ZAHID MEHMOOD Versus State
KHALID MAHMOOD MALIK, J. ---By this single judgment, we would like to decide Murder Reference No.54/ 2012 (The State v. Zahid Mehmood), Crl. Appeal No.321/2012 (Zahid Mehmood v. The State), Crl. Appeal No. 334/2012 (Rafaqat Mehmood v. The State and another), Crl. Appeal No.299/2012 (Zaid Bin Zafar v. The State and another) and Crl. Appeal No.347/2012 (Yasir Abbas v. The State and others) as all have emanated out of same judgment dated 12.06.2012, delivered by learned Addl. Sessions Judge, Chakwal, whereby appellants Zahid Mehmood, Rafaqat Mehmood and Zaid Bin Zafar were convicted in case/FIR No.191 dated 06.05.2011, offence under sections 302/337-A(i)/337-L(2)/34, P.P.C., registered at Police Station Dhuman, District Chakwal and sentenced them as under:-
Zahid Mehmood, accused/appellant was convicted under Section 302(b), P.P.C. and sentenced to death penalty as Ta'zir along with compensation \of Rs.2,00,000/- payable to legal heirs of Basit Raza deceased and in default whereof, he shall further undergo S.I. for six months.
Rafaqat Mehmood, accused/appellant was convicted under Section 337-L(2), P.P.C. and sentenced to undergo R.I for two years, with direction to pay "Daman" Rs.50,000/- to Yasir Abbas, injured/ complainant and till payment of "Daman", convict shall be kept in jail. Benefit under section 382-B, Cr.P.C. is extended to convict. The convict is acquitted to the extent of other charges on the basis of doubt.
Zaid Bin Zafar, accused/appellant was convicted under Section 337-A(i), P.P.C. and sentenced to undergo R.I. for two years. However, convict is extended benefit under section 382-B, Cr.P.C. while he is acquitted to the extent of other charges on the basis of doubt.
2. Murder Reference No.54/2012 has been sent by the learned trial Court seeking confirmation or otherwise of death sentence awarded to Zahid Mehmood, appellants.
3. Crl. Appeal No.347 of 2012 has been filed by complainant Yasir Abbas against judgment dated 12.06.2012 with prayer that accused be convicted against each and every charges levelled against accused persons.
4. The facts, of the case as narrated by Yasir Abbas, complainant (PW-6) in his statement before the trial court and same statement is reproduced for narration of prosecution case:-
"On 06.05.2011, at 11.30 a.m., I along with Basit Raza deceased were present at New Shahid Oil Store, at Jhelum Road, Chakwal. When we reached at the above place, accused namely, Rafaqat Tatral armed with an iron hunter, Zaid Sarkal armed with .30 bore pistol and Zahid Panjain armed with .30 bore pistol (accused present in the court); all the accused threatened us that they would not spare both of us today. In the meanwhile, Zahid Panjain accused made a fire shot hitting Basit Raza on left side of his chest who fell down. Zahid Sarkal accused gave me a butt blow with his pistol hitting me on my head. Rafaqat accused gave me three hunter blows on left calf, on left shoulder and on my back, as a result whereof I also fell down. In that condition, Rafaqat accused dealt me a number of hunter blows hitting different parts of my body. On my hue and cry, Samar Nawaz, Abbas Naqvi and Malik Abbas while witnessing the occurrence were attracted to us whereupon accused fled away from the scene.
Motive for the occurrence is that we were activists in MSF, a students organization whereas the- accused were opposed to us being activists of PSF. On the day of occurrence, at 10.30 a.m., myself and Basit Raza deceased went to the NADRA Office to visit a friend where all the three accused confronted us and threatened us to give up MSF politics, otherwise there would be dire consequences for us. There took place an altercation between us. However, passerby intervened and separated us whereupon accused left that place and we returned back to our office. We remained in our office.
Eye-witnesses named above took us to hospital. Upon arrival of the I.O. in the hospital, I, made statement. Exh:PS, which was read over and explained to me and I signed the same in token of its correctness."
