HUSSAIN ALI Versus State
SADIQ MAHMUD KHURRAM, J.--- The convict namely Hussain Ali son of Muhammad Wali was tried by the learned Additional Sessions Judge, Taxila in case FIR No. 467 of 2008 dated 19.07.2008 registered at Police Station Wah Cantt District Rawalpindi in respect of offences under sections 302 and 34, P.P.C. for committing the Qatl-i-Amd of Gulab Khan son of Mian Gul Rehman (deceased). The learned trial court vide judgment dated 16.03.2017, convicted Hussain Ali son of Muhammad Wali (convict) and sentenced him as infra:
Hussain Ali son of Muhammad Wali:
Death under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Gulab Khan son of Mian Gul Rehman (deceased) and directed to pav Rs.1,000,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.
2. Feeling aggrieved, Hussain Ali son of Muhammad Wali (convict) lodged Criminal Appeal No.249 of 2017 against his conviction and sentence. The learned trial court submitted Murder Reference No.31 of 2019 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Hussain Ali son of Muhammad Wali. We intend to dispose of the Criminal Appeal No. 249 of 2017 and Murder Reference No.31 of 2019 through this single judgment.
3. Precisely the facts necessary, as divulged in the statement of Mian Gul Bostan son of Muhammad Hassan (PW-8) are as under:-
"Stated that on 19.07.2008, I along with Mian Gul Rehman and Dolat Khan, were going to Sammoon alongside of the railway line. At 09:30/09:45 a.m., we reached near the dera of Ghulam Sarwar, at that time, Ghulab Khan was working as a mason there. Hussain Ali, the accused present in the court, and his brother Mohsin Ali, both armed with pistols came there. Hussain Ali asked that you be get ready, we teach you a lesson, for kidnapping our sister. Then Mohsin Ali made two fires, which hit on both eyes of Ghulab Khan. When Ghulab Khan fell down on the ground, then Hussain Ali made two fires which hit near the left ear and on the neck of Ghulab Khan. On our hue and cry, the accused fled away downwards of the dera. When we reached near Gulab Khan, he had died. Many people gathered there and then police also came there. Investigating Officer collected blood stained soil from the place of occurrence in my presence as well as in presence of Dolat Khan and sealed it in a phial and took it into his possession through recovery memo Ex.PK, which bears my signatures as Ex.PK /1. Besides me, Dolat Khan also signed this recovery memo. I.O. also collected two empty bullets from place of occurrence in our presence and put it into a cloth and sealed it and took it into his possession through recovery memo Ex.PL, which bears my signatures as Ex.PL.1. Besides me, Dolat Khan had also signed this recovery memo. Motive behind the occurrence, is that sister of the accused person had contracted runaway marriage with Gulab Khan."
4. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court wherein the appellant namely Hussain Ali son of Muhammad Wali was sent to face trial. The learned trial court framed the charge against the accused on 08.07.2013, to which the appellant pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case got statements of as many as thirteen witnesses recorded. The ocular account of the case was furnished by Mian Gul Bostan (PW-8) and Dolat Khan (PW-9). Khurram Shahzad, draftsman (PW-1) prepared the scaled site plan of the place of occurrence (Exh.PA). Inayat Ullah 7797/C (PW-2) stated that on 04.06.2013 Nasir Mehmood 2068/HC (PW-3) handed over to him a sealed parcel said to contain a pistol 30-bore for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Nasir Mehmood 2068/HC (PW-3) stated that on 27.05.2013 Gulzar Hussain, SI (PW-12), the Investigating Officer of the case, handed over to him a sealed parcel said to contain a pistol 30-bore which on 04.06.2013 he handed over to Inayat Ullah 7797/C (PW-2) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Yousaf 3531/HC (PW-4) stated that on 19.07.2008 Sikandar Hayat, SI (PW-13), the Investigating Officer of the case, handed over to him two sealed parcels said to contain a pistol and empties which on 03.08.2008 he handed over to Khalid Mehmood 3512/C for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. Muhammad Ilayas, SI (PW-6) investigated the case from 28.03.2009 till 02.04.2009 and got issued the proclamation (Exh.PG) of the appellant Hussain Ali and handed over the same to Muhammad Naeem, 5045/C (PW-7) for execution who on 02.04.2009 handed back the proclamation after executing the same. Muhammad Naeem 5045/C (PW-7) stated that on 25.03.2009 he was handed over non-bailable warrants of arrest (Exh.PH) of the appellant and on 28.03.2009 he was handed over the proclamation (Exh.PG) for execution by Muhammad Ilayas, SI (PW-6) and his reports on the said documents are Exh.PG/1 and Exh.PH/1. Jehanzeb Khan (PW-10) identified the dead body of the deceased. Asif Ali (PW-11) stated that on 27.05.2013, the appellant led to recovery of the pistol-30 bore (P-1) which was taken into possession by the Investigating Officer through recovery memo (Exh.PM) and further stated that Mian Gul Rehman, the complainant of the case, was murdered in 2013 and he could identify the signatures of his father on the oral statement (Exh.PN). Gulzar Hussain, SI (PW-12) investigated the case from 27.05.2013 till 06.06.2013, arrested the appellant in this case on 27.05.2013 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Sikandar Hayat, SI (PW-13) investigated the case from 19.07.2008 till 03.02.2009 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. Farid ud Din (PW-5) examined who, on 19.07.2008, was posted as Senior Medical Officer at THQ Hospital, Taxila and on the same day conducted the postmortem examination of the dead body of Gulab Khan son of Mian Gul Rehman (deceased). Dr. Farid ud Din (PW-5), on examining the dead body of Gulab Khan son of Mian Gul Rehman (deceased) observed as under:-
"1) EXTERNAL APPEARANCE.
