The State vs Muhammad Shafique Alias Pappu

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No.13 of 2016 (The State Vs. Muhammad Shafique alias Pupoo )

Criminal Appeal No. 83-J of 2016 (Muhammad Shafique alias Pupoo Vs. The State.)

Date of hearing: 03.06.2021.

Appellant by: Mr. Muhammad Sharif Bhatti, Advocate. State by: Mr. Najeeb Ullah Jatoi, Deputy Prosecutor General.

SADIQ MAHMUD KHURRAM, J. – Muhammad Shafique alias Pupoo son of Taj Muhammad (convict) was tried by the learned Sessions Judge, Bahawalnagar in case FIR No. 501 of 2015 dated 19.10.2015 registered at Police Station Faqir Wali, District Bahawalnagar in respect of offences under sections 302 and 324 PPC for committing the Qatl-i-Amd of Muhammad Younis son of Muhammad Din (deceased). The learned trial court vide judgment dated 15.02.2016, convicted Muhammad Shafique alias Pupoo son of Taj Muhammad (convict) and sentenced him as infra:

Muhammad Shafique alias Pupoo son of Taj Muhammad:-

i)Death under section 302(b) PPC as Tazir for committing Qatl-i-Amd of Muhammad Younis son of Muhammad Din (deceased) and directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead.

ii)Rigorous Imprisonment for seven years on two counts under section 324 PPC. for attempting to commit Qatl-i-

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Amd of Muhammad Shahzad Ali (PW-4) and Mst.

Rasheedan Bibi (PW-5) and directed to pay fine of Rs.20,000/- on each count and in default of payment of fine to further undergo simple imprisonment for three months on two counts .

iii)Rigorous Imprisonment for seven years under section 337 D PPC and directed to pay Arsh of Rs. 5,60,090/- to the injured Muhammad Shahzad Ali (PW-4) . Till the payment of above mentioned Arsh amount, the convict was directed to remain confined and his imprisonment was to be treated as simple imprisonment.

iv)Rigorous imprisonment for one year under section 337- F(iii) PPC and directed to pay Rs.20,000/- as Daman to the injured Mst. Rasheedan Bibi (PW-5) .

All the sentences awarded to the convict were ordered to run concurrently by the learned trial court .

The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, was extended to the convict by the learned trial court.

2.Feeling aggrieved, Muhammad Shafique alias Pupoo son of Taj Muhammad (convict) lodged Criminal appeal No.83-J of 2016 through jail assailing his conviction and sentence. The learned trial court submitted Murder Reference No.13 of 2016 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Shafique alias Pupoo son of Taj Muhammad. We intend to dispose of the Criminal Appeal No. 83-J of 2016 and Murder Reference No.13 of 2016 through this single judgment.

3.Precisely the necessary facts of the prosecution case, as narrated by Muhammad Shahzad Ali (PW-4), the complainant of the FIR, are as under:- “Stated that Mst. Safia Bibi my aunt (Phophy) was married with Mohammad Shafique accused present before the Court about 22/23 years ago. Out of wedlock three children were born. 4/5 days prior to 19.10.2015 my Phophy after quarreling with her husband came to our house. Thereafter matter was patched up and my aunt went to the house of her husband. On the same day when Mohammad Shafique

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took my aunt after reconciliation at evening time he again quarreled with her and my aunt came back to our house.

On 19.10.2015 at about 3.45 P.M. Mohammad Shafique accused while riding on Honda-125 CC came to our house. When accused present before the Court came to our house he was armed with pistol. Mohammad Shafique accused inquired from my father Mohammad Younas about my aunt that where is she, upon which my father replied that she had gone to the house of neighourer, upon which Mohammad Shafique threatened that now he would teach him a lesson to desert his wife. Mohammad Shafique accused made pistol shot upon the belly of my father and he fell down. Accused present before the Court again fired at my father which hit upon his neck. Third fire shot by Mohammad Shafique accused landed on left arm of my father. My grand mother Mst. Rashidan Bibi tried to intervene, upon which Mohammad Shafique accused made a fire upon Mst Rashidan Bibi which hit on her left thigh. When I tried to rescue my grandmother, Mohammad Shafique made pistol fire shot which hit on my back making exit from front side. The occurrence was witnessed by Waqas Ali son of Mohammad Younas, Mst. Humera Anjum d/o Khushi Mohammad, Mst. Shamim Akhtar wife of Shabbir Ahmad. We tried to apprehend the accused but he by making aerial firing he fled away. Then we were taken to RHC Faqirwali. Police came there and I got recorded my statement Exh.PG which was read over to me and I signed the same as token of its correctness. Police also recorded the statements of my father Mohammad Younas and grandmother Mst. Rashidan Bibi. Then I and my father were referred to B.VH. Bahawalpur where my father succumbed to his injuries on the same day i.e 19.10.2015.”

4.After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the appellant namely Muhammad Shafique alias Pupoo son of Taj Muhammad was sent to face trial. The learned trial court framed the charge against the accused on 01.12.2015, to which the accused pleaded not guilty and claimed trial.

