PLJ 2022 Cr.C. 1418 (DB)
Substitution of appellant--
----Substitution is a phenomenon of a rare manifestation because even interested witnesses would not normally allow real culprits for murder of their relations let off by involving innocent persons.
[P. 1429] A
PLD 1996 SC 138.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(b)--Criminal Procedure Code, (V of 1898), S. 374--Conviction and sentence--Murder reference--Challenged--Qatl-e-amd--Modification in quantum of sentence--Sentence altered--Mitigating circumstances---The mere relationship of prosecution witnesses with deceased and inter-se is not sufficient to discredit their testimony--Wherein august Supreme Court of Pakistan observed that implicit reliance could be placed on statement of an injured witness and noted with some concern that in entire operative part of impugned judgment passed by High Court no discussion had taken place as to why High Court had ignored or disbelieved ocular account furnished by minor and injured eye-witness namely Sofia Siddiqui of that case--The promptitude in reporting matter to police also corroborates case of prosecution as against appellants--This remarkable promptitude in reporting matter to police establishes presence of witnesses at place of occurrence, at time of occurrence and supports their narrative--Reference is made to judgment--Prosecution is bound by law to exclude all possible extenuating circumstances in order to bring charge home to accused for award of normal penalty of death--Appellant in peculiar circumstance of this case, deserves consideration to extent of his sentence one out of two provided u/S. 302(b) of, P.P.C.---It is not determinable in this case as to what was real cause of occurrence and as to what had actually happened immediately before occurrence and elicited such a colossal retort from appellant, which had resulted into death of deceased therefore, in our view death sentence awarded to appellant is quite castigatory--Held: In number of judgments of august Supreme Court of Pakistan that if a specific motive has been alleged by prosecution, then it is duty of prosecution to establish said motive through cogent and confidence inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of accused--While treating it a case of mitigation--In light of above discussion, conviction of appellant as awarded by learned trial Court through abovementioned judgment, is maintained but sentence of death awarded to appellant under Section 302(b), P.P.C. is altered to imprisonment for life--Appeal dismissed.
[Pp. 1429, 1431, 1432, 1440, 1441 & 1442] B, C, D, F, G & H
2009 SCMR 99, 2021 SCMR 149, PLD 2019 SC 261, 2008 SCMR 784, 1993 SCMR 1660, 2011 SCMR 93 and 2018 SCMR 911.
Quantum of sentence--
----Principle--It is a well-recognized principle by now that question of quantum of sentence requires utmost attention and thoughtfulness on parts of Courts. [P. 1440] E
2009 SCMR 1188.
Syed Zeeshan Haider, Advocate for Appellants.
Ch. Asghar Ali Gill, Deputy Prosecutor General for State.
Syed Jamil Anwar Shah, Advocate for Complainant.
Date of hearing: 11.1.2022.
PLJ 2022 Cr.C. 1418 (DB)
[Lahore High Court, Bahawalpur Bench]
Present: Sadiq Mahmud Khurram and Ali Zia Bajwa, JJ.
MUHAMMAD SAIFAL etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 413-J, 414-J & M.R No. 12 of 2019, heard on 11.1.2022.
Judgment
Sadiq Mahmud Khurram, J.--Muhammad Saifal son of Hazoor Bakhsh and Hazoor Bakhsh son of Allah Dewaya (convicts) were tried along with Munir Ahmed son of Khushi Muhammad ( since acquitted) by the learned Additional Sessions Judge, Liaquatpur in case FIR No. 206 of 2018 dated 02.05.2018 registered at Police Station City Liaquatpur, District Rahim Yar Khan in respect of offences under Sections 302, 324 and 34, PPC for committing the Qatl-i-Amd of Ahmad Mehmood son of Muhammad Ajmal (deceased). The learned trial Court vide judgment dated 27.06.2019, convicted Muhammad Saifal son of Hazoor Bakhsh and Hazoor Bakhsh son of Allah Dewaya (convict) and sentenced them as infra:
Muhammad Saifal son of Hazoor Bakhsh:
Death under Section 302(b), PPC as Tazir for committing Qatl-i-Amd of Ahmad Mehmood son of Muhammad Ajmal (deceased) and directed to pay Rs. 300,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was directed to undergo further six months of simple imprisonment.
The convict was ordered to be hanged by his neck till dead.
Hazoor Bakhsh son of Allah Dewaya:
Rigorous Imprisonment for three years under Section 337-A-(ii), PPC and directed to pay Arsh of Rs. 1,02,796/- to the injured namely Hassan Mehmood (PW-2) and to remain in jail till the payment of the said amount of Arsh and his imprisonment in lieu of failure to pay Arsh was to be treated as simple.
The convict namely Hazoor Bakhsh son of Allah Dewaya was also extended the benefit available under Section 382-B of Code of Criminal Procedure, 1898 by the learned trial Court.
Munir Ahmed son of Khushi Muhammad, the co-accused of the convicts was, however, acquitted by the learned trial Court.
2. Feeling aggrieved, Muhammad Saifal son of Hazoor Bakhsh (convict) lodged Criminal Appeal No. 413-J of 2019 through jail assailing his conviction and sentence. Feeling aggrieved, Hazoor Bakhsh son of Allah Dewaya (convict) lodged Criminal Appeal No. 414-J of 2019 through jail assailing his conviction and sentence. The learned trial Court submitted Murder Reference No. 12 of 2019 under Section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Saifal son of Hazoor Bakhsh. We intend to dispose of the Criminal Appeal No. 413-J of 2019, Criminal Appeal No. 414-J of 2019 and Murder Reference No. 12 of 2019 through this single judgment.