5. After observing legal formalities, trial commenced, charge was framed against appellants, to which they pleaded not guilty and claimed trial. The prosecution in order to prove guilt of accused persons examined as many as fifteen witnesses. Muhammad Munir, Draftsman (PW-1) prepared site plan and handed over to the Investigating Officer. Naveed Imran Constable No.505 (PW-2) got medically examined Basit Raza, injured from District Head Quarters Hospital, Chakwal, who later on died in the Hospital. He escorted dead body and after post mortem examination of Basit Raza, received last worn clothes (P-1 to P-4) along with copy of post mortem report and other relevant papers, which he handed over to I.O., who took the same into possession vide recovery memo Ex:PB. Aulia Khan, Constable No.79 (PW-3) executed non-bailable warrants of arrest and proclamation under section 87, Cr.P.C. of Zahid Mehmood and Zaid Bin Zafar, accused. Dr. Shakil Ahmad M.O. (PW-4) on 06.05.2011 medically examined Basit Raza and observed following injuries on his body:--
1. A firearm wound 1 x .7 oval in shape, margins inverted. Burning and blackening around wound margins present. It is present on left side of chest in 8th inter costel space in left sided mid clavicular line, 14 cm from left nipple. It was an entry wound, corresponding mark of shirt and Bunian present, marked and signed.
2. A lacerated wound oval shaped, 1 x 1.5 c.m. margins everted, fresh blood oozing from wound It was present on upper part of right gluteal region in parallel line to 4th lumber vertebrae. It was an exit wound of injury. No.1. Corresponding mark on shirt and Bunian present, marked and signed.
According to the opinion of Dr. (PW-4), nature of injuries was dangerous. Probable duration of injury was fresh. Kind of weapon used was firearm. On the same day, he also examined Yasir Abbas, injured/complainant and found following injuries:-
1. A laceration 1 x .4 cm present on occipito parietal region of left side muscle deep.
2. A swelling of 4 x 17 cm on left leg, middle area, on its middle 1/3rd laterally.
3. 2 reddish slants 3 x 4 cm on back left side. The patient was advised x-ray of skull Advocate for petitioner-lateral and x-ray of left leg, Advocate for petitioner-lateral.
Probable duration of injury was fresh. Kind of weapon used was blunt.
In opinion of doctor, injury No.1 was declared as Shujjah-e-Khafifah falling under section 337-A(i), P.P.C., Injuries Nos.2 and 3 declared as under section 337-L(2), P.P.C.
He also conducted post mortem examination on dead body of Basit Raza, deceased and observed following injuries:-
1. A firearm wound 1 x .7 oval in shape, margins inverted, mild burning and blackening on wound margins noted. Corresponding mark on shirt and Bunian present, marked. It was present on left side chest in 8th inter costel space, 14 cm from left nipple in mid clavicular line. It was an entry wound.
2. A lacerated wound oval shaped, 1 x 1.5 cm, margins everted, clotted and fresh blood oozing present. It is present on right superior part of gluteal region, at the level of 4th lumber vertebrae, 12 cm to the right. It was an exit of injury No.1. Corresponding mark of injury present on Shalwar, Bunian and shirt, all marked and signed.
OPINION
Death was caused by injury No.1 that was of firearm injury, which caused damage to left lung, pericardium, stomach, left lobe of liver, right kidney with pelvic vessels mainly these vital organs damaged, leading to severe haemorrhage intra thorac and abdominal cavity and leads to death in its unnatural course. Both injuries i.e. Injuries Nos.1 and 2 were ante-mortem in nature and caused by firearm weapon.
Probable time that elapsed between injury and death was about 40 to 60 minutes while that between death and post mortem was about one hour.
