SAFDAR ABBAS Versus GHULAM SARWAR
ABDUL SAMI KHAN, J.--- Through this appeal under section 410, Cr.P.C. Safdar Abbas and Akhtar Abbas appellants have assailed the judgment dated 23.12.2011 passed by learned Additional Sessions Judge Jhang whereby the appellants were convicted under section 302(b), P.P.C. read with section 34, P.P.C. for committing Qatl-i-amd of Muhammad Bakhsh deceased and were sentenced to death each. They were also ordered to pay compensation of Rs.150,000/- (Rupees one lac and fifty thousand only) each to the legal heirs of the deceased under section 544-A, Cr.P.C. and in case of default thereof, the same shall be recovered as arrears of land revenue. On the other hand, the learned trial court has sent a Reference under section 374, Cr.P.C. for confirmation or otherwise of death sentence of the appellants, which has been numbered as Murder Reference No.101 of 2012. We propose to decide both these matters together through this single judgment.
The prosecution story set forth in FIR (Ex.CW5/A) is reproduced below:
"A piece of land measuring 100 Kanals, comprising Khewat No.863, Khatoni No.1219, Khasra No.175, lot No.569, situated at Chak No.10/1 Thal was allotted to Muhammad Ayub son of Muhammad Saleh, caste Nakyal resident of Kotli Azad Kashmir, who vide agreement dated 27.04.2003 sold out the same to Sultan son of Sher Muhammad, Rab Nawaz son of Muhammad Nawaz, caste Bhatti, residents of Chak No.10/1 Thal in lieu of Rs.1,50,000/- and received Rs.1,25,000/- as earnest money. Later on, Muhammad Ayub died and his legal heirs did not honour the agreement of their predecessor, due to which a suit for specific performance of agreement titled as "Sultan and others v. Mst. Khanum Bibi and others" was filed, wherein injunctive order was passed by the court. The complainant party had cultivated grain crop on the land, for which Mubeen Sagir tried to become superdar but he failed and Halqa Girdawar was appointed superdar who further appointed Muhammad Younis Qaiser Lumberdar as superdar of the crop. On 05.04.2008 at about 09:00 a.m. Muhammad Bakhsh, Qaiser, Miran, Sultan, Allah Ditta and Mst. Noor Mai started harvesting gram crop on the asking of superdar, when all of a sudden accused Safdar, Akhtar, Ashraf, Muzaffar sons of Chiragh and Chiragh son of Allah Dewaya all armed with sticks emerged there. Safdar raised lalkara to teach them a lesson for filing suit and harvesting crop. Muhammad Bakhsh came forward to beseech them, but was given a sota blow on right side of his head by Safdar accused. Akhtar Abbas accused gave sota blow to Muhammad Bakhsh on his head; Muhammad Ashraf accused gave sota blow, hitting on upper side of right eye. Sota blow given by Akhtar Abbas accused hit Muhammad Bakhsh on his shoulder near neck. Safdar accused again gave sota blow to Muhammad Bakhsh which hit on his head. Chiragh accused gave sota blows to Muhammad Bakhsh, which landed on his back and right wrist and he fell on the ground. Muzaffar accused gave sota blows on the legs of Muhammad Bakhsh when he had fallen on the ground. Mst. Noor Mai and Qaiser came forward to rescue Muhammad Bakhsh and accused Safdar gave sota blow to Mst. Noor Mai, hitting on her head. Akhtar accused gave sota blow to Mst. Noor Mai which hit on her left elbow. Ashraf accused also gave sota blow on the left wrist of Mst. Noor Mai and she also fell down. Chiragh accused gave sota blow to Qaiser Abbas which hit on his back. Ashraf accused gave sota blow to Qaiser Abbas which hit on his right hand. Akhtar accused gave sota blow to Qaiser Abbas which hit on his left shoulder. Safdar accused also gave two sota blows to Qaiser Abbas which hit him on back of his left hand and right thumb. On hearing hue and cry, the complainant, Imran and Allah Ditto attracted to the spot and witnessed the occurrence. The accused decamped while saying that they have fulfilled the order of Mubeen Sagir. On 04.04.2008 at about 04:00 p.m. Gulzar Hussain and Sultan went to Chenab Hotel, District Courts Jhang to take tea, where Iftikhar Ahmad and Mubeen Sagir were present along with Safdar, Akhtar Abbas, Muhammad Ashraf, Muzaffar sons of Chiragh and Chiragh son of Allah Dewaya. Iftikhar Hussain and Mubeen Sagir were asking them that unless they kill Sultan or any important person of his family, they will not give the land to them and that they will face the litigation and will also bear the expenditures thereof upon which Safdar and his companions assured them to do so.