3. Precisely the necessary facts of the prosecution case, as narrated by Hassan Mehmood (PW-2), the injured witness of the case, are as under:
“On 02.05.2018 at about 06:00 p.m I along with my father. Muhammad Ajmal and Ahmed Mehmood (since deceased) was present in my house. Accused Hazoor Bakhsh, Saifal and Zahoor Ahmed were present in front of my house in order to thrash their wheat crop by thrasher. The dust and particles of chaff were coming into my house from the thrasher. I along with my father Muhammad Ajmal and my brother Ahmed Mehmood (since deceased) forbade the workers of thrasher to change the direction of the thrasher as my father was a patient of asthma but they denied to do the same. In the meanwhile, Munir Ahmed proprietor of thrasher raised Lalkara to other accused to teach us a lesson for forbidding them from doing their work through thrasher, whereupon Hazoor Bakhsh accused present in the Court out of annoyance, gave a hatchet blow on left side of my head. Saifal accused present in the Court gave a fire shot to Ahmed Mehmood (since deceased) which hit him on left side of his navel. He made a second fire shot which hit Ahmed Mehmood deceased on upper side of his left thigh. Zahoor Ahmad made two fire shots which hit on upper side of my left. De thigh. The PWs namely Siddique and Ihsan came there and witnessed the occurrence. The PWs rescued us from the assailants by beseeching them, whereupon the accused persons decamped there-from. Then we attended to Ahmed Mehmood and were going to Hospital with him but he breathed his last in way to the THQ, Hospital Liaquatpur. Thereafter, we reached THQ, Hospital, Liaquatpur where police also reached. There my father Muhammad Ajmal presented an application to the police. Police also recorded my statement. My medical examination was conducted firstly at THQ, Hospital Liaquatpur where after, I was referred to Sheikh Zaid Hospital, Rahim Yar Khan.”
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 accused were sent to face trial. The learned trial Court framed the charge against the accused on 07.02.2019, 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 seventeen witnesses recorded. The ocular account of the case was furnished by Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3). Amjad Ali 605/HC (PW-11) stated that on 02.05.2018 he recorded the formal F.I.R (Exh.PY) and further stated that on the same day Abdul Rasheed, SI (PW-4) handed over to him two sealed parcels said to contain blood-stained earth and empties taken from the place of occurrence and on 21.05.2018 he handed over the said two sealed parcels to Abdul Rasheed, SI (PW-4) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Amjad Ali 605/HC (PW-11) further stated that on 08.06.2018 Saifullah Khan Inspector (PW-7) handed over to him two sealed parcels said to contain the weapons recovered from the appellant and on 26.06.2018 he handed over the said sealed parcels to Khalid Mehmood, ASI (PW-17) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Khalil Ahmad Patwari (PW-14) prepared the scaled site-plan of the place of occurrence (Exh.PZ). Nasir Ali, SI (PW-10) investigated the case on 02.05.2018 and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court. Abdul Majeed, SI (PW-15) investigated the case on 25.06.2019 and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court. Shahzad Arshad, SI (PW-16) investigated the case from 02.10.2018 till 04.12.2018 and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court. Abdul Rasheed, SI (PW-4) investigated the case from 02.05.2018 till 21.05.2018 and detailed the facts of the investigation as conducted by him in his statement before the learned trial
Court. Sadiq Hussain, SI (PW-5) investigated the case from 02.07.2018 till 27.09.2018 and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court. Bashir
Ahmad, SI (PW-8) investigated the case on 10.06.2018 and detailed the facts of the investigation as conducted by him in his statement
before the learned trial Court Saif Ullah Khan, Inspector (PW-7) investigated the case from 28.05.2018 till 10.06.2018, arrested both the appellants in this case on 05.06.2018 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. Junaid Nadeem (PW-9) examined, who on 02.05.2018 was posted as Medical Officer at the THQ hospital, Liaquatpur and on the same day conducted the post- mortem examination of the dead body of the deceased namely Ahmad Mehmood son of Muhammad Ajmal. Dr. Junaid Nadeem (PW-9) on conducting the post-mortem examination of the dead body of the deceased namely Ahmad Mehmood son of Muhammad Ajmal observed as under:--
“DESCRIPTION OF INJURIES.
Injuries as checked at that time were as under,
Injury No. 1:
Wound 2X2cm at the abdomen 4" to 5" away from the umbilicus on left side (entry wound) the wound is blind.
Injury No. 2.
Wound on the left leg on the upper side (2X2cm).
………………………………………………..
Probable time elapsed.
(a). Between injury and death: approximately 02 hours.
b). Between death and postmortem: approximately 02 hours.
Final opinion.
While conducting the autopsy I observe the two wound (injury by fire-arm) first fire-arm injury penetrated from the abdominal cavity left side 4" to 5" from the umbilicus, blind deep which ruptured deep abdominal vessels (aorta and vein) due to which approximately 2 to 3 litter of blood was present in the abdominal cavity and due to the intra-abdominal bleed, the person went into the hemorrhagic shock which leads to the death. Injury No. 2 only lead to the muscle injury.”
On the same day i.e., 02.05.2018, Dr. Junaid Nadeem (PW-9) medically examined the injured namely Hassan Mehmood (PW-2) and observed as under:--
“Description of injuries.
1. Lacerated wound that has rough margins in a zigzag shape 7X6cm with skull exposed.
2. Entry wound (fire-arm injury) 2X2cm deep on the left aspect of the thigh on upper side.
3. Entry wound (fire-arm injury) 2X2cm deep on the left aspect of the thigh approximately 1.5 inches lower the upper injury.