A dead body of an adult man, lying on the postmortem table wearing light blue Shalwar Qameez and black Kherri. His mouth was closed, Rigor mortis was developed, postmortem staining present and following injuries were seen.
1. A gun shot lacerated wound at the medial margin of right eye measuring 1x1 cm, with inverted edges, blackening present wound going inward and posteriorly, eye ball damaged.
2. A lacerated wound measuring 1.5x1.5cm with everted edges at the lateral margin of left eye. Eye ball damaged.
3. A gun shot lacerated wound lxlcm with inverted edges, blackening present, which was at the left side of face 4cm in front of left ear, injury No.3 corelate to injury No.2.
4. A gun shot lacerated wound measuring 0.5cm x 0.75cm with inverted edges, blackening present going inward, downward and posteriorly, which was at the anterior aspect of middle of the neck.
5. A lacerated wound measuring 1.5x1.5cm with everted edges which was 2cm on left side of the vertebral column and 7cm from tip of left scapula, injury No.4, correlate to injury No.5.
6. A lacerated wound measuring 3cm x 2cm with everted edges at occipital region of skull which was 13cm from right ear. Brain matter was coming out of the injury. Injury No.1 corelate to injury No. 6. corresponding hole of injury No.4 was present on Qameez, which was signed by me. All injuries are antimortum in nature.
.
Opinion.
In my opinion the probable cause of death was hemorrhagic shock due to injuries Nos.1 to 6, which were due to firearm weapon and which damaged vital organs, brain, trachea and left lung and main blood vessels as described in dissection, which were sufficient to cause death in ordinary course of nature.
Probable time that elapsed a. Between injury and death = about within ten to fifteen minutes. b. Between death and postmortem = about within 8 to 10 hours."
7. On 25.01.2017, the learned ADPP, gave up witness namely Mian Gul Rehman (since dead), Khalid Mehmood 3512/C (since dead), Khalid Pervaiz, SI (since dead) and Irfan Ali as being unnecessary , tendered in evidence the report of Punjab Forensic Science Agency, Lahore regarding the examination of pistol and empties (Exh.PT) and the report of Chemical Examiner for Punjab, Lahore (Exh.PS) and closed the prosecution evidence.
8. After the closure of prosecution evidence, the learned trial court examined the appellant namely Hussain Ali son of Muhammad Wali under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Hussain Ali son of Muhammad Wali opted not to get himself examined under section 340(2), Cr.P.C. and did not adduce any evidence in his defence.
9. On the conclusion of the trial, the learned Additional Sessions Judge, Taxila convicted and sentenced the appellant as referred to above.
10. The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant, further contended that the story of the prosecution mentioned in the FIR, on the face of it, is highly improbable. Learned counsel for the appellant further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellant also submitted that the recovery was full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant also argued that the appellant had been involved in the occurrence due to enmity. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of a doubt.
11. On the other hand, learned Deputy Prosecutor General contended that the prosecution has proved its case beyond a shadow of a doubt by producing independent witnesses. The learned Deputy Prosecutor General further argued that the deceased died as a result of injuries suffered at the hands of the appellant. The learned Deputy Prosecutor General further contended that the medical evidence also corroborated the statements of Mian Gul Bostan (PW-8) and Dolat Khan (PW-9). The learned Deputy Prosecutor General further argued that the recovery of pistol 30-bore (P-1) from the appellant also corroborated the ocular account. The learned Deputy Prosecutor General contended that there was no occasion for the prosecution witnesses to substitute the real offender with the innocent in this case. Lastly, he prayed for the rejection of the appeal.
