munaaf, Kashif and Altaf on 05.10.2004 and Amrez on 08.10.2004. Rest of the evidence adduced by the prosecution is almost formal in nature. After tendering in evidence report of Chemical Examiner Ex.PQ, report of Serologist Ex.PR, report of Forensic Science Laboratory Ex.PS, attested copy of challan and order sheet of case FIR No.410/03 Ex.PT (under objection by defence counsel being inadmissible), the prosecution closed its evidence. 4 In their statements recorded under section 342, Cr.P.C. the appellants Amrez, Kashif-ur-Rehman and Muhammad Altaf had controverted the allegations leveled against them by the prosecution and they had also professed their innocence. The appellants did not opt to record their statements on oath under section 340(2), Cr.P.C. in disproof of allegations leveled against them by the prosecution. However, they produced DW-1 to DW-3 before the learned trial court and also got exhibited documents Ex.DA to Ex.DK in their defence.

5. At the end of the trial, after thrashing the entire evidence and evaluating the arguments advanced by the learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence the appellant as mentioned in paragraph No.1 of this judgment. Abdul Munaaf accused remained absconder and after his arrest he was tried separately and was sentenced to life imprisonment.

6. Learned counsel for the appellants submits that the prosecution has miserably failed to prove its case against the appellants beyond any shadow of doubt. The statements of the prosecution witnesses are full of contradictions and discrepancies which are fatal to the prosecution's case. The eyewitnesses are closely related inter se and they are also related to the deceased so their evidence before the learned trial court is not above-board to be relied upon to record the conviction of the appellants. The eye-witnesses are related witnesses whose credibility does not find corroboration from any other corner. Even otherwise although the source of light is mentioned in the FIR yet no electric bulb was secured from the place of occurrence by the investigating officer. The recovery of pistol .30 bore allegedly effected from the appellant Amrez is of no help to the prosecution as there is no report of Forensic Science Laboratory qua matching of crime empty with the weapon of offence. The motive set up by the prosecution in the FIR is also not proved because no witness has been produced by the prosecution before the learned trial court to prove the motive part of the occurrence. It is settled law that when the prosecution set up motive in the FIR then it is the duty of the prosecution to prove the same through cogent and reliable evidence but in this case the prosecution has miserably failed to prove the motive and it is none else but the prosecution who has to suffer for it. Amrez appellant was not present at the place of occurrence at the relevant time as he was present on his duty at Bahawalpur at that time. Similarly the appellants Kashif-ur-Rehman and Muhammad Altaf have also taken the plea that they were not present at the place of occurrence at the relevant time as they were present in their house at that time. The DWs produced by the defence have fully supported its version. In the circumstances the story narrated by the prosecution in the FIR becomes doubtful and the appellant Amrez deserves clean acquittal. As far as Kashif-ur-Rehman and Muhammad Altaf appellants are concerned the role attributed to them is that they caught hold of deceased Pervaiz Mehdi and dragged him from the cot to the courtyard. They had not caused any injury to the deceased so they are also entitled to be acquitted in this case. It is common practice in our society that the complainant used to involve innocent persons in murder cases from the accused side so that nobody is left behind to pursue the matter. The learned counsel prays for acquittal of the appellants from the charge.

7. On the other hand learned Deputy Prosecutor-General assisted by the learned counsel for the complainant contends that it is a promptly lodged FIR Wherein the appellants are specifically nominated with specific roles and medical evidence in this regard furnished by the doctor fully corroborates the ocular account. The parties were known to each other, thus, the appellants were identified by the PWs during the occurrence in the light of electric bulb which were on at the place of occurrence at the relevant time and the source of light has also been shown in the unscaled site plan Ex.PQ and scaled site plan Ex.PF. As the parties to this case were known to each other, therefore, there was no chance of mistaken identity or false implication of the appellants in this case. The roles attributed to the appellants are borne out from the post-mortem examination of the deceased. According to the doctor cause of death is due to injuries attributed to Amrez appellant who has chosen vital part of the body to cause grievous hurt which proved fatal enough to cause death of the deceased. During the investigation the weapons of offence pistol .30 bore was recovered from Amrez appellant as well as .12 bore gun from Kashif-ur-Rehman appellant and the recovery proceedings were proved through reliable evidence adduced by the recovery witnesses. Relation inter se is no ground to discard the trustworthy and confidence inspiring evidence of the eye-witnesses. The prosecution witnesses are consistent on each and every material point. There seems no discrepancies in their statements. There was no serious enmity between the parties so possibility of false implication of the appellants in this case is ruled out of consideration. If for the sake of arguments, the motive is not proved or motive is shrouded in mystery it does not mean that the appellant deserves acquittal or his sentence be reduced. The prosecution has proved its case against the appellants beyond any reasonable doubt, thus, the appeals filed by the appellants be dismissed.