After first examination patient condition was critical and injured was immediately referred to Shiekh Zayed Hospital Rahim Yar Khan and was discharged on 07.05.2018. I also received operation note from surgical unit to Sheikh Zayed Hospital Rahim Yar Khan. According to the opinion of surgical expert there were two wounds on lateral aspect of left thigh and lacerated wound on the scalp with irregular margins of 7X6cm square. Neurovascular bundle intact. Patient was managed conservatively in ward after stabilization. On 07.05.2018 patient was discharged. I also received surgical notes Exh.PQ and discharge certificate Exh. PR from Sheikh Zayed Hospital Rahim Yar Khan.
Duration.
Probable duration of Injury 1-2 hours.
Kind of weapon.
Fire-arm (pistol) and blunt.
Final opinion.
The final opinion of injuries was as under:
Injury No. 1 was declared as Shajjah-i-Mudahiha (sic).
Injuries No. 2 & 3 were declared as Jurh-ghyr-jaifa-mutlahima (sic).”
The prosecution also got Dr. Muhammad Usman Tariq (PW-13) examined who on 03.05.2018 was posted as Registrar Surgical Unit-II at Sheikh Zayed Hospital Rahim Yar Khan and on the same day medically examined the injured namely Hassan Mehmood (PW-2) and submitted his opinion (Exh. PQ) with regard to the injuries observed by him on the person of Hassan Mehmood (PW-2).
7. On 24.06.2019, the learned Assistant District Public Prosecutor gave up the prosecution witness namely Muhammad Siddique as being unnecessary. On 26.06.2019, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PCC) relating to the blood- stained earth and the hatchet recovered from the appellant namely Hazoor Bakhsh and the report of Punjab Forensic Science Agency, Lahore (Exh.PDD) relating to the comparison of the empties with the pistol recovered from the possession of the appellant namely Muhammad Saifal.
8. After the closure of prosecution evidence, the learned trial Court examined the appellants namely Muhammad Saifal son of Hazoor Bakhsh and Hazoor Bakhsh son of Allah Dewaya under Section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, they replied that they had been involved in the case falsely and were innocent. The appellants namely Muhammad Saifal son of Hazoor Bakhsh and Hazoor Bakhsh son of Allah Dewaya opted not to get themselves examined under Section 340(2) Cr.P.C and did not adduce any evidence in their defence.
9. At the conclusion of the trial, the learned Additional Sessions Judge, Liaquatpur, convicted and sentenced the appellants as referred to above.
10. The contention of the learned counsel for the appellants is that the whole case is fabricated and false. The learned counsel for the appellants argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellants further contended that the statements of Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) were not worthy of any reliance. The learned counsel for the appellants submitted that the learned trial Court while disbelieving the same evidence had acquitted Munir Ahmed son of Khushi Muhammad, the co-accused of the appellants and the conviction awarded to the appellant based on the same evidence was not justified. The learned counsel for the appellants also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellants finally submitted that the prosecution has totally failed to prove the case against the appellants beyond the shadow of doubt.
11. On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the deceased died as a result of injuries suffered at the hands of the appellant namely Muhammad Saifal. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3). The learned Deputy Prosecutor General along with the learned counsel for the complainant further argued that the recovery of the pistol (P-7) from the appellant namely Muhammad Saifal and the report of Punjab Forensic Science Agency, Lahore (Exh. PDD) and the recovery of the hatchet (P-9) from the appellant namely Hazoor Bakhsh and the report of the Punjab Forensic Science Agency, Lahore (Exh. PCC) also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of the appeals.
12. We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance have perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3). These prosecution witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) were related to each other and the deceased. Their relationship with the deceased is also on record. The deceased namely Ahmad Mehmood was the son of Muhammad Ajmal (PW-1) and the brother of Hassan Mehmood (PW-2). All the three prosecution witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) explained their presence at the place of occurrence categorically. We have noted that all the prosecution witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) in a very natural and forthright manner, narrated the occurrence and gave each and every feature of the same with consistency. The presence of all the three prosecution witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) at the place of occurrence was quite probable and natural. The occurrence in the present case took place just outside the house of the deceased namely Ahmad Mehmood and of the complainant namely Muhammad Ajmal (PW-1) and Hassan Mehmood (PW-2). Both the prosecution witnesses namely Muhammad Ajmal (PW-1) and Hassan Mehmood (PW-2) explained that when the accused started to work the thresher machine, they went from their house along with the deceased to the place of occurrence in order to request the accused to stop the thresher machine as the chaff from the same was causing difficulty in breathing to Muhammad Ajmal (PW-1), however, the accused got annoyed and the occurrence took place. Both the prosecution witnesses namely Muhammad Ajmal (PW-1) and Hassan Mehmood (PW-2) were cross-examined at length with regard to their arrival at the place of occurrence and both the said prosecution witnesses namely Muhammad Ajmal (PW-1) and Hassan Mehmood (PW-2) gave consistent and unswerving evidence in this regard. Hassan Mehmood (PW-2) during cross-examination explicated as under:
“I reached the spot at 06:00 p.m. due to coming of chaff in our house. I, my father Muhammad Ajmal and Ahmad Mehmood were present in our house at about 06:00p.m. I, my father Muhammad Ajmal and Ahmad Mehmood went to stop the thrasher and to Munir and Hazoor Bakhsh. ”
During the course of the investigation, Abdul Rasheed, SI (PW-4), 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. (Exh. PB). The report of the Punjab Forensic Science Agency, Lahore (Exh. PCC) 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 of the place of occurrence (Exh. PH) as prepared by Abdul Rasheed, SI (PW-4) and the scaled site-plan of the place of occurrence (Exh. PZ) as prepared by Muhammad Khalil Ahmad Patwari (PW-14). The perusal of the said rough site-plan of the place of occurrence (Exh. PH) as prepared by Abdul Rasheed, SI (PW-4) and the scaled site-plan of the place of occurrence (Exh. PZ) as prepared by Muhammad Khalil Ahmad Patwari (PW-14) clearly shows that the house of the deceased namely Muhammad Ahmad and of the complainant of the case namely Muhammad Ajmal (PW-1) and Hassan Mehmood (PW-2) is clearly marked in the same and has been shown on the southern side of the place of occurrence at a meagre distance of about only two Karams from the same. Muhammad Ihsan (PW-3) also explained that he was resident near to the place of occurrence and was present in his land when he was attracted to the place of occurrence after hearing the hue and cry of the prosecution witnesses namely Muhammad Ajmal (PW-1) and Hassan Mehmood (PW-2) and the deceased namely Ahmad Mehmood. During cross-examination, Muhammad Ihsan (PW-3) explained as under:
“On 02.05.2018 on hearing hue and cry I reached the spot. When I reached the spot deceased Ahmad Mehmood, complainant Muhammad Ajmal and Hassan Mehmood and accused party were talking with each other for 10/15 minutes. The adjacent killa to the place of occurrence is owned by me, where I and Muhammad Sadique were already present.