12. We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial.
13. The whole prosecution case revolves around the statements of Mian Gul Bostan (PW-8) and Dolat Khan (PW-9). These witnesses namely Mian Gul Bostan (PW-8) and Dolat Khan (PW-9) were related to each other and the deceased . Their relationship with the deceased is also on record. The deceased namely Gulab Khan son of Mian Gul Rehman was the paternal nephew of Mian Gul Bostan (PW-8) and son of Mian Gul Rehman (since dead), the complainant of the case. Dolat Khan (PW-9) was the maternal cousin of Mian Gul Rehman (since dead), the complainant of the case. To establish the story, the prosecution produced Mian Gul Bostan (PW-8) and Dolat Khan (PW-9) who both explained their presence at the place of occurrence, at the time of occurrence categorically. As mentioned above, Mian Gul Rehman (since dead), the complainant of the case, on whose narration oral statement (Exh.PN) was recorded, did not appear before the learned trial court as he was murdered in the year 2013 i.e. prior to the arrest of the appellant. Mian Gul Bostan (PW-8) and Dolat Khan (PW-9) explained that on 19.07.2008, they along with Mian Gul Rehman (since dead) were going to village New Sammoon when at about 09:30/09:45 a.m., they reached near the Dera of Ghulam Sarwar where Ghulab Khan son of Mian Gul Rehman (deceased) was working as a mason and in their presence and view the appellant and his brother namely Mohsin Ali (since declared a proclaimed offender) arrived there while armed with pistols and the appellant made two fires with his pistol which hit near the left ear and the neck of Ghulab Khan son of Mian Gul Rehman (deceased). During the cross-examination, both the witnesses namely Mian Gul Bostan (PW-8) and Dolat Khan (PW-9) remained consistent with regard to the sequence of their presence at the place of occurrence. Both the witnesses Mian Gul Bostan (PW-8) and Dolat Khan (PW-9) were questioned during cross-examination regarding the reason for them to accompany Mian Gul Rehman (since dead), the complainant of the case, to the place of occurrence and both remained consistent that as Mian Gul Rehman (since dead) had to purchase a buffalo ,therefore, they all three were going to the village New Summon for the said purpose. We have also perused the rough site plan (Exh.PQ) as prepared by Sikandar Hayat, SI (PW-13) and the scaled site plan of the place of occurrence (Exh.PA) as prepared by Khurram Shahzad, draftsman (PW-1) and find that the passage leading towards the village New Sammoon has also been identified in the said site plans on the eastern side of the place of occurrence. Furthermore the presence of the witnesses on the passage leading towards the village New Sammoon has also been mentioned in the said site plans (Exh.PA) and (Exh.PQ). It had also been mentioned by both the witnesses that the deceased was engaged in the construction of a wall at the place of occurrence at the time of occurrence. Mian Gul Bostan (PW-8) during cross-examination stated as under:-
"The height of the building, which was being constructed by the deceased was about 2/2.5 feet and stones were affixed below the DPC."