5.The prosecution in order to prove its case, got statements of as many as eleven witnesses recorded. The ocular account of the case was furnished by Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5).

Muhammad Abdullah, 235/C (PW-1) stated that he escorted the injured to the hospital for their medical examination and also received the last worn clothes

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of the deceased from the Medical Officer after post mortem examination.

Muhammad Abdullah, 235/C (PW-1) further stated that on 26.10.2015 the appellant was arrested by Muhammad Ajmal, SI (PW-9) and at the time of his arrest the motorcycle under the use of the appellant was taken into possession through recovery memo (Exh.PA) and further stated that on 30.10.2015 the appellant led to the recovery of pistol which was taken into possession through recovery memo (Exh.PB). Saqib Murtaza, 112/HC (PW-7) stated that on 20.10.2015 Kashif Iqbal, ASI (PW-6) handed over to him received two sealed parcels said to contain blood stained earth and empties recovered from the place of occurrence and further stated that on 30.10.2015 Muhammad Ajmal, SI (PW-9) handed over to him a sealed parcel said to contain a pistol and on 05.11.2015 he handed over all the three parcels to Muhammad Ajmal, SI (PW-9) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore . Ali Nawaz, (PW-8) stated that Kashif Iqbal, ASI (PW-6) took into possession the blood stained earth and empties recovered from the place of occurrence .Ghulam Yaseen, Tracer (PW-10) prepared the scaled site plan of the place of occurrence. Sabir Munir, ASI (PW-11) recorded the formal F.I.R (Exh.PG/2). Kashif Iqbal, ASI (PW-6) investigated the case on 19.10.2015 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Muhammad Ajmal, SI (PW-9) investigated the case from 19.10.2015 till 13.12.2015, arrested the appellant in this case on 26.10.2015 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. Ahmad Raza (PW-2) examined, who on 19.10.2015 was posted as Medical Officer at the RHC Faqirwali and on the

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same day at about 4.50 p.m. medically examined Muhammad Younis (then injured later deceased) and observed as under:-

“INJURIES.

1.Lacerated wound 2x2 cm with everted edges on right side of neck. Muscle deep K.U.O. for X-ray.

2.Lacerated wound 1x1 cm with inverted edges on back of neck, muscle deed. Blackening present.

3.Lacerated wound 1x1 cm on left lower chest with inverted edges. Blackening present.

4.Lacerated wound 4x2 cm on left forearm with wound of entry on lateral to wound of exit on medial side. Muscle deep.”

On the same day Dr. Ahmad Raza (PW-2) medically examined Muhammad Shahzad (PW-4) and observed as under:-

“INJURIES.

1.Lacerated wound 2x1 cm on postero lateral part of left shoulder with inverted edges. Muscle deep. Blackening was present.

2.Lacerated wound 3x2 cm with everted edges on front of chest above epigatrium (sic). Muscle deep. Profuse fresh bleeding was from wound.

Patient was referred to BVH Bahawalpur for expert opinion and treatment. Expert opinion report of BVH Surgeon.

According to Surgeon BVH ward No.1 opinion, after ASM right and left sided chest intubation done in triangle of safety. Hemostasis secured. Tube fixed.

Injuries No.1 & 2 were declared as Jurh Jaifah due to fire arm. Duration between injuries and examination is within one hour and were caused by fire arm.

Exh. PD is correct carbon copy of MLR which is in my hand and bears my signature. I also endorsed injury statement Exh.PD/1. Expert opinion of Surgeon BVH Bahawalpur is Exh.PD/2.”

On 20.05.2015 Dr. Ahmad Raza (PW-2) conducted the post mortem examination of the dead body of the deceased namely Muhammad Younis and noted the same injuries as mentioned by him at the time of the medical examination of Muhammad Younis, and observed as under:-

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“EXTERNAL EXAMINATION.

A middle aged dead body lying on Charpai with eyes and mouth closed. Secondary rigor mortis was present. Post mortem staining was present. Dead body was in of off-white Kameez and Chadir. Clothes were blood stained. Burning was present. Holes in clothes corresponding with injuries on body.

EXAMINATION OF NECK.

Neck damaged on right side.

INJURIES.

1.Lacerated wound 2x2 cm with everted edges on right side of neck. Muscle deep.

2.Lacerated wound 1x1 cm with inverted edges on back of neck. Muscle deep.

3.Lacerated wound 1x1 cm with inverted edges on left lower chest and lacerated wound 2x2 cm with everted edges on right back lumber region.

4.Lacerated wound 4x2 cm on left forearm with wound of entry on lateral to wound of exit on medial side. Muscle deep.

Blackening was present in all wounds of entry.

OPINION.

In my opinion death occurred due to excessive bleeding and damaged vital organs (left lung and intestine) from injuries No.1 to 3 due to firearm. Duration between injuries and death was within 6-7 hours and between death and post mortem examination was within 12 hours. All the injuries were ante mortem and caused with firearm.”