………………
On the eastern side my land is situated, on southern side the house of Muhammad Ajmal complainant is situated, on western side there is a mosque and on northern side there is land of Hazoor Bakhsh accused. We were standing on eastern side of the place of occurrence.” (emphasis supplied) .
In a similar manner, the other two prosecution witnesses namely Muhammad Ajmal (PW-1) and Hassan Mehmood (PW-2) also explained the arrival of Muhammad Ihsan (PW-3) at the place of occurrence and on being cross-examined Hassan Mehmood (PW-2) explained as under:
“When Hazoor Bakhsh gave a hatchet blow to me we had raised hue and cry. On our hue and cry Muhammad Sadique and Muhammad Ahsan PWs came there. The houses of Sadique and Ahsan are near to the place of occurrence in Basti Peer Bakhsh.”
Moreover, in Column No. 4 and at Page 4 of the inquest report (Exh. PT), the name of the prosecution witness namely Muhammad Ihsan (PW-3) has been mentioned as being the one present at the time of the preparation of the inquest report (Exh. PT), further proving his presence at the place of occurrence. The defence failed to disprove the fact that the place of occurrence was the same as deposed to by the witnesses. As the place of occurrence was very near to the place of residence of the prosecution witnesses namely Muhammad Ajmal
(PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3), therefore, their arrival at the place of occurrence and them witnessing the same cannot be looked at with any degree of doubt. During the cross-examination, the prosecution witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) remained consistent with regard to the sequence of the occurrence and also explained their arrival at the place of occurrence, prior to the occurrence. All the three prosecution witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) were subjected to extensive cross-examination but the defence had failed to make any crack in their deposition and the veracity of their statements was established. The august Supreme Court of Pakistan in the case of “Ghulam Ali and another versus 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.”
Hence, in view of the above facts, the prosecution witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3), by no stretch of the imagination, can be declared as chance witnesses. We have also appreciated the fact that according to the Column No. 8 of the inquest report (Exh. PT), 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 and mouth of the deceased further proves the prosecution's version regarding the presence of the witnesses at the place and time of occurrence. Additionally, Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) being close relatives of the deceased, had no reason to falsely implicate the appellants in the commission of the offence or substitute the appellants namely Muhammad Saifal and Hazoor Bakhsh and letting off the real culprits. There is no such material available on record that would indicate substitution of the appellants in the case with the real culprits. Substitution is a phenomenon of a rare manifestation 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 appellants namely Muhammad Saifal and Hazoor Bakhsh have not been able to establish any animosity of the prosecution witnesses for their false involvement in the case. Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3), in a forthright manner, held the appellant namely Muhammad Saifal responsible for the murder of Ahmad Mehmood (deceased) and held the appellant namely Hazoor Bakhsh responsible for causing the injury to the prosecution witness namely Hassan Mehmood (PW-2) on his head. The 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."
Reference is made to the judgment in the case titled as Ghulam Murtaza v. The State (2021 SCMR 149) wherein the August Supreme Court of Pakistan was pleased to observe as under:
“Although the deceased-Mst. Saima Bibi is the daughter-in-law of the eye- witness Mst. Rukhsana (PW.7) but it has been settled by this Court that mere relationship of a witness with the victim would not discard her/his evidence if it is otherwise confidence inspiring and trustworthy.”
Furthermore, in the incident in issue, the weapons had been used from very close proximity and, thus, it would not be difficult for the complainant party to identify the present appellants, who were well known to all of them. There is no evidence on record that the said witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) were motivated by any enmity to depose against the appellants. We have scrutinized the evidence of the prosecution witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) and find that they proved themselves to be truthful witnesses and implicit reliance can be placed upon their statements.