Similarly, Dolat Khan (PW-9) was also cross-examination in this respect and he too stated that the deceased was engaged in the construction of a wall at the place of occurrence at the time of occurrence. Furthermore, Sikandar Hayat, SI (PW-13) also stated that building material was lying at the place of occurrence at the time of his visit there. We have also perused the rough site plan (Exh.PQ) as prepared by Sikandar Hayat, SI (PW-13) and the scaled site plan of the place of occurrence (Exh.PA) as prepared by Khurram Shahzad, draftsman (PW-1) and find that the place where the deceased was working has been mentioned in the same. The height of the wall under construction was also inquired into during cross-examination. Mian Gul Bostan (PW-8), during cross-examination stated that the height of the building, which was being constructed by the deceased was about 2/2.5 feet. We have noted that in this scale site plan of the place of occurrence (Exh.PA) as prepared by Khurram Shahzad draftsman (PW-1), the height of the said wall has been shown as 2 feet 10 inches. This clearly establishes that both the witnesses, who were present on the passage leading towards the village New Sammoon, had no obstruction in the line of their sight and both the witnesses could have easily witnessed the happening of the occurrence. During the course of investigation, Sikandar Hayat, SI (PW-13), 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.PK). The report of the Chemical Examiner for the Punjab, Lahore (Exh.PS) establishes that the said blood stained earth collected from the place of occurrence was indeed stained with blood. This evidence also establishes the place of occurrence being the same as deposed by the witnesses. The place of occurrence was further established by the rough site plan (Exh.PQ) as prepared by Sikandar Hayat, SI (PW-13) and the scaled site plan of the place of occurrence (Exh.PA) as prepared by Khurram Shahzad, draftsman (PW-1). Mian Gul Bostan (PW-8) and Dolat Khan (PW-9) fairly succeeded in proving their presence at the spot and witnessing the occurrence. They were subjected to lengthy cross-examination but the defence had failed to make cracks in their deposition and veracity of their statements. Moreover, Mian Gul Bostan (PW-8) and Dolat Khan (PW-9) being close relatives of the deceased had no reason to falsely implicate the appellant in the commission of the offence substituting him, letting off the real culprits. There is no such material available on record which would indicate substitution of the appellant in the case with the real culprit. Substitution is a phenomenon of a rare occurrence 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 appellant has not been able to establish any animosity of the complainant or the police for his false involvement in the case. Mian Gul Bostan (PW-8) and Dolat Khan (PW-9), in a straightforward manner, held the appellant responsible for the murder of Gulab Khan son of Mian Gul Rehman (deceased). 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 relationship with the deceased, would not let go the real culprit or substitute an innocent person for him."
In view of the above discussion, Mian Gul Bostan (PW-8) and Dolat Khan (PW-9) by no stretch of imagination, can be declared as chance witnesses, as pressed time and again by the learned counsel appearing on behalf of the appellant, because they have rendered a plausible justification for their presence at the place of occurrence.
14. The occurrence in this case took place in the broad-day-light at about 9.30/9.45 a.m. which was reported by the complainant namely Mian Gul Rehman (since dead) at 11.55 a.m. and whose oral statement (Exh.P.N.) was recorded by Sikandar Hayat, SI (PW-13), the Investigating Officer. On the basis of the recorded oral statement (Exh.PN) of the complainant namely Mian Gul Rehman (since dead), the formal FIR (Exh.PO) was registered at 12.30 p.m. by Khalid Pervaiz SI (since dead), when the police station was at a distance of 2.5 miles from the place of occurrence. Thus, it is apparent that the FIR (Exh.PO) was got lodged within a short duration and the complainant not only named the appellant, but also mentioned each and every minor as well as material fact of the incident therein, which of course excludes the possibility of deliberation or consultation regarding false implication of the appellant in the instant case. The detail of the occurrence has been elaborately explained in the FIR. 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 FIR if they had not been with the deceased persons at the time of their death."
Furthermore, we have noted that as per column No.11 of the inquest report (Exh.PE), at the time of preparation of the same, the blood 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. According to column No.8 of the inquest report (Exh.PE), 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 of the deceased further proves the prosecution's version regarding the presence of the witnesses at the place at the time of occurrence.
15. As mentioned above, the occurrence in question had admittedly taken place in broad daylight and the same, therefore, could not have gone un-witnessed nor could have the culprit escaped unnoticed. As it was a broad daylight occurrence and because of previous acquaintance of the parties, question of misidentification does not arise. It is also an admitted fact that the sister of the appellant namely Hussain Ali had married the deceased. In the incident it would not have been difficult for the complainant party to identify the present appellant. Hence, according to the facts and circumstances, the misidentification of the appellant is not even a question in this case.