The prosecution also got Dr. Salma Perveen (PW-3) examined, who on 19.10.2015 was posted as Woman Medical Officer at the RHC Faqirwali and on the same day at about 5.30 p.m. medically examined Mst. Rasheedan Bibi (PW-5) and observed as under:-

“INJURIES.

1.Lacerated wound with inverted edges 1x1 cm on anterior part of left thigh, muscle deep. Blackening present.

2.Lacerated wound with everted edges 2x2 cm on the posterior part of left thigh. Muscle deep. Fresh red blood oozing from wound site. Injury was kept under observation for x-ray.

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Injured was referred to Surgeon THQ Hospital Haroonabad for expert opinion and further management.

Vide X-ray No. 417 dated 20.11.2015 there was no evidence of fracture seen. So injuries No.1 &2 were declared as Jurh Ghayr Jaifah Mutalahimah.

The duration of injuries was within one hour and were caused by fire arm.

Exh.PF is correct carbon copy of MLR which is in my hand and bears my signature. I also endorsed injury statement Exh.PF/1.”

7.On 14.01.2016, the learned DPP gave up prosecution witnesses namely Mst. Humaira Anjum, Mst. Shamim Akhtar and Muhammad Shfique 552/C as being unnecessary. On 10.02.2016 , the learned DPP closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore regarding blood stained earth (Exh.PN) and the report of Punjab Forensic Science Agency, Lahore (Exh.PP) regarding the comparison of the empties recovered from the place of occurrence and the pistol.

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Shafique alias Pupoo son of Taj Muhammad 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 Muhammad Shafique alias Pupoo son of Taj Muhammad 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 Sessions Judge, Bahawalnagar, convicted and sentenced the appellant as referred to above.

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10.The contention of the learned counsel for the appellant is that whole case is fabricated and false. The learned counsel for the appellant argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellant further contended that the statements of Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) were not worthy of any reliance. The learned counsel for the appellant also argued that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the appellant beyond the shadow of doubt.

11.On the other hand, the learned Deputy Prosecutor General contended that the prosecution has proved its case beyond shadow of 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 Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5). The learned Deputy Prosecutor General further argued that the recovery of the weapon and the report of Punjab Forensic Science Agency, Lahore (Exh.PP) also corroborated the ocular account. The learned Deputy Prosecutor General further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly, the learned Deputy Prosecutor General prayed for the rejection of appeal.

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12.We have heard the learned counsel for the appellant, the learned Deputy Prosecutor General and with their assistance have perused the record and evidence recorded during the trial.

13.The whole prosecution case revolves around the statements of Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5). These witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) were related to each other and the deceased and the appellant also.

Their relationship with the deceased is also on record. The deceased namely Muhammad Younis son of Muhammad Din was the father of Muhammad Shahzad Ali (PW-4) and the son of Mst. Rasheedan Bibi (PW-5). The appellant was married to the daughter of Mst. Rasheedan Bibi (PW-5) at the time of occurrence. Both the prosecution witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) explained their presence at the place of occurrence categorically as the occurrence took place inside the house of the said witnesses who at the time of occurrence were present there. We have noted that the prosecution witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) in a very natural and forthright manner narrated the occurrence and gave each and every detail of the same. More importantly the occurrence took place inside the house of Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-

5)at about 3.45 p.m and the presence of Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) at that time inside their house, the place of occurrence, cannot be doubted and was but natural. The defence could not prove that the said witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) were not present at the place of occurrence, at the time of occurrence inside their own house. Both the witnesses namely

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Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) being admittedly the residents of the place of occurrence, their presence at the place of occurrence, at the time of occurrence could not be disbelieved. In this regard, reference is made to the judgment in the case titled as Abid Ali v. The State (2017 SCMR 662) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“The occurrence in this case had taken place early in the morning in the month of May at a time when the day had already broken. The appellant was not only an immediate neighbour of Fateh Bibi complainant (PW10) but he was also related to the complainant party as the complainant was the appellant's aunt. Mst. Fateh Bibi complainant was the mother of Manazir Ali deceased and she resided in the very house in which the occurrence had taken place and the time of occurrence was such that availability of the complainant in her house at that time was nothing but natural and expected.”

The identity of the appellant by his own mother in-law namely Mst.

Rasheedan Bibi (PW-5) cannot be even put to question. We have scrutinized the evidence of Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) and find that they proved themselves to be truthful witnesses and implicit reliance can be placed upon their statements. There is no evidence on record that the said witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) were motivated by any enmity to depose against the appellant. As mentioned above, Mst. Rasheedan Bibi (PW-5), was the mother in-law of the appellant and no reason existed prior to the occurrence which could have interested Mst. Rasheedan Bibi (PW-5) for that matter even Muhammad Shahzad Ali (PW-4), the son of the brother of the wife of the appellant , to get the appellant involved in this occurrence falsely. Both Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) were

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subjected to lengthy cross-examination but the defence failed to make cracks in their deposition and the genuineness of their statements has been proved.