3. On application (Ex.PG) moved by Ghulam Sarwar complainant, formal FIR No.133/08 (Ex.CW5/A) was registered on 05.04.2008 at Police Station 18-Hazari, District Jhang, in respect of offences under sections 302,148, 149, 109, P.P.C. After registration of FIR, investigation of the case was conducted by Amjad Hussain Shah S.I. (CW-6) and Hameed Ullah S.I. (CW-8), however, being dissatisfied with the investigation conducted by investigating officers, Ghulam Sarwar complainant (PW-5) filed private complaint before the trial court, wherein he narrated same facts about the occurrence which had been mentioned in FIR (Ex.CW5/A) and after usual formalities as prescribed in the Code of Criminal Procedure, 1898, the appellants and their co-accused Muhammad Ashraf, Muzaffar, Chiragh, Mubeen Sagir and Iftikhar Hussain were summoned to face the trial. Charge was framed against the accused on 29.09.2009, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case against the accused examined nine witnesses, while the trial court recorded statements of eight court witnesses. Ocular account has been furnished by Ghulam Sarwar complainant (PW-5), Muhammad Imran eye-witness (PW-6) and Qaiser Abbas injured (PW-7). Medical evidence has been furnished by Dr.Abdul Aziz Khalid (PW-1), lady Dr. Zubaida Akhtar (PW-2) and Dr. Muhammad Akram (CW-1). Dr. Abdul Aziz Khalid (PW-1) conducted postmortem examination on the dead body of Muhammad Bakhsh deceased, lady Dr. Zubaida Akhtar (PW-2) medically examined Mst. Noor Mai injured, while Dr. Muhammad Akram (CW 1) medically examined Muhammad Bakhsh deceased, Qaiser Abbas injured (PW-7) and Akhtar Abbas appellant. Amjad Hussain Shah S.I. and Hameed Ullah S.I. appeared before the learned trial court as CW 6 and CW-8 respectively and stated about various steps taken by them during the course of investigation. The remaining prosecution witnesses as well as court witnesses, more or less, are formal in nature. After placing on record the report of Chemical Examiner (Ex.PT) and the report of Serologist (Ex.PU), the prosecution closed its evidence. In their statements recorded under section 342, Cr.P.C. the accused controverted the allegations leveled against them by the prosecution and professed their innocence. However, they did not opt to make statements on oath under section 340(2), Cr.P.C. and also did not produce any evidence in their defence.
4. Upon culmination of trial, learned trial court found the case against the appellants to have been proved beyond any shadow of doubt and, thus, convicted and sentenced them as mentioned and detailed in paragraph No.1 above, whereas co-accused Muhammad Ashraf, Muzaffar, Chiragh and Iftikhar Hussain were acquitted of the charge by extending the benefit of doubt in their favour. Hence, this appeal and murder reference before this Court.
5. Learned counsel for the appellants, in support of this appeal, contend that the appellants are innocent; they have been falsely roped in this case by the complainant with mala fide intention and ulterior motive; the story narrated in FIR as well as in private complaint is false and afterthought; the PWs are closely related interse as well as to the deceased and they are not only interested witnesses but also inimical towards the appellants, whereas the prosecution could not produce even a single independent eye-witness of the occurrence before the trial court; the ocular account to the extent of Muhammad Ashraf, Chiragh, Muzaffar and Iftikhar has not only been disbelieved by the learned trial court but this Court has also discarded the ocular account to their extent while dismissing petition for special leave to appeal, so the witnesses who have been held unreliable to the extent of acquitted co-accused, cannot be relied upon to maintain the conviction and sentences of the appellants; even otherwise, there are glaring contradictions between the ocular account and medical evidence; the motive set up by the prosecution could not be proved during trial; nothing was recovered from the appellants; the reports of the Chemical Examiner and Serologist have been maneuvered by the prosecution; the prosecution has failed to prove its case beyond the shadow of doubt and as it is settled law that benefit of a slightest doubt has to be given to the accused not as a matter of grace but as a matter of right, so while accepting this appeal, Safdar Abbas and Akhtar Abbas appellants be acquitted of the charge.