8. We have heard the learned counsel for the parties at length and have given our anxious consideration to their arguments and have also minutely scanned the record with great care and caution.

9. The unfortunate occurrence in this case took place on 20.09.2004 at 12:30 a.m. (midnight) and the FIR was chalked out on the statement of Mst. Naziran Bibi complainant (PW-7) at 2:05 a.m. on the same night. This shows that the FIR was lodged within one hour and thirty five minutes. Thus, we have not seen any unusual or unconscionable delay in the registration of the FIR which has been lodged in this case with sufficient promptitude.

10. Before proceeding further in the matter we would like to first discuss the case of Amrez appellant. It has been observed by us that the ocular account in this case has been furnished by Mst. Naziran Bibi complainant (PW-7) and her brother in law (Jaith) Muhammad Iqbal (PW-8). The appellant Amrez is specifically named in the FIR and a specific role is attributed to him that he caused injuries with his pistol .30 bore at the left flank and right shoulder of the deceased Pervaiz Mehdi and according to the postmortem examination report of the deceased (Ex.PK), these injuries are very much present on the dead body of the deceased. Admittedly the occurrence took place in the house of the complainant Mst. Naziran Bibi (PW-7) and the deceased. The source of light is specifically mentioned by the complainant in the FIR and the same has been shown by the Draftsman (PW-6) in the scaled site plan (Ex.PF) as well as in the unscaled site plan (Ex.PQ) prepared by the investigating officer on his first visit to the place of occurrence. Both the above mentioned eye-witnesses had duly identified Amrez appellant in the light of electric bulbs who had inflicted the fatal firearm injuries on the person of the deceased Pervaiz Mehdi which later on resulted into his death at the spot. Admittedly the eye-witnesses are residents of the place of occurrence so their presence at the place of occurrence at the relevant time is natural. Even otherwise according to the postmortem examination report, the eyes and mouth of the deceased Pervaiz Mehdi were closed which also shows the presence of the eye witnesses at the place of occurrence at the relevant time as close relatives do attend to the dead body and close eyes and mouth of deceased which is normal behaviour. Both the eye-witnesses had also pointed out the source of light in their statements while appearing before the learned trial court so the identification of Amrez appellant by the eye-witnesses at the place of occurrence is not doubtful. They had sufficiently explained time, day, place of occurrence inasmuch as each and every event of the occurrence in clear-cut manner during their statements adduced before the learned trial court in addition to that they had also explained the mode and manner of taking place the occurrence qua the culpability of Amrez appellant in this case. Although they were cross-examined by the defence at length wherein the learned counsel for the defence had asked multiple questions to shatter their confidence to the extent of Amrez appellant yet nothing favourable to the defence could be extracted from their mouth and both of them remained consistent on all material points. The parties were known to each other so there was no chance of mistaken identity of the appellant or his false implication in this case in lieu of real culprit is a rare phenomenon. The minor discrepancies in their statements are not fatal enough to destroy the prosecution's case against appellant Amrez or to shatter the confidence inspiring testimony of their statements adduced before the learned trial court. The prosecution has successfully proved ocular account to the extent of Amrez appellant which is duly supported by the medical evidence.

11. Moreover, relationship inter se is no ground to discard the trustworthy and confidence inspiring evidence of the eye -witnesses. It is now well settled principle of law that the fact of relationship of the witnesses with the complainant or with the deceased would not be sufficient to smash the evidence adduced by such witnesses. Such related PWs can be believed if intrinsic worth of their testimony inspires confidence of the court and the same leads to an inference that the witnesses were present at the scene of the crime at relevant time and they have witnessed the occurrence. Reliance can easily be placed on the case of Muhammad Ahmad and another v. The State and others (1997 SCMR 89). Even otherwise the rule requiring independent corroboration of testimony of interested witnesses is a rule of prudence which is not to be applied rigidly in each case. There can be cases like the present one where implicit reliance can be placed on the testimony of an interested witness if it otherwise inspires confidence of the Court.