14.Furthermore, the presence of the witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) at the place of occurrence cannot be doubted as they had stamp of injuries on their bodies.

The prosecution got Dr. Ahmad Raza (PW-2) examined who on 19.10.2015 was posted as Medical Officer at the RHC Faqirwali and on the same day at about 4.50 p.m. medically examined Muhammad Shahzad (PW-4) and observed a fire arm entry wound of the dimension of 2 cm x 1 cm present on postero-lateral part of left shoulder of Muhammad Shahzad (PW-4). Dr.

Ahmad Raza (PW-2) further opined that the firearm entry wound injury as observed on the person of Muhammad Shahzad Ali (PW-4) was bleeding profusely and had been caused recently by use of a firearm weapon. The prosecution also got Dr. Salma Perveen (PW-3) examined, who on 19.10.2015 was posted as Woman Medical Officer at the RHC Faqirwali and on the same day at about 5.30 p.m. medically examined Mst. Rasheedan Bibi (PW-5) and observed a fire arm entry wound of the dimension of 1 cm x 1cm present on anterior part of left thigh of Mst. Rasheedan Bibi (PW-5). Dr. Salma Perveen (PW-3) further opined that the firearm entry wound injury as observed on the person of Mst. Rasheedan Bibi (PW-5) was bleeding profusely and had been caused recently, within a period of just one hour and had been caused by use of a firearm weapon. The opinion of Dr. Ahmad Raza (PW-2), who had examined the injured witness of the case namely Muhammad Shahzad Ali (PW-4) and the opinion of Dr. Salma Perveen (PW-3), who had examined the injured witness of the case namely Mst. Rasheedan Bibi (PW-5) regarding the duration of injuries as suffered by the said witnesses is also conversant with

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the time of occurrence as given by the said witnesses. As mentioned above, Dr. Ahmad Raza (PW-2), who had examined the injured witness of the case namely Muhammad Shahzad Ali (PW-4) and Dr. Salma Perveen (PW-3), who had examined the injured witness of the case namely Mst. Rasheedan Bibi (PW-5), also opined that the injuries as suffered by Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) had been caused by use of a firearm weapon and these opinions of the Medical Officers also corroborate the statements of the witnesses. In this manner, Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) by no stretch of imagination, can be declared as chance witnesses or not being present at the place of occurrence , 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 and both of them namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) received firearm weapon injuries during the occurrence . The august Supreme Court of Pakistan in the case of Khadim Hussain vs. The State (P L D 2010 Supreme Court 669) has held as under:-

“We have not been persuaded to agree with the prime contention of learned Advocate Supreme Court on behalf of appellant that the ocular version could not be substantiated by any corroboratory material being devoid of merit for the simple reasons that ocular version finds full support from the medical evidence as is indicative from the nature of firearm injuries received by Abdul Latif, deceased. Besides that Muhammad Shafique (P.W.8), Mst. Anwar Mai (P.W.11 and Muhammad Akram had also received firearm injuries as per medical evidence as furnished by Dr. Anwar-ul-Haq, P.W.17.”

Reliance is also placed on the case of “KHADIJA SIDDIQUI and another Vs.

SHAH HUSSAIN and another” (P L D 2019 Supreme Court 261) wherein the august Supreme Court of Pakistan observed that implicit reliance could be

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placed on the statement of an injured witness and noted with some concern that in the entire operative part of the impugned judgment passed by the High Court no discussion had taken place as to why the High Court had ignored or disbelieved the ocular account furnished by the minor and injured eye-witness namely Sofia Siddiqui of that case.

15.We have also noted that the two eye witnesses of the case namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) explained that on the day of occurrence the appellant came to their house when they were present there and started abusing them. Both the witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) stated that the appellant not only caused fatal injuries with his firearm weapon to the deceased namely Muhammad Younis but when an effort was made by the witnesses to protect the deceased , the appellant also used his firearm weapon to inflict grievous injuries on the persons of both the witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5). During the course of cross-examination the presence of both the witnesses was further explored and explained. During cross-examination Muhammad Shahzad Ali (PW-4) was questioned with regard to the distance from which the deceased had received the fire and he replied as under:-

“First fire hit to Muhammad Younas from a distance of about 5/6 feet. Accused was facing towards West while Mohammad Younas was facing towards East-North corner.”

Similarly, Mst. Rasheedan Bibi (PW-5) was also questioned during cross- examination with regard to the various details of the incident and she gave consistent answers. Mst. Rasheedan Bibi (PW-5) during cross-examination stated as under:-

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“Soon after entering in the house Mohammad Shafique started firing upon us. Mohammad Shafique accused made three fires upon my son Mohammad Younas while one fire hit to me and one fire hit to my grand son namely Mohammad Shahzad.

At the time of occurrence, I was towards West when accused made fire upon me. Mohammad Shafique was also towards West. The whole occurrence completed within moments.”