6. Conversely, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes this appeal on the grounds that the matter was reported to the police sufficient promptitude and the appellants are nominated in FIR with specific role of giving sota blows to Muhammad Bakhsh deceased as well as Qaiser Abbas injured (PW-7) and Mst. Noor Mai injured; the appellants in league with their co-accused have done to death an innocent person and have injured two others, therefore, they do not deserve any leniency; the eye-witnesses had no reason to falsely depose against the appellants and the PWs are consistent on each and every minor as well as material point; the medical evidence fully supports the ocular account to the extent of appellants and the prosecution case gets independent corroboration from the recovery of weapons of offence on their pointing out; motive part of the prosecution case is also admitted fact and during investigation as well as duration trial, both the appellants categorically admitted their presence as well as active participation in the occurrence; the prosecution has successfully brought the guilt of appellants to the hilt and as there is no mitigating circumstance in this case, so the sentence of death was rightly awarded to the appellants, the same be maintained, appeal be dismissed and Murder Reference be answered in affirmative.
7. We have considered the arguments advanced by learned counsel for the appellants, learned Deputy Prosecutor General as well as learned counsel for the complainant and have also gone through the entire record with their able assistance.
8. Perusal of first information report (Ex.CW5/A) reveals that the incident in which Muhammad Bakhsh deceased lost his life and Qaiser Abbas (PW-7) along with Mst. Noor Mai sustained injuries took place on 05.04.2008 at about 09:00 a.m. On the same day at 02:00 p.m. Ghulam Sarwar complainant (PW-5) reported the incident to the police through written application (Ex.PG), in consequence of which FIR (Ex.CW5/A) was chalked out at 03:00 p.m. The distance between the place of occurrence and police station is about fourteen kilometers. Although there is a delay of five hours in reporting the matter to the police, yet it is well established on record that after the occurrence, the deceased and the injured were shifted by the complainant to Rural Health Center Rodu Sultan, which is a natural conduct as saving life of injured is always prime consideration. Record also shows that due to critical condition of Muhammad Bakhsh deceased, he was shifted from Rural Health Center Rodu Sultan to the District Headquarter Hospital Jhang, which definitely consumed considerable time. These facts have made crystal clear that the matter was reported to the police by the complainant with sufficient promptitude. Even otherwise, the delay in reporting the incident to the police, alone, is not sufficient to disbelieve the story of prosecution and the courts are obliged to keep in mind each and every aspect of the case while dispensing with criminal justice.
9. Before discussing prosecution evidence, we would like to observe here that the petition for special leave to appeal filed by the complainant against the acquittal of Muhammad Ashraf, Chiragh, Muzaffar and Iftikhar has already been dismissed and now only the case to the extent appellants is before us. The prosecution has tried to prove its case against the appellants through the statements of witnesses of ocular account i.e. Ghulam Sarwar complainant (PW-5), Muhammad Imran eye-witness (PW-6) and Qaiser Abbas injured (PW-7); medical evidence furnished by Dr. Abdul Aziz Khalid (PW-1), lady Dr. Zubaida Akhtar (PW-2) and Dr. Muhammad Akram (CW-1); recovery of sticks on the pointing out of the appellants and lastly the evidence of motive. Firstly, we would like to discuss the ocular account. We have observed that Ghulam Sarwar complainant while appearing in the witness box before the learned trial court as PW-5 leveled the same allegations and attributed the role of giving sota blows on the persons of Muhammad Bakhsh deceased as well as Qaiser Abbas injured (PW-7) and Mst. Noor Mai (given up being won over by the defence) to the appellants and the stance of Ghulam Sarwar complainant (PW-5) to the extent of appellants is duly supported by the testimonies of PW-6 Muhammad Imran and PW-7 Qaiser Abbas injured. It is worth mentioning that all these PWs were subjected to lengthy cross-examination, but the ocular account remained un-shattered and the defence failed to extract any favourable statement from their mouths to create doubt regarding their credibility and truthfulness to the extent of appellants. We would also like to observe here that presence of the appellants and their taking part in the occurrence is not denied by the defence. On the other hand, the presence of PWs at the spot has not been shattered during cross-examination as one of the eye-witnesses namely Qaiser Abbas (PW-7) sustained injuries during the incident, so the presence of PWs at the place of occurrence in the circumstances is also established. As already discussed above, it was a daytime occurrence which took place at 09:00 a.m. and admittedly the parties were known to each other prior to the occurrence. Furthermore, it is not a case of hit and run and the occurrence definitely lasted for some time. In these eventualities, there was no chance of mistaken identity of the appellants at the