14. Furthermore, the presence of the prosecution witness namely Hassan Mehmood (PW-2) at the place of occurrence cannot be doubted as he had the stamp of injuries on his body suffered at the hands of the accused including the appellant namely Hazoor Bakhsh. The prosecution got Dr. Junaid Nadeem (PW-9) and Dr. Muhammad Usman Tariq (PW-13) examined who both medically examined the injured namely Hassan Mehmood (PW-2) on 02.05.2018 and 03.05.2018 respectively. Both the witnesses namely Dr. Junaid Nadeem (PW-9) and Dr. Muhammad Usman Tariq (PW-13) observed that Hassan Mehmood (PW-2) had suffered three injuries; one on his head whereas two on his left thigh. Dr. Junaid Nadeem (PW-9) stated that he had observed a lacerated wound, in a zigzag shape, measuring 7 cm x 6cm, present on the head of Hassan Mehmood (PW-2) and the skull bone was exposed. The appellant namely Hazoor Bakhsh has been saddled with the responsibility of causing the said injury to Hassan Mehmood (PW-2). Dr. Junaid Nadeem (PW-9) further opined that Hassan Mehmood (PW-2) had suffered the said injury within 1-2 hours of his examination by him, when Dr. Junaid Nadeem (PW-9) had examined Hassan Mehmood (PW-2) at 7.05 p.m. and the occurrence had taken place at about 6.00 p.m. Dr. Junaid Nadeem (PW-9) noted two other injuries present on the left thigh of Hassan Mehmood
(PW-2) caused by a fire-arm weapon, which injuries were allegedly caused to Hassan Mehmood (PW-2) by Zahoor Ahmad (since declared a proclaimed offender), the co-accused of the appellants. It was also observed by Dr. Junaid Nadeem (PW-9) that at the time of medical examination of Hassan Mehmood (PW-2), his condition was critical and therefore Hassan Mehmood (PW-2) was immediately referred to Sheikh Zayed Hospital Rahim Yar Khan where Hassan Mehmood
(PW-2) was treated by Dr. Muhammad Usman Tariq (PW-13). The said observations and the opinions of both the witnesses namely Dr. Junaid Nadeem (PW-9) and Dr. Muhammad Usman Tariq (PW-13) provide further corroboration of the ocular account as furnished by the prosecution witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) making the same inherently trustworthy. The august Supreme Court of Pakistan in the case of Khadim Hussain vs. The State (P L D 2010 Supreme Court 669) has held as under:
“We have not been persuaded to agree with the prime contention of learned Advocate Supreme Court on behalf of appellant that the ocular version could not be substantiated by any corroboratory material being devoid of merit for the simple reasons that ocular version finds full support from the medical evidence as is indicative from the nature of fire-arm injuries received by Abdul Latif, deceased. Besides that Muhammad Shafique (P.W.8), Mst. Anwar Mai (P.W.11) and Muhammad Akram had also received fire-arm injuries as per medical evidence as furnished by Dr. Anwar-ul-Haq, P.W.17.”
Reliance is also placed on the case of “Khadija Siddiqui and another vs. Shah Hussain and another” (PLD 2019 Supreme Court 261) wherein the august Supreme Court of Pakistan observed that implicit reliance could be placed on the statement of an injured witness and noted with some concern that in the entire operative part of the impugned judgment passed by the High Court no discussion had taken place as to why the High Court had ignored or disbelieved the ocular account furnished by the minor and injured eye-witness namely Sofia Siddiqui of that case.
15. As mentioned above, the occurrence in question had admittedly taken place in broad daylight at 06.00 p.m. and the same, therefore, could not have gone un-witnessed nor could have the culprits escaped unobserved. As it was a broad daylight occurrence and because of the fact that the appellants were known to all the three witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3), the question of the misidentification of the appellants namely Muhammad Saifal and Hazoor Bakhsh does not arise. We have also appreciated the fact that the occurrence, in this case, took place at about 06.00 p.m. on 02.05.2018 and was reported by the complainant namely Muhammad Ajmal (PW-1) to the police with remarkable promptitude. Muhammad Ajmal (PW-1) submitted his written application (Exh. P.A.) to Nasir Ali, SI (PW-10) at about 6.30 p.m., as stated by Muhammad Ajmal (PW-1), inside the THQ hospital Liaquatpur, on the same day. On the basis of the written application (Exh. PA) of the complainant namely Muhammad Ajmal (PW-1), the formal F.I.R. (Exh.PY) was registered at 09.50 p.m. by Amjad Ali 605/HC (PW-11) at the Police Station. Thus, it is apparent that the written application (Exh. PA) of the complainant namely Muhammad Ajmal (PW-1) was got submitted with noteworthy swiftness, especially when Muhammad Ajmal (PW-1), the complainant of the case, had suffered the trauma of the death his son and serious injuries to
his other son namely Hassan Mehmood (PW-2). Muhammad Ajmal (PW-1), not only named the appellants but also mentioned each and every minor as well as material fact of the incident in his written application (Exh. PA), which of course excludes the possibility of deliberation or consultation regarding the false implication of the appellants in the instant case. The salient features of the occurrence have been elaborately explained in the written application (Exh. PA). The promptitude in reporting the matter to the police also corroborates the case of the prosecution as against the appellants. This remarkable promptitude in reporting the matter to the police establishes the presence of the witnesses at the place of occurrence, at the time of occurrence and supports their narrative. 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 F.I.R. if they had not been with the deceased persons at the time of their death.”
Reliance is also placed on the case of Muhammad Arshad versus The State (2020 SCMR 2025) wherein it has been held as under:
“There is no denial to this fact that the instant occurrence has taken place in broad daylight in which one person was done to death in a brutal manner whereas 02 women folk were given severe injuries. The crime report was lodged with promptitude, although the inter-se distance between the place of occurrence and the police station is 10-KM. The facts and figures narrated above, rules out any possibility of deliberation and consultation. Further that there is only single accused nominated in the crime report which shows the fairness of the prosecution which normally is against the prevalent custom in our society.”
Reliance is also placed on the case of Noor Sultan and others versus The State (2021 SCMR 176) wherein it has been held as under:
“The instant occurrence has taken place on 28.02.2020 at 6.15 p.m. while the matter was reported to the police within 2.15 hours whereas inter-se distance between the place of occurrence and police station is 16 kilometers. Promptness in reporting the matter to the police reflect that there is no chance of any consultation or deliberation at the part of prosecution.”