The above portion of cross-examination of both the witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) further proves the sequence of the occurrence and the role of the appellant in the same. During the course of investigation, Kashif Iqbal, ASI (PW-6) , 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.PJ). The report of the Punjab Forensic Science Agency, Lahore (Exh.PN) establishes that the said blood taken from the place of occurrence was of human origin. The place of occurrence was further established by the rough site plan (Exh.PH) as prepared by Kashif Iqbal , ASI (PW-6) , the Investigating Officer of the case and the scaled site plan of the place of occurrence (Exh.PM) as prepared by Ghulam Yaseen, Tracer (PW-10). Kashif Iqbal, ASI (PW-6), the Investigating Officer of the case during cross- examination stated as under:-

“According to rough site plan Mohammad Shafique accused was present at point No.1 while the presence of all the injured persons was shown by me towards South of place of occurrence.”

Furthermore, 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

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because of the close relationship of the witnesses with the appellant, the question of misidentification even does not arise. Furthermore, in the incident in issue, the weapon had been used from very close proximity and, thus, it would not be difficult for the complainant party to identify the present appellant. Both the witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) 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. Both the witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) being close relatives of the deceased as well as the appellant had no reason to falsely implicate the appellant in the commission of the offence by substituting him and 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 relatives 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. Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) ,in a straightforward manner, held the appellant responsible for the murder of Muhammad Younis (deceased).

16.The occurrence in this case took place in the broad-daylight at about 3.45 p.m which was reported by the complainant namely Muhammad Shahzad Ali (PW-4) at 5.00 p.m. and whose oral statement (Exh.P.G.) was recorded

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by Kashif Iqbal, ASI (PW-6), the Investigating Officer of the case, when Muhammad Shahzad Ali (PW-4) had been under treatment at the RHC, Faqirwali. On the basis of the recorded statement (Exh.PG) of the complainant namely Muhammad Shahzad Ali (PW-4), the formal F.I.R.

(Exh.P.G/2) was registered at 5.15 p.m. by Sabir Munir, ASI (PW-11) . Thus, it is apparent that the FIR (Exh.PG/2) was got lodged within a reasonable time specially when Muhammad Shahzad Ali (PW-4) had suffered the trauma of the death of his father and Mst. Rasheedan Bibi (PW-5) had suffered the trauma of the death of her son at the hands of their own relative, son-in-law of Mst. Rasheedan Bibi (PW-5). Muhammad Shahzad Ali (PW-4), not only named the appellant, but also mentioned each and every minor as well as material fact of the incident in his oral statement (Exh. PG), 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 F.I.R. The promptitude in lodging of the FIR also corroborates the case of the prosecution as against the appellant.

This promptitude in reporting the matter to the police also establishes the presence of the witnesses at the place of occurrence, at the time of occurrence and supports their narrative. In this regard, reference is made to the judgment in the case titled as Muhammad Waris v. The State (2008 SCMR 784) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“The names of the said two eye-witnesses could not have been mentioned in such a promptly lodged F.I.R. if they had not been with the deceased persons at the time of their death.”

17.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

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vital parts of his body and he succumbed to the said injuries caused by the appellant, whereas both the witnesses namely Muhammad Shahzad Ali (PW-

4)and Mst. Rasheedan Bibi (PW-5) also received grievous injuries at the hands of the appellant denuding the intention of the appellant to commit the Qatl-i-Amd of both the witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5), though the lives of the said witnesses were saved due to the grace of Allah . The medical evidence fully supports the ocular account. Dr. Ahmad Raza (PW-2) on 19.10.2015 at about 4.50 p.m.

medically examined Muhammad Younis (then injured later deceased) and observed a firearm entry wound of the dimension of 1 cm x1 cm with inverted edges present on back of neck of Muhammad Younis (then injured later deceased). Dr. Ahmad Raza (PW-2) also observed another firearm entry wound of the dimension of 1 cm x1 cm with inverted edges present on the left side of the chest of Muhammad Younis (then injured later deceased). Dr.

Ahmad Raza (PW-2) observed a third firearm entry wound of the dimension of 4 cm x 2 cm present on the left forearm of Muhammad Younis (then injured later deceased).Dr. Ahmad Raza (PW-2) conducted the post mortem examination of the dead body of the deceased namely Muhammad Younis after his death and noted the same injuries as mentioned by him at the time of the medical examination of Muhammad Younis, and further opined that the deceased died due to the injuries suffered by him on his neck and chest. The appellant has been saddled with the responsibility of causing the said fatal injuries as well as the other injury. As mentioned above, Dr. Ahmad Raza (PW-2) on 19.10.2015 at about 4.50 p.m. medically examined Muhammad Shahzad (PW-4) and observed a fire arm entry wound of the dimension of 2 cm x 1 cm present on postero-lateral part of left shoulder of Muhammad

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Shahzad (PW-4). Dr. Ahmad Raza (PW-2) further opined that the firearm entry wound injury as observed on the person of Muhammad Shahzad Ali (PW-4) was bleeding profusely and had been caused recently by use of a firearm weapon. Dr. Salma Perveen (PW-3) on 19.10.2015 medically examined Mst. Rasheedan Bibi (PW-5) and observed a fire arm entry wound of the dimension of 1 cm x 1cm present on anterior part of left thigh of Mst.