time of occurrence. Another important aspect of the case is that Ghulam Sarwar complainant (PW-5) and Qaiser Abbas injured (PW-7) are real sons of Muhammad Bakhsh deceased, while Muhammad Imran eye-witness (PW-6) is his son-in-law. Taking into consideration close relationship of the eye-witnesses with the deceased, particularly PW-5 and PW-7, it cannot be expected from them that they would let off the real culprits who had brutally murdered their loved one before their eyes to go scot-free, by implicating the appellants. Law is quite settled that substitution of real culprits especially in a case where the eye-witnesses had lost their close kith and kin is rare phenomenon. In this regard, reliance can be placed upon the case of "Sheraz Khan v. The State" (2010 SCMR 1772), wherein the Hon'ble Supreme Court of Pakistan has held as under:-
"No serious enmity whatsoever was alleged against Zaman Shah (P.W.7/complainant) and besides that being real father, the question of substitution of the real culprit with that of Sheraz Khan (appellant) does not arise which otherwise is a rare phenomenon. The statement of Zaman Shah (P.W.7/complainant) has been corroborated by Muslim Shah (P.W.8) who is real brother of deceased."
So far as the vehement argument of learned counsel for the appellants that Ghulam Sarwar complainant (PW-5), Muhammad Imran eye-witness (PW-6) and Qaiser Abbas injured (PW-7) are closely related inter se as well as with Muhammad Bakhsh deceased is concerned, it is well settled by now that mere relationship with the deceased does not make any witness interested. Similarly, there is no hard and fast rule of law that the depositions made by close relatives cannot be believed merely on the basis of their relationship interse or with the deceased. Reliance is placed on the case of "Muhammad Aslam v. The State" (2012 SCMR 593), wherein the Hon'ble Supreme Court of Pakistan has been pleased to observe as under:
In the present case ocular version has been furnished through the statement of P. W. 6 Haq Nawaz who is real son of the deceased Muhammad Nawaz and P.W.7 Ahmad Nawaz, the other eye- witness who is cousin of the complainant. So, both the eye-witnesses are closely related with each other and with the deceased inter se but mere relationship is not sufficient to term them as interested witnesses as there was no previous enmity between the parties. Both the eye-witnesses are residents of the same village where the incident took place and their presence at the spot has been established beyond any shadow of doubt. Both the eye-witnesses had made consistent statements against the appellant that he came at the spot duly armed with mouser and fired at the deceased.
After scrutinizing the statements of Ghulam Sarwar complainant (PW 5), Muhammad Imran eye-witness (PW-6) and Qaiser Abbas injured (PW-7) comprehensively, we do not find any serious infirmity, inconsistency and material contradiction or omission in their statements to the extent of appellants rather they unanimously explained all material points i.e. time, date and place of occurrence and manner in which the appellants done to death Muhammad Bakhsh deceased and injured Qaiser Abbas (PW-7) as well as Mst. Noor Mai (given up). The depositions made by these eye-witnesses to the extent of appellants not only inspired the confidence of learned trial court but the same has also satisfied our conscious to rely upon them.
10. Adverting to medical evidence, we have observed that Dr. Abdul Aziz (PW-1) conducted postmortem examination on the dead body of Muhammad Bakhsh deceased and observed eight injuries during postmortem examination, which, according to PW-1 were caused by blunt means. Similarly, lady Dr. Zubaida Akhtar (PW-2) medically examined Mst. Noor Mai (given up) and during medical examination, she (PW-2) observed three injuries on the person of Mst. Noor Mai. According to PW-2, all the injuries on the person of Mst. Noor Mai injured were caused by blunt weapon. We have also observed that Qaiser Abbas injured (PW-5) was medically examined by Dr. Muhammad Akram (CW-1) and during his medical examination, the doctor (CW-1) observed two injuries on his person, which according to CW-1, were also caused by blunt weapon. The postmortem report of Muhammad Bakhsh deceased is available on the file as Ex.PA, whereas medico legal certificates of Mst. Noor Mai (given up) and Qaiser Abbas injured (PW-7) are available on the file as Ex.PD and Ex.CW1/D. A careful perusal of postmortem report (Ex.PA) and medico legal certificates (Ex.PD and Ex.CWI/D) reflects that the medical evidence, to the extent of appellants, is in line with the ocular account. The discrepancies pointed out by learned counsel for the appellants between ocular account and medical evidence are to the extent of co-accused of the appellants namely Muhammad Ashraf, Muzaffar Abbas and Chiragh and the benefit of these discrepancies has already been extended to them in the shape of their acquittal. So far as the appellants are concerned, the medical evidence regarding date and time of occurrence, seat of injuries on the persons of deceased and injured and the weapons used in the commission of instant occurrence has tallied with the ocular account. After taking into consideration the whole prosecution evidence, we have come to the conclusion that the medical evidence has rendered sufficient support to the prosecution case against the appellants.