16. The medical evidence produced by the prosecution in the case proved that the deceased had received the fatal injuries with a firearm weapon on the vital part of his body and he succumbed to the said injuries. The medical evidence fully supports the ocular account. The probable time between death and postmortem as noted by the Medical Officer coincides with the ocular account. Dr. Farid ud Din (PW-5), who, on 19.07.2008, was posted as Senior Medical Officer at THQ Hospital, Taxila and on the same day conducted the postmortem examination of the dead body of Gulab Khan son of Mian Gul Rehman (deceased) observed as many as three entry wounds on the person of the deceased. According to the eye-witnesses the appellant namely Hussain Ali fired with his pistol twice hitting the deceased near his left ear and neck. The injuries attributed to the appellant namely Hussain Ali were observed by Dr. Farid ud Din (PW-5), who mentioned the same as injuries Nos.3 and 4 in his postmortem report (Exh.PB). Dr. Farid ud Din (PW-5) stated that he observed a lacerated wound 1x1cm with inverted edges, blackening present, which was at the left side of the face of the deceased, 4cm in front of left ear and another lacerated wound measuring 0.5cm x 0.75cm with inverted edges, blackening present going inward, downward and posteriorly, which was at the anterior aspect of middle of the neck of the deceased. Dr. Farid ud Din (PW-5) also traced the track of the projectile which had entered in the body through injury No.3 as well as the track of the projectile which entered the body through injury No.4 and detailed the said information in his postmortem report (Ex.PB) as well as in his statement before the learned trial court. Dr. Farid ud Din (PW-5) further stated that in his opinion the probable cause of death was hemorrhagic shock due to injuries Nos.1 to 6, which were due to firearm weapon and which damaged vital organs, brain, trachea and left lung and main blood vessels, which were sufficient to cause death in ordinary course of nature. The appellant has been saddled with the responsibility of causing the said fatal injuries (injuries Nos.3 and 4). In this manner the ocular account is fully corroborated by the medical evidence available on record. In view of the above discussion, it is ascertained that the intent of the appellant was to cause death and that he is guilty of Qatl-i-Amd.
17. Then there is also the matter of the unexplained disappearance of the appellant after the occurrence. Gulzar Hussain, SI, (PW-12) arrested the appellant in this case on 27.05.2013 when he had been arrested in another case FIR No.115 of 2013 registered at Police Station Wah Cantt., regarding the murder of Mian Gul Rehman (the complainant of the instant case). Muhammad Ilyas, SI (PW-6) investigated the case from 28.03.2009 till 02.04.2009 and got issued the proclamation (Exh.PG) of the appellant Hussain Ali and handed over the same to Muhammad Naeem, 5045/C (PW-7) for execution who on 02.04.2009 handed back the proclamation after executing the same. Muhammad Naeem 5045/C (PW-7) stated that on 25.03.2009 he was handed over non-bailable warrants of arrest (Exh.PG) of the appellant and on 28.03.2009 he was handed over the proclamation (Exh.PG) for execution by Muhammad Ilyas, SI (PW-6) and his reports on the said documents are Exh.PG/1 and Exh.PH/1. There is no explanation forthcoming of the sustained abscondence of the appellant. The occurrence in this case took place on 19.07.2008 whereas the appellant was arrested in this case on 27.05.2013, meaning thereby that he evaded the process of law for as many as nearly four years and ten months. Article 21 of the Qanun-e-Shahadat, 1984 provides that the fact that any person accused of a crime absconded after the same is a relevant fact to prove the fact in issue. Illustration (i) of Article 21 of the Qanun-e-Shahadat, 1984 reads as under:-
"(i) A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant."
This conduct of the appellant to evade the law after the occurrence is a further indicator pointing towards of his guilt when considered in conjunction with the ocular evidence in the case. The august Supreme Court of Pakistan in the case of "Mst. Roheeda v. Khan Bahadur and another" (1992 SCMR 1036) has held as under:-
"No doubt, abscondence by itself is not sufficient to convict an accused person but is a strong piece of corroborative evidence of the other direct an circumstantial evidence in the case. In the instant case the accused/respondent No.1, Jahanzeb accused (since murdered) and their brother Aurangzeb remained fugitive from justice for a very long time without any plausible an reasonable explanation. Their conduct after the occurrence was indicative of their guilt when considered in conjunction with the ocular and circumstantial evidence in the case."
The august Supreme Court of Pakistan in the case of "Ashiq Hussain v. The State" ( 2017 SCMR 188) has held as under:-
"During the investigation the appellant had made himself scarce and had, thus, been declared a Proclaimed Offender and such conduct on the appellant's part had provided further corroboration to the ocular account."
The august Supreme Court of Pakistan in the case of "Muhammad Latif alias Tifa v. The State" ( 2008 SCMR 1106) has held as under:-
"It is also an admitted fact that after the occurrence, the appellant remained at large for about 4-1/2 years and his abscondance was taken as an incriminating piece of evidence."
The august Supreme Court of Pakistan in the case of "Saif-ul-Islam v. The State" (2008 SCMR 1236) has held as under:-
"The occurrence took place on 4.7.2004 but accused/petitioner did not joint investigation rather he went abroad (Dubai). He was brought to Pakistan through Interpol Police and on 23-2-2005 he was arrested in this case. The petitioner was declared P.O. He has failed to explain as to why he remained absent and this incriminating circumstance too operates to his disadvantage."