Rasheedan Bibi (PW-5). Dr. Salma Perveen (PW-3) further opined that the firearm entry wound injury as observed on the person of Mst. Rasheedan Bibi (PW-5) was bleeding profusely and had been caused recently, within a period of just one hour and had been caused by use of a firearm weapon. Dr. Ahmad Raza (PW-2) also opined that the injuries suffered by Muhammad Younis deceased and Muhammad Shahzad Ali (PW-4) had blackening around them and Dr. Salma Perveen (PW-3) opined that the firearm entry wound observed on the person of Mst. Rasheedan Bibi (PW-5) had blackening around it.

These observations of both the Medical Officers who examined the deceased and the injured witness further corroborates the ocular account wherein it had been stated that the firing had been made from a very short distance. In this manner the ocular account is fully verified by the medical evidence available on record. The seat of injuries as suffered by both the witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) and the gravity of the same also proves that the appellant attempted to commit Qatl-i- Amd of both the witnesses namely Muhammad Shahzad Ali (PW-4) and Mst.

Rasheedan Bibi (PW-5). The statements of Dr. Ahmad Raza (PW-2) and Dr.

Salma Perveen (PW-3) as recorded by the learned trial court reveals the nature of the injuries as being grievous. The appellant by using a pistol of 9mm bore for firing at the deceased and the witnesses namely Muhammad Shahzad Ali

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(PW-4) and Mst. Rasheedan Bibi (PW-5) clearly revealed his intention. In view of the above discussion, it is ascertained and proved that the intent of the appellant was to cause death and that he is guilty of Qatl-i-Amd of Muhammad Younis (deceased) and the appellant is also guilty of attempting to commit Qatl-i-Amd of both the witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5).

18.The learned counsel for the appellant has also argued that the occurrence had been committed by some unknown assailants and the appellant had not participated in the same. The learned counsel submitted that the truthfulness of the defence version could be visualized even in absence of any evidence in this regard. We, having heard the learned counsel for the appellant and after perusing the record with his assistance, have found that this plea of the appellant as such was neither traceable in support thereof in the evidence nor the appellant produced any evidence in defence to prove the same.

Besides above, the defence version as put-forth to the prosecution witnesses during cross-examination and also advanced in the statement of the appellant under section 342, Cr.P.C. is based on a couple of suggestions, which suggestions were categorically denied by all the prosecution witnesses to whom they were put. The plea raised by the appellant in his statement under section 342, Cr.P.C. or through suggestions put to the prosecution witnesses in cross-examination is not borne out from the record of evidence available and hence is rejected. The august Supreme Court of Pakistan in the case of Shahid Ghafoor Vs. the State (2007 SCMR 1338) has held as under:- “ The petitioner had taken a plea which is having no support from any evidence either from the defence or even by inference from the prosecution.”

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Reliance is also placed the case of Navid Akhtar and another v. Muhammad Saeed Khan and another (2004 SCMR 1469) wherein it has been held as under:-

“The defence version that during snatching the pistol from the deceased three or four fire shots went off which hit the deceased, is not appealing at all. It is strange that during the scuffle of snatching pistol, the petitioner did not receive even a scratch. It is also not believable that his licensed pistol which he produced before the police, was substituted for the real weapon of offence. The plea of self-defence taken by the petitioner appears to be un-founded as he failed to substantiate his claim by any cogent proof. Under Article 121 of the Qanun-e-Shahadat Order, 1984 the onus to prove the existence of circumstances bringing his case within any of the General Exceptions in the Pakistan Penal Code or within any special exceptions or proviso contained in any other pan (sic) of the same Code or in any law, was on him which he failed to discharge and in such circumstances presumption can tie drawn against him. Since the petitioner has failed to prove his defence plea by any evidence so much so that he did not even appear under section. 340(2), Cr.P.C. to give evidence on oath in disproof of the charges or allegations against him therefore, presumption can be drawn against him and such a plea cannot be sustained in absence of any proof. There is no doubt that the prosecution has no prove its case and the defence version, if reasonably possible being true can be taken into consideration but where such a plea is a mere claim and is not convincing and there is not even an iota of evidence in support of the such plea except for certain suggestions put to the P.Ws. in cross-examination which were categorically denied, such a plea cannot be maintained”.

19.Regarding the recovery of the Pistol (not produced and exhibited during the trial) from the appellant namely Muhammad Shafique alias Pupoo son of Taj Muhammad, the same cannot be relied upon as the Investigating Officer of the case, did not join any witness of the locality during the recovery of the said Pistol from the appellant which was in clear violation of section 103 Code of Criminal Procedure, 1898 and therefore cannot be used as incriminating evidence against the appellant, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. Muhammad Abdullah 235/C (PW-1) during cross-examination admitted as under:-

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“ The house of recovery was open. However, no inmate was present there. No Lumberdar or Patidar was summoned by the I.O. at the time of alleged recovery.”