11. As far as the motive is concerned, it is mentioned in FIR (Ex.CW5/A) as well as the private complaint that the occurrence took place due to dispute in respect of reaping gram crop. We have observed that the defence has not denied the above fact during cross-examination on the eye-witnesses and the appellants also admitted in their statements under section 342, Cr.P.C. about the said dispute. It is also an admitted fact that there was dispute of land between the parties and the occurrence took place at the time of harvesting gram crop. However, the appellants have taken the stance that complainant party was the aggressor side as they attacked upon the appellants. Learned counsel for the appellants, while referring to the statement of Dr. Muhammad Akram (CW-1) has stated that the prosecution has suppressed the injuries of Akhtar Abbas appellant. In this regard, although it is established on the surface of record that Akhtar Abbas appellant was medically examined by CW-1, yet keeping in view the nature of injuries on the persons of Muhammad Bakhsh deceased, Qaiser Abbas injured (PW-7) and Mst. Noor Mai injured (given up) we are of the considered view that appellants' side was the aggressor party in this occurrence. Moreover, the appellants never tried to get recorded cross-version nor they opted to file private complaint against the complainant side, if they were aggressors in this case. As the motive part of the prosecution is proved, the same has rendered sufficient corroboration to the case in hand.
12. Now coming to the last piece of prosecution evidence against the appellants i.e. recovery of weapons of offence, we have observed that Safdar Abbas and Akhtar Abbas appellants were arrested by Hameed Ullah S.I. (CW-8) on 02.05.2008 and on 08.05.2008, they led the investigating officer and the PWs to the recovery of sotas (P1 and P2) vide memos (Ex.PH and Ex.PJ) respectively. The above recoveries are duly proved through the statements of Ghulam Sarwar complainant (PW-5) and Hameed Ullah S.I./I.O. (CW-8).
13. During arguments, learned counsel for the appellants argued that Muhammad Ashraf, Chiragh, Muzaffar and Iftikhar co-accused have been acquitted on the basis of same evidence which has been relied upon by learned trial court while convicting and sentencing the appellants and the petition for special leave to appeal against their acquittal has also been dismissed by this Court. We have observed that the learned trial court while pronouncing acquittal of Muhammad Ashraf, Chiragh, Muzaffar and Iftikhar co-accused has given separate reasons on the basis of which it came to the conclusion that their involvement in the instant case was doubtful in nature. Co-accused Muhammad Ashraf and Muzaffar Abbas co-accused are real brothers of the appellants and Chiragh co-accused is their father and possibility cannot be ruled out of consideration that they had been involved in this case by spreading the net wide so that no male member could left behind from the family of appellants to pursue their cases. Even otherwise, the roles assigned to Muhammad Ashraf, Muzaffar Abbas and Chiragh co-accused is not supported by medical evidence. So far as Iftikhar co-accused is concerned, he was merely the accused of conspiracy, which could not be proved by the prosecution through any reliable evidence. On the other hand, the eye-witness account to the extent of appellants is not only supported by the medical evidence, but the same also got corroboration from motive and recovery of weapons of offence on their pointing out. The Hon'ble Supreme Court of Pakistan in its various judgments has already held that the doctrine of "falsus in uno falsus in omnibus" (false in one thing, false in all), is not applicable in prevalent system of criminal administration of justice and more so there is no rule having universally applicable that where some accused were not found guilty, the other accused would ipso facto stand acquitted and it is the primary duty of the Court to sift grain from the chaff. In this regard, reliance can be placed on the case of "Samano v. State" (1973 SCMR 162). Similarly there is no cavil to the proposition that the grain has to be sifted from the chaff in each case, in the light of its own peculiar circumstances. In this regard, guidance is sought from the case titled "Riaz Hussain v. The State" (2001 SCMR 177). We would also like to refer to the case of "Ghulam Husain Soomro v. The State" (PLD 2007 SC 71), wherein Hon'ble Supreme Court of Pakistan was pleased to hold as under:-
We may not be misunderstood to mean that an innocent person wrongly roped by prosecution or falsely involved by an unscrupulous investigating officer should be unreasonably dealt with or made scape goat but the Courts must maintain balance while arriving at the truth or falsehood of the matter by sifting the grain from the chaff. This may be treated as a rule of caution and circumspection.