18. Regarding the recovery of the pistol (P-1) from the appellant namely Hussain Ali, the same cannot be relied upon as the fact remains that Investigating Officer of the ease did not join any witness of the locality during the recovery of the said pistol (P-1) from the appellant which was in clear violation of section 103, Cr.P.C. and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and is hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of "Muhammad Ismail and others v. 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"
Moreover, the recovery of the pistol (P-1) from the appellant was admittedly made from under a bridge which place was accessible to public. Asif Ali (PW-11) admitted during cross-examination that a passage led to the place of recovery meaning thereby that the said place was being used by the people of the area. Hence, the prosecution failed to prove the exclusive possession of the appellant over the place of recovery of the pistol (P-1). Therefore, the recovery of the pistol (P-1) from the appellant does not further the case of prosecution in any manner. In view of the above mentioned facts, the alleged recovery of the pistol (P-1) is not proved and the same cannot be used as a circumstance against the appellant.
19. The motive of the occurrence, as mentioned by Mian Gul Rehman (since dead) in his oral statement (Exh.PN) was that some eight months prior to this occurrence the deceased namely Ghulab Khan had abducted the sister of the appellant and then married her. During the course of investigation of the case as well as the trial , the said sister of the appellant never joined the investigation of the case nor appeared before the learned trial court to prove the motive of the occurrence as alleged by the prosecution witnesses. Furthermore, Dolat Khan (PW-9) stated during cross-examination as under:-
"It is correct that Mst. Shabana is still residing in the house of Mian Gul Rehman happily."
This portion of cross-examination establishes that the sister of the appellant was residing at the house of Mian Gul Rehman (since dead) the complainant of the case and hence her statement should have been recorded during the investigation or she should have been produced as a witness before the learned trial court during trial. There is a haunting silence with regard to the particulars of motive alleged. The failure of the prosecution to produce Mst. Shabana has resulted in us concluding that the prosecution had failed to establish the motive of the occurrence by not producing the best evidence available in this respect. Consequently, 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 which had resulted into the death of Gulab Khan, deceased. Therefore, we have concluded that the prosecution failed to prove the motive of the occurrence.
20. We have disbelieved the evidence of prosecution qua the motive and recovery of the pistol (P-1) in this case. However, even if the evidence of motive and recovery of the pistol (P-1) is excluded from consideration, even then there is sufficient incriminating evidence available on the record against the appellant namely Hussain Ali son of Muhammad Wali to prove the case of prosecution against him. As discussed earlier, the prosecution case was fully proved through the evidence of eye-witnesses namely Mian Gul Bostan (PW8) and Dolat Khan (PW-9).The said eye-witnesses stood the test of lengthy cross-examination, but their evidence could not be shaken. Their evidence is quite natural, straightforward and confidence inspiring. The ocular account of occurrence as given by the abovementioned eye-witnesses is fully supported by the medical evidence furnished by Dr. Farid ud Din (PW-5), therefore, we hold that the prosecution has proved its case against the appellant Hussain Ali son of Muhammad Wali 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 Hussain Ali son of Muhammad Wali, firstly, the evidence of recovery of pistol (P-1) from the possession of the appellant namely Hussain Ali son of Muhammad Wali has been disbelieved by us for the reason mentioned in Para No.18 of this judgment, secondly the prosecution has alleged a specific motive in this case but has failed to prove the same. It is well recognized principle by now that the question of quantum of sentence requires utmost attention and thoughtfulness on the parts of the Courts. In this regard we respectfully refer the case of Mir Muhammad Walias 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 lift 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 Hussain Ali son of Muhammad Wali 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. Moreover, 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 which had resulted into the death of Gulab Khan, deceased, therefore, in our view the death sentence awarded to the appellant is quite harsh. 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."
A reference in this respect may be made to 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) and Qaddan and others v. The State (2017 SCMR 148).
22. In the light of above discussion, the conviction of the appellant namely Hussain Ali son of Muhammad Wali as awarded by the learned trial court through the above mentioned judgment is maintained but the sentence of death awarded to the appellant namely Hussain Ali son of Muhammad Wali 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 is maintained and upheld. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, is also extended to the appellant namely Hussain Ali son of Muhammad Wali. Consequently, with the above said modification in the sentence of the appellant namely Hussain Ali son of Muhammad Wali, Criminal Appeal No. 249 of 2017 is hereby dismissed.
23. Murder Reference is answered in Negative and the death sentence of Hussain Ali son of Muhammad Wali is Not Confirmed.
JK/H-4/L Appeal dismissed.