The august Supreme Court of Pakistan in the case of Muhammad Ismail and others Vs. The State ( 2017 SCMR 898) at page 901 has held as under:- “For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard.”

Furthermore, we have also perused the report of Punjab Forensic Science Agency, Lahore (Exh.PP) regarding the analysis of the Pistol recovered from the appellant and the empties collected from the place of occurrence.

According to the said report both the empties and the pistol were received by Punjab Forensic Science Agency, Lahore on the same day. Saqib Murtaza, 112/HC (PW-7) stated that on 20.10.2015 Kashif Iqbal, ASI (PW-6) handed over to him received two sealed parcels said to contain blood stained earth and empties recovered from the place of occurrence and further stated that on 30.10.2015 Muhammad Ajmal, SI (PW-9) handed over to him a sealed parcel said to contain a pistol and on 05.11.2015 he handed over all the three parcels to Muhammad Ajmal, SI (PW-9) for their onward transmission to the office of Punjab Forensic Science Agency, Lahore. In this manner the said report of Punjab Forensic Science Agency, Lahore.

(Exh. PP) has no evidentiary value. The august Supreme Court of Pakistan has held in the case of Nasrullah alias Nasro v. The State (2017 SCMR 724) as under :-

“The alleged recovery of a pistol from the appellant's possession during the investigation was legally inconsequential because the report of the Forensic Science Laboratory brought on the record shows that the recovered pistol and the secured crime-empties had been received by the Forensic Science Laboratory together on one and the same day.”

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The august Supreme Court of Pakistan has held in the case of Nasrullah alias Ali Sher v. The State (2008 SCMR 707) as under :-

“The crime-empties having been allegedly found at the place of occurrence and having been retained for so long the police station and having been sent to the F.S.L. along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony.”

Therefore, the recovery of the pistol (not produced and exhibited during the trial) 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 is not proved and the same cannot be used as a circumstance against the appellant.

20.The motive of the occurrence, as mentioned by both the witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) was that the relationship of the appellant with his wife namely Safia Bibi, the sister of the deceased, had deteriorated and due to continuous quarreling, Mst. Safia Bibi returned to the home of her brother namely Muhammad Younis (deceased) and mother namely Mst. Rasheedan Bibi (PW-5). It is obvious from the perusal of the record that Safia Bibi, the sister of the deceased and the daughter of Mst. Rasheedan Bibi (PW-5) , did not join the investigation of the case and also did not appear before the learned trial court to prove the motive as stated by both the prosecution witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5) .

Muhammad Shahzad Ali (PW-4) during cross-examination admitted as under:-

“ We did not produce Mst. Safia Bibi as well as Mohammad Sharif above mentioned during investigation.”

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Similarly, Kashif Iqbal, ASI (PW-6), and Investigating Officer of the case, during cross-examination admitted as under:-

“ I did not record the statement of Mst. Safia Bibi u/s 161 Cr.P.C.”

Muhammad Ajmal, SI (PW-9) another Investigating Officer of the case also admitted during cross-examination as under:-

“Mst. Safia Bibi wife of accused during the investigation neither appeared before me nor I summoned her. I probed motive part of the occurrence. However, in this regard I did not record the statement of Mst. Safia Bibi.”

Furthermore, despite the claim of the prosecution witnesses that the motive of the occurrence was the continuing quarreling of the appellant with his wife , Mst. Safia Bibi never reported any such quarrel to anyone nor sought any access to the judicial process for the redressal of her grievance.

Muhammad Shahzad Ali (PW-4) admitted during cross-examination as under:-

“Mst. Safia Bibi did not file any suit against Mohammad Shafique accused present before the Court regarding their matrimonial issues. Mst. Safia Bibi never filed any application against Mohammad Shafique accused about alleged torture. We have no blood feud with Mohammad Shafique accused.”

Furthermore, we have also noted that even if the prosecution witnesses are believed with regard to the motive of the occurrence, however it is unexplained as to why the appellant proceeded to murder Muhammad Younis with whom he had no dispute and did not act in any manner against Mst. Safia Bibi. Muhammad Shahzad Ali (PW-4) admitted during cross- examination that neither he nor the deceased and neither Mst. Rasheedan

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Bibi (PW-5) had any dispute with the appellant. Muhammad Shahzad Ali (PW-4) admitted during cross-examination as under:-

“It is correct that Mohammad Shafique accused has no grudge against me, my father Mohammad Younas and my grandmother Mst. Rashidan Bibi.”

Nonetheless, the best evidence with regard to proving the motive of the occurrence available with the prosecution was the evidence of Mst. Safia Bibi, and the same having not being produced, the prosecution failed to prove the motive. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged, and the fact that the said motive was so compelling that it could have led the appellant to have committed the Qatl-i-Amd of the deceased. There is a haunting silence with regard to the minutiae of motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. The august Supreme Court of Pakistan has held in the case of “Muhammad Asif v. The State” (2008 SCMR 1001) as under:

“Coming to motive, no independent witness was produced in whose presence the altercation had taken place between Shafi and appellant at one side and Mazhar Hussain deceased on the other side.”