Reliance is also placed on the case of “Shaheen Ijaz Alias Babu versus The State” (2021 SCMR 500) wherein it has been held as under:
“ ……….petitioner's nomination in a broad daylight incident by resident witnesses hardly admits a space to entertain any hypothesis of mistaken identity or substitution. Prompt recourse to law straight at the police station excludes every possibility of deliberation or consultation.”’
Reference is also made to the judgment in the case titled as “Muhammad Aslam v. The State” (2012 SCMR 593) wherein the august Supreme Court of Pakistan was pleased to observe as under:
“F.I.R. in the present case was recorded with a promptitude and in such circumstances prosecution has been able to prove the case against the appellant beyond any shadow of doubt.”
During the course of the trial, it was proved that the written application (Exh. PA) of Junaid Iqbal (PW-1), upon the basis of which the formal F.I.R (Exh.PA/3) was registered, was a genuine document and was made spontaneously, naturally and contained the true facts, devoid of any manipulation. Furthermore, as per Column No. 11 of the inquest report (Exh. PT), at the time of preparation of the same, the blood of the deceased was in a fluid state and had not coagulated at that time. This also proves that the matter was reported to the police with promptitude by the witnesses. Additionally, the post-mortem examination of the dead body of the deceased was also conducted with great promptitude and according to the opinion of Dr. Junaid Nadeem (PW-9), who conducted the post-mortem examination of the dead body of the deceased namely Ahmad Mehmood son of Muhammad Ajmal, the time which elapsed between the receiving of the injuries and the death of the deceased examination was only about two hours the time which lapsed between the death and the post-mortem examination was also only about two hours. In this manner, it is proved that the prosecution case was free from any deferral in reporting the matter to the police, evidencing the truthfulness of the same.
16. The medical evidence produced by the prosecution in the case, proves that the deceased namely Ahmad Mehmood had received the fatal injuries on the vital parts of his body and he succumbed to the said injuries caused by the appellant namely Muhammad Saifal and that the prosecution witness namely Hassan Mehmood (PW-2) suffered a serious injury on his head at the hands of the appellant namely Hazoor Bakhsh. The medical evidence fully supports the ocular account. According to Dr. Junaid Nadeem (PW-9), who conducted the post-mortem examination of the dead body of the deceased namely Ahmad Mehmood son of Muhammad Ajmal, he observed a wound of the dimension of 2 cm x 2 cm, present on the abdomen, 4 inches to 5 inches away from the umbilicus on the left side and observed another wound of the dimension of 2 cm x 2 cm present on the left leg, on the upper side, of the dead body of the deceased. Dr. Junaid Nadeem
(PW-9) further opined that the said injuries observed by him on the dead body of the deceased had been caused by a fire-arm weapon. Dr. Junaid Nadeem (PW-9) additionally stated that deep abdominal vessels (aorta and vein) were ruptured due to the injury found present on the abdomen of the deceased which resulted in the loss of approximately
2 to 3 litres of blood making the deceased go into hemorrhagic shock, leading to his death. The appellant namely Muhammad Saifal has been saddled with the responsibility of causing the said fatal injuries to the deceased namely Ahmad Mehmood. In this manner, the ocular account is fully verified by the medical evidence available on record. Furthermore, the prosecution witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) were also questioned with regard to the distance from which the appellant namely Muhammad Saifal had fired at the deceased and the prosecution witnesses gave the distance as being about ten feet. Hassan Mehmood (PW-2) during cross-examination stated as under:
“The first shot was made at my brother from a distance of 10/12 foot (sic)”
Similarly, Muhammad Ihsan (PW-3) also stated during cross-examination as under:
“Saifal made fire shot from a distance of 10 feet.”
The said approximation of the distance from which the deceased was fired at by the appellant namely Muhammad Saifal as stated by the prosecution witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) was confirmed by Dr. Junaid Nadeem (PW-9), who conducted the post mortem examination of the dead body of the deceased namely Ahmad Mehmood son of Muhammad Ajmal. Dr. Junaid Nadeem (PW-9) on being cross-examined stated as under:
“The fire was short distance of about 10/12 feet”
This consistency in the prosecution case, with regard to the distance from which the deceased was fired at, is reflective of the truthfulness of the prosecution witnesses. As mentioned above, both the witnesses namely Dr. Junaid Nadeem (PW-9) and Dr. Muhammad Usman Tariq (PW-13) observed that Hassan Mehmood (PW-2) had suffered three injuries, one on his head whereas two on his left thigh and the appellant namely Hazoor Bakhsh has been saddled with the responsibility of causing the injury observed on the head of Hassan Mehmood (PW-2). The role of the appellant namely Hazoor Bakhsh was further got explored during the cross-examination. Hassan Mehmood (PW-2) on being cross-examined replied as under:
“In the meanwhile, Hazoor Bakhsh gave a hatchet blow on left side of my head.”
Obviously, Hassan Mehmood (PW-2) was not questioned as to which side of the hatchet was used by the appellant Hazoor Bakhsh to cause the injury. Dr. Junaid Nadeem (PW-9) further opined that Hassan Mehmood (PW-2) had suffered the said injury within 1-2 hours of his examination by him, when Dr. Junaid Nadeem (PW-9) had examined Hassan Mehmood (PW-2) at 7.05 p.m. and the occurrence had taken place at about 6.00 p.m. In view of the above discussion, it is ascertained and proved that the intent of the appellant namely Muhammad Saifal was to cause death of Ahmad Mehmood (deceased) and that he is guilty of Qatl-i-Amd of Ahmad Mehmood (deceased) whereas the appellant namely Hazoor Bakhsh was guilty of causing the injury observed on the head of Hassan Mehmood (PW-2) declared to be of the kind of Shajjah-i-Hashimah.