14. The above discussion leads us to the conclusion that there is sufficient incriminating material in the shape of statements of PW-5 Ghulam Sarwar complainant, PW-6 Muhammad Imran eye-witness and PW-7 Qaiser Abbas injured, duly supported by medical evidence of PW-1 Dr. Abdul Aziz Khalid, PW-2 lady Dr. Zubaida Akhtar and CW-1 Dr. Muhammad Akram. The prosecution case to the extent of the appellants is corroborated by motive as well as the recovery of weapons of offence on their pointing out to bring their guilt to the hilt, therefore, we have sufficient reasons to hold that the prosecution has proved its case against the appellants beyond the shadow of any doubt and as such the judgment recorded by the learned trial court to the extent of their conviction on the charge of committing murder of Muhammad Bakhsh deceased does not call for any interference by this Court. We have, however, observed that the learned trial court has omitted to convict and sentence the appellants for causing injuries on the person of Qaiser Abbas injured (PW-7) which were declared by the doctor (CW-l) as 337-L(2), P.P.C. At the same time, we have also observed that Muhammad Bakhsh deceased lost his life as a cumulative effect of the injuries sustained by him at the hands of appellants, which can be considered as a mitigating circumstance in their favour. It is settled law that the accused are entitled for the benefit of every extenuating circumstance while deciding question of their 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 awarding 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)."
In case of "Haji Muhammad Sadiq v. Liaquat Ali and others" (2014 SCMR 1034) the Hon'ble Supreme Court of Pakistan has held as under:-
"A single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment. No clear guideline, in this regard can be laid down because facts and circumstances of one case differ from the other, however, it becomes the essential obligation of the Judge in awarding one or the other sentence to apply his judicial mind with a deep thought to the facts of a particular case. If the Judge/Judges entertain some doubt, albeit not sufficient for acquittal, judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows. So it is better to respect the human life, as far as possible, rather to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed.
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In any case, if a single doubt or ground is available, creating reasonable doubt in the mind of Court/Judge to award death penalty or life imprisonment, it would be sufficient circumstances to adopt alternative course by awarding life imprisonment instead of death sentence."
So considering the above fact as mitigating circumstance in favour of the appellants, we feel that the capital punishment of death will not serve the interests of justice in this case. The above narrated peculiar features of the case have convinced us that life imprisonment, which is also a legal sentence, would be absolutely in apt with the circumstances of this case. Thus, we convert the sentence of death awarded by the learned trial court to Safdar Abbas and Akhtar Abbas appellants into life imprisonment under section 302(b)/34, P.P.C. as Ta'zir. They are also directed to pay compensation amounting to Rs.150,000/- each to the legal heirs of Muhammad Bakhsh deceased under section 544-A, Cr.P.C. which shall be recoverable as arrears of land revenue and in default thereof, they shall further undergo simple imprisonment for six months each. As the injuries caused by the appellants to Qaiser Abbas injured (PW-7) have been declared by the doctor (CW-1) as 337-L(2), P.P.C., so they are convicted under section 337-L(2)/34, P.P.C. and are sentenced to undergo rigorous imprisonment for two years with direction to pay Rs.5000/- each as Daman to the injured. All the sentences shall run concurrently and the benefit of section 382-B, Cr.P.C. is also extended in favour of the appellants.
15. With the above modification, Criminal Appeal No.70 of 2012 is dismissed. Murder Reference No.101 of 2012 is answered in negative and the sentence of death is not confirmed.
WA/S-66/L Order accordingly.