12. The medical evidence had been furnished by Dr. Safdar Iqbal, Medical Officer, Aziz Bhatti Shaheed Hospital, Gujrat (PW-9) who had conducted the post-mortem examination on the dead body of the deceased Pervaiz Mehdi on. 20.09.2004 and while appearing before the learned trial court he had sufficiently explained the locale as well as nature of injuries attributed to Amrez appellant, the weapon used for committing the murder of the deceased and the time between injuries and death in addition to the time between death and the Post mortem Examination. The doctor had observed three injuries on the dead body of the deceased. Pervaiz Mehdi i.e. injury No.1-A on the right shoulder which is entry wound, injury No.1-B in the right axilla which is exit wound of injury No.1-A and injury No.2 on the left side of chest. We may observe here that this conflict in the ocular account and the medical evidence is not fatal to the prosecution case as it is not expected from a layman to describe the exact seat of injuries on the dead body of the deceased especially when injury No.2 is very close to the flank. Even otherwise injury No.2 is attributed to Amrez appellant and none else so the accused side cannot take premier over this conflict in the medical evidence and the ocular account. Failure to point out exact seat of injury by the eye-witnesses on the person of deceased can never be considered a ground for acquittal. Be that as it may any trivial discrepancy between medical evidence and ocular account does not have any adverse effect upon the case of prosecution. Reliance in this regard can be placed upon the case of Abdur Rauf v. The State (2003 SCMR 522) wherein the Hon'ble Supreme Court of Pakistan has held as under:- "We may observe that the minor discrepancies in the medical evidence relating to the seat of injuries would also not negate the direct evidence as the witnesses are not supposed to give photo picture of each detail of injuries in such situation, therefore, the conflict of nature of ocular account with medical as pointed out being not material would have no adverse effect on the prosecution case." Thus, the medical evidence provides full support to the prosecution version to the extent of role attributed to Amrez appellant.

13. So far as the recovery of weapon of offence is concerned, we have observed that although the recovery of pistol .30 bore P5 (Ex.PE) has been shown to be effected from Amrez appellant but the fact remains that one crime empty (Ex.PJ) taken into possession from the place of occurrence by the investigating officer was not sent to the office of the Forensic Science Laboratory so the report of the Forensic Science Laboratory to the extent of working order of pistol .30 bore P5 allegedly effected from Amrez appellant becomes inconsequential and is of no help to the prosecution. However, recovery is just a corroborative piece of evidence and it is not a substantive piece of evidence. Only non-proving of recovery or failure of investigating officer to recover weapon of offence from, accused could not smash the whole prosecution evidence and is not sufficient to wriggle out the appellant from his culpability. Reliance can easily be placed upon 2006 SCMR 161 wherein the Hon'ble Supreme Court of Pakistan has held as under:- "Non-recovery or failure on the part of the investigating officer to recover the weapon of offence from the accused, who absconded after commission of the offence and seizure of one crime empty from the place of occurrence per se will not by any stretch have an adverse effect on the prosecution case in view of unimpeached ocular account of the incident, medical evidence corroborated by other pieces of circumstantial evidence."

14. The motive set up by the complainant in the FIR is that Pervaiz Mehdi deceased was done to death by the appellant due to previous enmity of the accused persons with the parents of the complainant but the complainant has failed to bring on record as to what was the cause of previous enmity of the accused persons with her parents. We may observe here that the complainant had neither produced any document nor any independent person before the learned trial court to prove motive put forth by her in the FIR. So we have come to a definite conclusion that the prosecution has failed to prove motive in this case.

15. For what has been discussed above the prosecution has successfully proved the case against Amrez appellant beyond any shadow of doubt through confidence inspiring evidence in shape of ocular account and medical evidence. However, at the same time, we have observed some peculiar features of this case and we are of the view that this case carries some exceptional/mitigating circumstances in favour of the appellant which are as under:- (a) The motive set up by the prosecution has not been believed by us and law is quite settled that when the prosecution set up a motive in the FIR it was none else but the prosecution who has to prove the same with cogent and trustworthy evidence.