So, this leads us to the conclusion that prosecution remained unable to prove the motive as alleged.

21.We have disbelieved the evidence of prosecution qua the motive and recovery of the Pistol in this case. However, if the evidence of motive and recovery of the Pistol is excluded from consideration, even then there is sufficient incriminating evidence available on the record against the appellant namely Muhammad Shafique alias Pupoo son of Taj Muhammad

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to prove the case of prosecution against him. As discussed earlier, the prosecution case was fully proved through the evidence of the eye-witnesses namely Muhammad Shahzad Ali (PW-4) and Mst. Rasheedan Bibi (PW-5).

The said eye-witnesses stood the test of lengthy cross-examination, but their evidence could not be stunned. Their evidence is quite natural, straightforward and confidence inspiring. The ocular account of the prosecution as given by the abovementioned eye-witnesses is fully supported by the medical evidence furnished by Dr. Ahmad Raza (PW-2) and Dr.

Salma Perveen (PW-3), therefore, we hold that the prosecution has proved its case against the appellant Muhammad Shafique alias Pupoo son of Taj Muhammad beyond the shadow of any doubt.

22.Now coming to the quantum of sentence we have noted some mitigating circumstances in favour of the appellant namely Muhammad Shafique alias Pupoo son of Taj Muhammad, firstly, the evidence of recovery of the Pistol from the possession of the appellant namely Muhammad Shafique alias Pupoo son of Taj Muhammad has been disbelieved by us for the reason mentioned in Para No.19 of this judgment, secondly the prosecution had alleged a specific motive in this case but 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 alias Miro v. The State (2009 SCMR 1188) wherein august Supreme Court has held as under:--

"It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the parts of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence."

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The august Supreme Court of Pakistan has held in the case of “Ansar Ahmad Khan Barki v. The State and another” (1993 SCMR 1660), that the prosecution is bound by law to exclude all possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death. We are convinced that the appellant namely Muhammad Shafique alias Pupoo son of Taj Muhammad in the peculiar circumstance of this case deserves consideration to the extent of his sentence one out of two provided under section 302(b) of P.P.C. It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which had resulted into the death of Muhammad Younis, 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

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sentence provided under section 302(b), P.P.C. and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-i-amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCMR 4), Faqir Ullah v. Khalil-uz-Zaman (1999 SCMR 2203), Muhammad Akram v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 338)".

The august Supreme Court of Pakistan has held in the case of “Mst. NAZIA ANWAR v. The State and others” (2018 SCMR 911), while considering the penalty for an act of commission of Qatl-i-amd, as under :- “In these circumstances it is quite obvious to me that the motive asserted by the prosecution had remained utterly unproved. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder.”

We are also fortified in our view in this regard by the cases of “Nawab Ali v.

The State” (2019 SCMR 2009), “Muhammad Akram alias Akrai v. The State” (2019 SCMR 610), “Iftikhar Mehmood and another v. Qaiser Iftikhar and others” (2011 SCMR 1165), “Muhammad Mumtaz v. The State and another” (2012 SCMR 267), “Muhammad Imran alias Asif v. The State” (2013 SCMR 782), “Sabir Hussain alias Sabri v. The State” (2013 SCMR 1554), “Zeeshan Afzal alias Shani and another v. The State and another” (2013 SCMR 1602), “Naveed alias Needu and others v. The State and others” (2014 SCMR 1464), “Muhammad Nadeem Waqas and another v. The State” (2014 SCMR 1658), “Muhammad Asif v. Muhammad Akhtar and others” (2016 SCMR 2035) and “Qaddan and others v. The State”

(2017 SCMR 148).

23.In the light of above discussion, the conviction of the appellant namely Muhammad Shafique alias Pupoo son of Taj Muhammad as awarded by the learned trial Court through the abovementioned judgment is

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maintained but the sentence of death awarded to the appellant namely Muhammad Shafique alias Pupoo son of Taj Muhammad 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 other sentences awarded to the appellant namely Muhammad Shafique alias Pupoo son of Taj Muhammad under sections 324, 337D and 337 F(iii) PPC are maintained and upheld. All the sentences of the appellant namely Muhammad Shafique alias Pupoo son of Taj Muhammad are ordered to run concurrently. The benefit provided under section 382-B of the Code of Criminal Procedure, 1898, is also extended to the appellant namely Muhammad Shafique alias Pupoo son of Taj Muhammad. Consequently, with the above said modification in the sentence awarded to the appellant namely Muhammad Shafique alias Pupoo son of Taj Muhammad under section 302(b) PPC, Criminal Appeal No.83-J of 2018 is hereby dismissed.

24.Murder Reference No. 13 of 2016 is answered in Negative and the death sentence awarded to Muhammad Shafique alias Pupoo son of Taj Muhammad is Not Confirmed.

(SOHAIL NASIR) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Raheel Approved for Reporting

JUDGE. JUDGE