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 Munir Ahmed son of Khushi Muhammad and the conviction awarded to the appellants 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 appellants. The prosecution witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) did not assign any role to Munir Ahmed son of Khushi Muhammad, since acquitted, the co-accused of the appellants, of causing any injury on the person of the deceased namely Ahmad Mehmood or the injured namely Hassan Mehmood (PW-2). During the course of the investigation, nothing was recovered from the possession Munir Ahmed son of Khushi Muhammad, since acquitted, the co-accused of the appellants. 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 Munir Ahmed son of Khushi Muhammad (since acquitted), the co-accused of the appellant, indeed had a case distinguishable from the appellants namely Muhammad Saifal and Hazoor Bakhsh.
18. Regarding the recovery of the pistol (P-7) from the appellant namely Muhammad Saifal son of Hazoor Bakhsh, 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 pistol
(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 hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others vs. 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.”
Furthermore, the recovery of pistol (P-7) was shown to have been made on 08.06.2018 from the land of one namely Shaffan Lar, however, the said owner of the land from where the pistol (P-7) was recovered did not join the investigation of the case nor his statement was recorded by the Investigating Officer of the case. Saifullah Khan (PW-7), the Investigating Officer of the case, during cross-examination admitted as under:
“There was wheat crop on three sides of place of recovery of pistol and road on one side. The road is on eastern side of the place of recovery of pistol. The wheat crop was owned by one Shaffan Lar. I did not record the statement of said Shaffan Lar. ”
Moreover, it is also a matter of concern for us that when the wheat crop had been grown at the place from where the recovery of the pistol (P-7) was made from the appellant namely Muhammad Saifal, then how the pistol (P-7) remained undetectable for such a long time, which of course raises palpable doubt with regard to the recovery of the pistol (P-7) from the appellant namely Muhammad Saifal. With regard to the recovery of the hatchet (P-9) from the appellant namely Hazoor Bakhsh, we find that both the prosecution witnesses namely Saifullah Khan (PW-7), the Investigating Officer of the case and Muhammad Ihsan (PW-3) did not state that the recovered hatchet (P-9) was stained with blood and in absence of them stating so, we on our own, cannot presume the same. Another aspect regarding the recovery of the hatchet (P-9) from the appellant namely Hazoor Bakhsh is that the occurrence took place on 02.05.2018, whereas the hatchet (P-9) was sent to the office of Punjab Forensic Science Agency, Lahore, on 27.06.2018 and was analyzed on 26.07.2018. During such a long period the blood available on the hatchet (P-9) if any, would have disintegrated. It is not possible to believe that the blood available on the hatchet (P-9) had not disintegrated by the time the same was analyzed by the Punjab Forensic Science Agency, Lahore and it was, therefore scientifically impossible to detect the origin of the blood. The august Supreme Court of Pakistan in the case of “Faisal Mehmood vs. The State” (2016 SCMR 2138) has held as under:
“The report of the Chemical Examiner showing the recovered hatchet to be stained with blood is dated 20.12.2002 whereas the report of the Serologist showing the origin of the blood available on the recovered hatchet to be human blood is dated 25.05.2004. It was scientifically impossible to detect the origin of the blood after about two years of the occurrence because human blood disintegrates in a period of about three weeks.”
Therefore, the recovery of the pistol (P-7) from the appellant namely Muhammad Saifal and the recovery of the hatchet (P-9) from the appellant namely Hazoor Bakhsh does not further the case of the prosecution in any manner. In view of the above-mentioned facts, the alleged recovery of the pistol (P-7) from the appellant namely Muhammad Saifal and the recovery of the hatchet (P-9) from the appellant namely Hazoor Bakhsh are not proved and the same cannot be used as a circumstance against the appellants.
19. The motive of the occurrence, as mentioned by the prosecution witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) was that the accused being told to stop the thresher machine, as the chaff from the same was causing difficulty in breathing to Muhammad Ajmal (PW-1), the accused got annoyed and the occurrence took place. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. According to the prosecution witnesses namely Muhammad Ajmal (PW-1) and Hassan Mehmood (PW-2) the thresher machine was being run by some workers, however, during the course of the investigation and also before the learned trial Court, the said workers of the thresher machine were neither examined by the Investigating Officers of the case nor produced before the learned trial Court. Saifullah Khan, Inspector (PW-7), the Investigating Officer of the case, admitted during cross-examination as under:
“The thrasher and labour was of Munir accused. I have not recorded the statements of labourers regarding motive in my case diary but I orally interrogated them. I do not remember the names of said labourers. It is correct that I have not mentioned their full particulars in my case diary.”
Similarly, Abdul Rasheed, SI (PW-4), another Investigating Officer of the case, admitted during cross-examination that he did not investigate with regard to the labourers who on the day of occurrence were running the thresher machine. Abdul Rasheed SI (PW-4) during cross-examination stated as under:
“During my investigation I did not investigate concerning the ownership of tractor and thrasher and labour party that they belong to which caste .”
Furthermore, according to the statements of the prosecution witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) it was Munir Ahmad, (since acquitted), the co-accused of the appellants who refused to stop the thresher machine. Hassan Mehmood (PW-2) in his statement before the learned trial Court stated as under:
“In the meanwhile, Munir Ahmed proprietor of thrasher (sic) raised Lalkara to other accused to teach us a lesson for forbidding them from doing their work through thrasher
………………………
The owner of thrasher (sic) was Munir Gujjar.
……………….
Munir Ahmad refused to stop the tractor/to change the direction of thrasher (sic) ”.