16. After attending all the circumstances of this case we are of the definite view that sentence of death awarded to Amrez appellant is not justified in this case and the capital sentence of death passed against him by the learned trial court appeared to us to be harsh enough to be sustained as motive set up by the prosecution has not proved in this case rather the same remains shrouded in mystery. It is settled law that once motive is set forth by the prosecution then the prosecution is duty bound to prove the same; in this case the prosecution miserably failed to prove motive. Law is quite settled by now on the point that motive part of the prosecution story can be considered to determine the quantum of sentence of an accused in a murder case, if motive is not proved then this fact can be taken as mitigating circumstance. Reliance is placed on the cases of Muhammad Yaseen v. The State (2011 SCMR 905), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165) and Hasil Khan v. The State (2012 SCMR 1936) wherein it has been held as under:- "We agree with the proposition that motive is not sine qua non for the proof of commission of the crime and at time motive is not known to any other person other than the deceased or the accused person which never surfaced on the record. However, it cannot be denied that motive is always very relevant to determine the quantum of sentence that might be awarded to a person against whom charge of murder is proved." We would also like to observe here that an accused is entitled for the benefit of doubt as an extenuating circumstance while deciding his question of sentence. Reliance is placed upon Mir Muhammad alias Miro v. The State (2009 SCMR 1188). In another judgment reported as Ansar Ahmad Khan Barki v. The State and another (1993 SCMR 1660), the Hon'ble Supreme Court of Pakistan has held that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to an accused for award of normal penalty of death. We have also fortified our view qua the quantum of sentence by the case reported as Sharafat Ali Khan v. The State (2010 SCMR 1205), wherein the Hon'ble Supreme Court has Observed as under:- "In Muhammad Riaz and another v. The State (2007 SCMR 1413), while considering the penalty for an act of commission of qatl-i-amd it was observed "No doubt, normal penalty for an act of commission of qatl-i-amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case. Reference in the context may also be made to Iftikhar Ahmad Khan v. Asghar Khan and another (2009 SCMR 502)." This fact along with other circumstances is considered by us as mitigating circumstance in favour of appellant. So taking the same into consideration in favour of appellant Amrez we feel that the capital punishment of death will not serve the interests of justice in this case. The above narrated peculiar features of this case convince us that life imprisonment would be absolutely in apt with the circumstances of this case. Thus, we convert the death sentence of Amrez appellant into life imprisonment under section 302(b), P.P.C. However, conviction to the extent of payment of compensation amounting to Rs. 50,000/- to the legal heirs of Pervaiz Mehdi deceased under section 544-A, Cr.P.C. or in default of payment thereof to further undergo imprisonment for six months is maintained and upheld. His conviction to the extent of ten years R.I. under section 460, P.P.C. awarded to him by the learned trial court is also upheld and maintained. All the sentences shall run concurrently. The benefit of section 382-B, Cr.P.C. is also extended in favour of the appellant. Criminal Appeal No 852 of 2007 to the extent of Amrez appellant is, therefore, dismissed with the above modification made in the sentence of Amrez appellant. Murder Reference No, 450 of 2007 is answered in the negative and the death sentence of Amrez appellant is not confirmed.

17. Now adverting to the case of Kashif-ur-Rehman and Muhammad Altaf appellants, the complainant Mst. Naziran Bibi (PW.7) had attributed role of catching hold of the deceased Pervaiz Mehdi from his both arms to the appellants before Amrez appellant/co-convict fired upon the deceased twice with his pistol .30 bore. It does not appeal to a prudent mind that when the deceased was being fired upon by Amrez appellant, both the appellants Kashif-ur- Rehman and Muhammad Altaf would risk their own life by catching hold of deceased by arms especially when the doctor has not observed any sign of blackening or tattooing on the injuries sustained by the deceased which shows that the injuries have been caused from a distance. Admittedly both the appellants Kashif-ur-Rehman and Muhammad Altaf have not caused any injury to the deceased nor the doctor has observed any abrasion of catching hold of the deceased by both the arms so the false implication of both the appellants cannot be ruled out of consideration. It is common practice in our society that people do involve innocent persons from accused side by widening the net so that nobody is left behind to pursue this matter. It is settled law that not many circumstances creating doubt in the prosecution story are required but only one circumstance creating doubt in the prosecution story is enough to acquit the accused. In the backdrop of such a situation by extending the benefit of doubt in favour of Kashif‑ur-Rehman and Muhammad Altaf appellants they are acquitted of the charge. Criminal Appeal No. 852 of 2007 to the extent of Kashif-ur Rehman appellant and Criminal Appeal No.1055 of 2007 filed by Muhammad Altaf appellant are, therefore, allowed and the appellants Kashif-ur-Rehman and Muhammad Altaf are acquitted of the charge by extending benefit of doubt in their favour. They are on bail, their bail bonds are released and sureties shall stand discharged from their liabilities. HBT/A-136/L Order accordingly.