Malik Sibtul Hasan (PW-5) is witness of recovery of blood stained earth; crime empty 30 bore pistol, iron hunter (P-5), pistols 30 bore (P-6 and P-9), 5 live bullets P-7/1-5 and 4 live bullets P-10/1-4. Yasir Abbas (PW-6) is complainant and injured whose statement has already been given in earlier part of the judgment. Samar Nawaz (PW-7) furnished ocular account. Mujahid Iqbal 654/HC/Moharrir (PW-8) drafted formal FIR Ex:PS/1. He kept sealed parcels of blood stained earth and crime empty in safe custody and handed over to Khalil Haider 104/C for onward transmission to the offices of Chemical Examiner and Forensic Science Laboratory, Lahore, intact. Nadeem Qamar, Constable No.140 (PW-9) deposited sealed parcel of a pistol .30 bore along with 5 live bullets for onward transmission to the office of Forensic Science Laboratory, Lahore, intact. Ghulam Abbas, Moharrir/HC No.374 (PW-10) kept one sealed parcel of 30 bore pistol along with 10 live bullets in malkhana and thereafter Banded over to Nadeem Qamar, 140/C for onward transmission to the office of Forensic Science Laboratory, Lahore intact. Parvez Akhtar S.I (PW-11), Kazim Hussain S.I (PW-12), Ansar Hussain Shah (PW-14) and Tariq Mahmood S.I (PW-15) were Investigating Officers. Khalil Haider, Constable No.104 (PW-13) deposited sealed parcels of blood stained earth and empty of 30 bore pistol to the offices of Chemical Examiner and Forensic Science Laboratory, Lahore intact. Learned Deputy District Public Prosecutor after tendering reports of Chemical Examiner, Serologist, Forensic Science Laboratory (Ex:PV to Ex:PX), certified copy of judgment dated 29.7.2011 and copy of FIR (Mark-A and Mark-B) closed prosecution evidence. Thereafter, accused/ appellants were examined under section 342, Cr.P.C. and the entire evidence produced by the prosecution was put to them in shape of questions, which they termed as incorrect. In reply to a question that why this case was registered against them and why PWs have deposed against them, accused/appellants replied as under:-
Rafaqat Mahmood, accused/appellants
"I belong to a very poor family. My father is a labourer and with his meager resources, I had been studying at Chakwal in a private educational institution, having no affiliation with students organization nor I ever participated in any such activity. I am law abiding citizen. I am resident of village Tatral and my daily routine is to attend my classes in the above said private college and return back later in the after noon. Complainant of this case who is very ill reputed person, having nefarious activities. Neither the complainant nor the deceased whom I never knew were my class fellows or bona fide students of any other academic institution. Similarly, I have nothing common with my co-accused whom I met for the first time after my having been arrayed as an accused. The complainant somehow got my name included in the FIR. I had no reason whatsoever to launch an assault on the complainant or the deceased. The above position was accepted by the then S.H.O. of Police Station City, Chakwal who after initially keeping me under illegal confinement subsequently let off me. I voluntarily surrendered before the police after coming to know about my nomination in the false prosecution case. The occurrence was not witnessed by so called eye-witnesses but on account of their family relationship were inducted in the case."
Zaid Bin Zafar, accused/appellants
"I hail from a humble background, my father is serving as a driver in OGDC and with his meager resources, I had been studying at Chakwal in a private educational institution, affiliated with Regional Secondary Board. In this backdrop, I have no affiliation with any students organization nor I ever participated in any such activity. I am resident of village Sarkal which is at a distance of about 20 kilometers from Chakwal city and my daily routine is to attend my college and return back later in the after noon. Complainant of this case who is ill reputed for his nefarious activities tried to take unnecessary liberties with me as he used to roam around in front of my college whom I snubbed and he became inimical towards me for that. Neither the complainant nor the deceased whom I never knew were my class fellows or bona fide students of any other academic institution. Similarly, I have nothing common with my co-accused whom I met for the first time after my having been arrayed as an accused. The complainant somehow got my name included in the FIR. I had no rhyme or reason what to speak of any motive against the deceased. The above position was accepted by the then S.HO of Police Station City, Chakwal who after initially keeping me under illegal confinement subsequently let off me. I migrated through proper procedure to Karach so as to pursue my studies in peace when on my back, the proceedings for my so-called absconcion were taken up and upon receipt of information, I voluntarily surrendered before the Court. The occurrence was not witnessed by so called eye-witnesses but on account of their family relationship were inducted in the case."
Zahid Mehmood, accused/appellants
"I am innocent. The complainant of this case lodged a false fabricated FIR against me and suppressed/withheld the true facts of the occurrence in connivance with the local police, as no independent witnesses from the public supported the prosecution story. In fact, a brawl took place between group of Basit Raza deceased and other students of the college a few days prior to the occurrence. Same opposite group on the fateful day confronted Bash' Raza's group and a scuffle took place between the two groups and during the grappling/scuffling, some stray bullet hit Bash Raza deceased. I have been made a escape goat by the complainant in connivance with the police and also concealing the actual facts and concocting a false and fabricated story. I had no rhyme or reason to involve myself with any affair of the deceased or the complainant nor had any motive whatsoever to commit any occurrence as alleged. All the PWs deposed against me falsely at the behest of the complainant who are related inter-se and interested witnesses. They had no reason or business to be present at the alleged place of occurrence and they were inducted with deliberations and consultations."
The appellants did not opt to produce defence evidence and to make their statements under section 340(2), Cr.P.C.