Obviously, Munir Ahmad, the co-accused of the appellants was acquitted by the learned trial Court and no appeal against his acquittal is pending. When the accused namely Munir Ahmad, who had refused the stopping of the thresher machine, has been acquitted by the learned trial Court, then it cannot be said that the prosecution was able to prove the motive as alleged. We have also noted that the prosecution witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) admitted during cross-examination that prior to the deceased being fired at, a period of about 10/15 minutes had lapsed in the conversation between the appellants and the prosecution witnesses, however, no details of the said conversation have been provided. Hassan Mehmood (PW-2) during cross-examination stated as under:
“The quarrel continued between us for about 10/15 minutes in order to stop the thrasher”
Muhammad Ihsan (PW-3) during cross-examination stated as under:
“When I reached the spot deceased Ahmad Mehmood, complainant Muhammad Ajmal and Hassan Mehmood and accused party were talking with each other for 10/15 minutes”.
The above referred portion of the cross-examination of the prosecution witnesses namely Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3) fully reflects that though the conversation between the appellants and the prosecution witnesses continued for a considerable time, however, no minutiae were provided which would have enabled us to determine as to what had happened immediately prior to the occurrence which triggered the same. 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 namely Muhammad Saifal to have committed the Qatl-i-Amd of the deceased namely Ahmad Mehmood. 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 the prosecution remained unable to prove the motive as alleged.
20. We have disbelieved the evidence of prosecution qua the motive and the recovery of the pistol (P-7) from the appellant namely Muhammad Saifal and the recovery of the hatchet (P-9) from the appellant namely Hazoor Bakhsh in this case. However, even if the evidence of motive and of the pistol (P-7) from the appellant namely Muhammad Saifal and the recovery of the hatchet (P-9) from the appellant namely Hazoor Bakhsh is excluded from consideration, even then there is sufficient incriminating evidence available on the record against the appellants namely Muhammad Saifal son of Hazoor Bakhsh and Hazoor Bakhsh son of Allah Dewaya to prove the case of the prosecution against them. As discussed earlier, the prosecution case was fully proved through the evidence of the eye-witnesses namely Muhammad Ajmal (PW-1), Hassan Mehmood (PW-2) and Muhammad Ihsan (PW-3). 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. Junaid Nadeem (PW-9) and Dr. Muhammad Usman Tariq (PW-13) and, therefore, we hold that the prosecution has proved its case against the appellants namely Muhammad Saifal son of Hazoor Bakhsh and Hazoor Bakhsh son of Allah Dewaya beyond the shadow of any doubt.
21. Now coming to the quantum of sentence we have noted some mitigating circumstances in favour of the appellant namely Muhammad Saifal son of Hazoor Bakhsh, firstly, the evidence of recovery of the Pistol (P-7) from the possession of the appellant namely Muhammad Saifal son of Hazoor Bakhsh 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 a 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 to 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 normal penalty of death. We are convinced that the appellant namely Muhammad Saifal son of Hazoor Bakhsh, 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 and elicited such a colossal retort from the appellant, which had resulted into the death of the deceased namely Ahmad Mehmood, therefore, in our view the death sentence awarded to the appellant namely Muhammad Saifal son of Hazoor Bakhsh is quite castigatory. It has been held in 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), “Qaddan and others v. The State” (2017 SCMR 148) and “Ghulam Murtaza v. The State” (2021 S C M R 149).
22. In the light of above discussion, the conviction of the appellant namely Muhammad Saifal son of Hazoor Bakhsh, as awarded by the learned trial Court through the abovementioned judgment, is maintained but the sentence of death awarded to the appellant namely Muhammad Saifal son of Hazoor Bakhsh 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 thereof are 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 Saifal son of Hazoor Bakhsh. Consequently, with the above said modification in the sentence awarded to the appellant namely Muhammad Saifal son of Hazoor Bakhsh under Section 302 (b), PPC, the Criminal Appeal No. 413-J of 2019, is hereby, dismissed. The Criminal Appeal No. 414-J of 2019, as filed by the appellant namely Hazoor Bakhsh son of Allah Dewaya is also dismissed with the modification in the quantum of sentence awarded to the appellant namely Hazoor Bakhsh son of Allah Dewaya under Section 337-A(ii), PPC from Rigorous imprisonment for three years to that of already undergone by the appellant namely Hazoor Bakhsh son of Allah Dewaya, keeping in view the circumstances of the case, favouring the reduction in the period of rigorous imprisonment awarded to the appellant namely Hazoor Bakhsh son of Allah Dewaya. The punishment of Arsh of Rs. 1,02,796/- to be paid by the appellant namely Hazoor Bakhsh son of Allah Dewaya is however upheld and maintained. It is observed that if the appellant namely Hazoor Bakhsh son of Allah Dewaya fails to deposit the Arsh of Rs. 1,02,796/- in the next twenty one days, he shall be taken into custody and shall remain
imprisoned till the payment of Arsh amount by him and his imprisonment during the said period shall be treated as simple imprisonment. The sentence of the appellant namely Hazoor Bakhsh son of Allah Dewaya was suspended by this Court vide order dated 18.09.2019, and the appellant namely Hazoor Bakhsh son of Allah Dewaya is present before the Court on bail. The sureties of the appellant namely Hazoor Bakhsh son of Allah Dewaya shall stand discharged from their liability and the bail bonds submitted by the appellant namely Hazoor Bakhsh son of Allah Dewaya are hereby cancelled.
23. It is made clear that the observations made in this judgment shall not be relevant during the trial of the absconding
co-accused namely Zahoor Ahmad son of Hazoor Bakhsh (since declared a proclaimed offender) and his case shall be decided on the basis of the evidence adduced during the trial by the parties (prosecution and defence), strictly in accordance with the law.
24. Murder Reference No. 12 of 2019 is answered in Negative and the death sentence awarded to Muhammad Saifal son of Hazoor Bakhsh, is Not Confirmed.
(A.A.K.) Appeal dismissed
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