6. It has been argued by learned counsel for appellants that prosecution has failed to establish the guilt of appellants beyond any shadow of doubt; that there are material contradictions in the statements of Yasir Abbas (PW-6) and Samar Nawaz (PW-7), eye-witnesses, which suggest it that the occurrence has not taken place in the mode and manner as alleged in the FIR; that the material and important eye-witnesses namely Malik Abbas and Syed Abbas Naqvi as described in the FIR have not been produced which effects adversely on the prosecution case; that number of FIR is not figured in inquest report; that medical evidence is inconsistent with the ocular account; that supplementary statement of complainant pertaining to motive has no evidentiary status/legal sanctity; that fake recovery of pistols and hunter have been planted against appellants; that it is well settled principle of law that benefit of doubt must be extended in favour of appellants, therefore, appellants deserves to be acquitted.
7. Conversely, learned Deputy District Public Prosecutor assisted by learned counsel for complainant has maintained that appellants are nominated in promptly lodged FIR and they had committed murder of Basit Raza and injured Yasir Abbas in furtherance of their common intention; that medical evidence is in league with prosecution case; that recovery of weapons i.e. pistol 30 bore and hunter have been recovered on pointation of appellants, therefore, case is strongly established due to which learned trial court has rightly awarded the death sentence to appellants Zahid Mehmood and appeals deserve dismissal and accused persons be awarded maximum punishment.
8. We have heard the learned counsel for appellants, Deputy Prosecutor General for state and learned counsel for complainant at length and have gone through the record with their assistance.
9. In this case, motive as described in FIR was a previous scuffle between the parties, in consequence, accused persons in furtherance of their common intention had committed murder of Basit Raza and injured Yasir Abbas, complainant. To prove motive, prosecution has examined Yasir Abbas, complainant (PW-6) who deposed that "motive for the occurrence is that they were activists in MSF, a students' organization whereas the accused were opposed to them being activists of PSF. On the day of occurrence, at 10.30 a.m., he and Basit Raza deceased went to the NADRA Office to visit a friend where all the three accused confronted them and threatened them to give up MSF politics, otherwise there would be dire consequences for them. There took place an altercation between them. However, passerby intervened and separated them whereupon accused left that place and they returned back to their office." The alleged motive has been introduced in supplementary statement of complainant. The statements of complainant (PW-6) and Parvez Akhtar S.I/Investigating Officer (PW-11) with regard to supplementary statement are at variance. In cross-examination, Yasir Abbas, complainant (PW-6) stated that:--
"I made my supplementary statement on the asking of the I.O. who had recorded my earlier statement Exh. PS. Again said, I.O. had asked me for the reasons of the incident and this is how, I made my second statement."
Parvez Akhtar S.I (PW-11) in cross-examination deposed that:-
"Without having been asked by me, Yasir Abbas PW on his own approached me again for recording of his supplementary statement."
As far the value of supplementary statement of complainant is concerned, it has been held by apex court that any statement or further statement of the first informant recorded during investigation by police would neither be equated with FIR nor read as part of it. The subsequent supplementary statement is to be considered as statement as recorded under section 161, Cr.P.C, which is not signed or thumb marked. In this regard, reliance is placed upon case titled "Falaksher v. The State" (1995 SCMR 1350) and "Akhtar Ali and others v. The State" (2008 SCMR 6). The other eye-witness Samar Nawaz (PW-7) in cross-examination stated that he is not the witness of motive part of occurrence. In these circumstances, we are of the view that prosecution has failed to establish motive as alleged in this case. It has been held by apex Court in case titled "Amin Ali and another v. The State" (2011 SCMR 323) that:- "when the main and eye-witnesses of the case disbelieved on the question of motive in such situation their evidence is required to be carefully examined.
Reliance is also placed upon case titled "Noor Muhammad v. State" (2010 SCMR 97).
10. The unfortunate incident took place at 11.30 a.m. on 06.05.2011 while matter was reported to police at 1.10 p.m. on same day. The place of occurrence is at a distance of three "Farlong" from police station. It was a broad daylight occurrence, in which two persons Yasir Abbas and Basit Raza were injured and they were shifted to D.H.Q Hospital, Chakwal for treatment and medical examination. Basit Raza, injured later-on succumbed to injuries. In these circumstances, FIR was lodged without any unnecessary delay as immediate priority of injured PWs was to save their lives through medical treatment. The names of appellants/accused with specific role coupled with the names of witnesses and manner of occurrence have been explained in FIR. The defence has not been able to show that FIR was not prepared at the time and place as it purports.
11. The ocular account has been furnished by Yasir Abbas, complainant (PW-6) and Samar Nawaz (PW-7). The examination-in-chief of Yasir Abbas, complainant (PW-6) as stated before the learned trial court has already been described in the earlier part of 4 the judgment. Samar Nawaz (PW-7) deposed on the same line as depicted by complainant (PW-6). Both the PWs categorically stated that Zahid Panjain accused made a fire shot hitting Basit Raza on left side of his chest who fell down. Zahid Sarkal accused gave a butt blow with his pistol which hit on the head of Yasir Abbas. Rafaqat accused gave three hunter blows on left calf, left shoulder and back of Yasir Abbas, who fell down. They were cross-examined at length but nothing could be elicited from their statements which could detract from the efficacy of their affirmative statements. The contradictions/ discrepancies referred by learned counsel for appellants are not so material and to fatal the prosecution case particularly when the alleged occurrence has taken place on 06.05.2011, while examination-in-chief upon them was recorded on 24.02.2012 and cross-examination on 22.03.2012 and 06.04.2012. The presence of Yasir Abbas, complainant/injured (PW-6) and Samar Nawaz (PW-7) at the relevant time of alleged occurrence which accrued in daylight was not unnatural. Nothing is brought on the record to show that the eye-witnesses were inimical or has any malice against the accused persons. The defence has also not specifically denied time, place of occurrence and unnatural death of Basit Raza, deceased with their respective versions as given in their statements under section 342, Cr.P.C. In support of their defence, appellants did not opt to appear under Section 340(2) of Cr.P.C. and also did not produce any defence evidence. Mere suggestions from the defence side put to the PWs during cross-examination and denied by the PWs have no evidentiary value unless corroborated by independent evidence, which was not produced by the convicts/ appellants.
12. Learned counsel for appellant Zahid Mehmood vehemently argued that there was conflict in medical and ocular account as such medical evidence has to be preferred over the ocular account. According to the prosecution case, Zahid Mehmood, accused/appellant made fire which hit on the chest of Basit Raza, deceased while in cross-examination Dr. Shakil Ahmad M.O. (PW-4) stated that:-
"It is correct that injury No.1 was present on upper part of left side of chest i.e. above the heart level. Injury No.2 which is exit of injury No.1 was present on upper right gluteal region, which is lower part of back It is correct that direction of injury No.1 is directed up to downwards, which means that the assailant was at higher level than that of the deceased."
No such question was put to the eye-witnesses. It is now well settled by the apex court that each case has to be decided in the light of its own facts and circumstances. In the present case, when accused party has caused injuries on the body of complainant and Basit Raza, deceased, naturally, injured PWs tried to move themselves to save their lives. In these circumstances, variations highlighted by learned counsel for appellant has no substance particularly, when the ocular account furnished by eye-witnesses is trust worthy and reliable. While dealing with the proposition, their lordships have been pleased to hold in case titled "Amir Khan v. The State and another" (2000 SCMR 1885) that:-
"It has time and again been held by the superior Court that if a bald statement of a medical expert is opposed to the proved and admitted confidence inspiring and reliable account of the eye-witnesses or other material and trustworthy evidence on record, then the latter are to be preferred against the former."
Guidance may also be sought from case titled "Sarfraz alias SAPPI and 2 others v. The State"(2000 SCMR 1758) wherein Horeble Apex Court has been pleased to observe as under:--
"Where there is any variation between ocular and medical evidence, the latter does not overweigh the former type of evidence if otherwise the ocular evidence is coherent and trustworthy."
Reliance is also placed upon case titled "Muhammad Nawaz and others v. The State" (1994 SCMR 1614), "Muhammad Khalid Hussain v. The State" (1995 SCMR 1160) and "Wahid v. The State" (PLD 2002 SC 62). The injuries attributed to accused/ appellants Rafaqat Mehmood and Zaid Bin Zafar on body of Yasir Abbas, complainant have been proved through his statement as PW-6 and medical evidence. The lapses on part of Investigating Agency as pointed out by learned counsel for appellants have no substance as procedural defects or irregularities in the course of investigation shall not damage the case of prosecution keeping in view the other evidence produced by the prosecution.
13. Non-examining of remaining two eye-witnesses by prosecution had neither adversely affect its case nor evidentiary value of the examined eye-witnesses. It was prerogative of prosecution to examine their witnesses, who were considered necessary for it beside defence was free to summon and examine any witness in defence who were mentioned in FIR, if defence considered to helpful or necessary for its case. Reliance is placed upon case titled "Haq Nawaz and others v. State and others" (PLJ 2000 SC 771), "Muhammad Akhtar Ali v. The State" (2000 SCMR 727) and "Mazhar Ali v. The State" (2005 SCMR 523).
14. It was prosecution Case that in investigation, accused/appellants Rafaqat Mehmood and Zahid Mehmood made disclosure and got recovered .30 bore pistols (P-5 and P-6). In order to prove recovery, prosecution has examined Malik Sibt-ul-Hassan (PW-5), Kazim Hussain S.I. (PW-12) and Tariq Mehmood S.I (PW-15). It is borne out from evidence that when Rafaqat Mehmood accused was on physical remand, Khalid, uncle of Rafaqat accused brought "Hunter" (P-4) in the police station and accused Rafaqat Mehmood produced the same before Investigating Officer, which was taken into possession vide recovery memo Ex:PP. Further, on pointation of appellants Zahid Mahmood and Zaid Bin Zafar, pistols .30 bore (P-5 and P-6) were recovered from their houses, which were situated in populated area. The Investigating Officer did not summon the neighbourers or respectable person of the vicinity like Lambardar, Councilor and Chowkidar etc. All these facts lead us to hold that the alleged recoveries are not free of doubt. In view of above circumstances, if evidence pertaining to motive and recovery of "Hunter (P-4), pistols (P-5 and P-6) is kept aside, even then we find that conviction can be maintained as prosecution has proved its, case against appellants through cogent evidence beyond any shadow of doubt.
15. After appraisal the evidence, we have noted that case of accused/appellants Rafaqat Mehmood and Zaid Bin Zafar is on different footing with his co-accused Zahid Mehmood. No injury on person of Basit Raza, deceased was attributed to accused/appellants Rafaqat Mehmood and Zaid Bin Zafar and only injuries attributed to them are on person of Yasir Abbas, injured (complainant) which fall under sections 337-L(2) and 337-A(i), P.P.C. and learned trial court has rightly convicted them under aforesaid sections. Recovery of "Hunter" (P-4) by Rafaqat Mehmood and pistol .30 bore(P-6) by Zaid Bin Zafar, accused/appellant is not above board. In these circumstances, we have modified the sentence of aforesaid appellants as they have already served/ undergone. However, the sentence of "Daman" awarded to Rafaqat Mehmood, appellant/ accused shall be maintained.
16. Coming to sentence awarded to accused/appellant Zahid Mehmood by learned trial court, we have given our anxious consideration as to whether sentences awarded to appellant Zahid Mehmood by learned trial Court are justified or not. We have found mitigating, circumstances in this case. Firstly, we have disbelieved motive part of the occurrence as it is not determinable in this case as to what the real cause of occurrence was and as to what actually happened immediately before the occurrence which resulted into the present unfortunate incident. Secondly, single fire-arm injury is attributed to accused/ appellant Zahid Mehmood. Thirdly, recoveries of weapons of offence i.e. pistols (P-5 and P-6) have been disbelieved. Therefore, in our view sentence awarded to appellant Zahid Mehmood is quite harsh. Reliance is placed on case titled "Ghulam Mohy-ud-Din v. The State" (2014 SCMR 1034), in which august Supreme Court of Pakistan has observed 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."
It is also held by the Hon'ble Supreme Court of Pakistan in case titled "Muhammad Tahir Khan v. The State" (1983 SCMR 1169) 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. This view is followed by apex court in case law titled "Ansar Ahmad Khan Barki v. The State and another"(1993 SCMR 1660).
17. In view of above referred mitigating circumstances, the death sentence imposed upon Zahid Mehmood, appellant by the learned trial Court is not confirmed and same is commuted to imprisonment for life. However, remaining sentence to the extent of compensation awarded to him by learned trial Court is maintained. All the sentences shall run concurrently. Benefit of section 382-B of Cr.P.C, is extended to accused/appellant Zahid Mehmood. With the above-said modification of the sentence of appellant Zahid Mehmood, Appeal No.321/2012 having no merits is hereby dismissed. Accordingly, the death sentence awarded to appellant Zahid Mehmood is not confirmed and Murder Reference No.54/2012 is answered in negative. The Criminal Appeals Nos.334 and 299 of 2012 are hereby dismissed with the modification of sentence of accused/appellants Rafaqat Mehmood and Zaid Bin Zafar, which they have already served out/undergone. However, the sentence of "Daman" imposed upon Rafaqat Mehmood, accused/appellant is maintained with direction to pay the same within one month otherwise to face legal consequences, while the Criminal Appeal No.347 of 2012 is dismissed.
JK/Z-21/L Order accordingly.