The State vs Muhammad Shahbaz

Stereo. HC JD A 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR.

JUDICIAL DEPARTMENT

Murder Reference No.19 of 2019 (The State Vs. Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi ) Criminal Appeal No. 534 of 2019 (Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi Vs. The State and another.)

JUDGMENT

Date of hearing: 15.12.2021.

Appellant by: Syed Zeeshan Haider, Advocate.

State by: Ch. Asghar Ali Gill, Deputy Prosecutor General.

SADIQ MAHMUD KHURRAM, J. – Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif (convict) was tried alongwith his co-accused namely Muhammad Sufiyan alias Sufiyani, Muhammad Arif and Muhammad Irshad (all since acquitted) by the learned Additional Sessions Judge, Chishtian in case FIR No. 128 of 2014 dated 16.04.2014 registered at Police Station Saddar Chishtian, District Bahawalnagar in respect of offences under sections 302 and 34 PPC for committing the Qatl-i-Amd of Shakeel Ahmed son of Abdul Wahid (deceased). The learned trial court vide judgment dated 26.06.2019, convicted Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif (convict) and sentenced him as infra:

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Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif:- Death under section 302(b) PPC as Tazir for committing Qatl-i- Amd of Shakeel Ahmed son of Abdul Wahid (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 whereof, the convict was directed to undergo further six months of simple imprisonment.

The convict was ordered to be hanged by his neck till dead.

Muhammad Sufiyan alias Sufiyani, Muhammad Arif and Muhammad Irshad, the co-accused of the convict, were however acquitted by the learned trial court.

2.Feeling aggrieved, Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif (convict) lodged the Criminal Appeal No.534 of 2019 of 2019 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.19 of 2019 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif. We intend to dispose of the Criminal Appeal No. 534 of 2019 and Murder Reference No.19 of 2019 through this single judgment.

3.Precisely the necessary facts of the prosecution case, as narrated by Ahmed Saeed (PW-1), the complainant of the FIR, are as under:- “Stated that on 12-04-2014 quarrel took place in between Amir Shahbaz, Muhammad Irshad, Muhammad Arif and Shakeel Ahmed (deceased) due to passing on donkey cart. Both parties were injured in this fight. Accused Amir Shahbaz kept grudge in his mind due to above said quarrel. On 15-04-2014 after Isha prayer Shakeel Ahmed (deceased) was sitting on a Phatta before his shop and electric bulb was on. I alongwith Abdullah Tariq and Muhammad Tahir Raheem were present in front of my house at that time. Meanwhile accused persons present in court namely Amir Shahbaz armed with pistol 30- bore, Muhammad Irshad and one unknown later on nominated as Muhammad Sufyan armed with firearm weapons reached there and raised Lalkara to Shakeel Ahmed (deceased) he shall be taught a

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lesson due to beating to their Sufyan father. Shakeel Ahmed ran towards door of his house. Accused Amir Shahbaz made straight fire with his pistol which hit upon the lower back of Shakeel Ahmed (deceased). We witnessed the entire occurrence. Accused persons fled away from the occurrence while brandishing their respective weapons. The Shakeel Ahmed succumbed to the injuries at spot. I alongwith witnesses took dead body and reached at THQ hospital Chishtian. PWs remained with dead body for its care and I went to police station and submitted written application Exh-PA for registration of case which bears my signatures Exh-PA/1. My FIR was registered by police after 12 O'Clock in the same night. Police reached at THQ hospital Chishtian. The above said occurrence was committed by the accused persons Amir Shahbaz, Muhammad Sufyan and Muhammad Irshad on abetment of accused Muhammad Iqbal and Muhammad Arif.

Police left THQ hospital Chishtian alongwith the PWs to place of occurrence and conducted preliminary investigation. During investigation I0 being in league with accused persons declared Muhammad Iqbal, Muhammad Arif and Muhammad Irshad not to be involved in the occurrence. All the accused persons are real culprits. They may very kindly be punished in accordance with law.”

4.After the formal investigation of the case, the report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the accused were sent to face trial. The learned trial court framed the charge against the accused on 06.02.2019, to which the accused pleaded not guilty and claimed trial.

5.The prosecution in order to prove its case, got statements of as many as eleven witnesses recorded. The ocular account of the case was furnished by Ahmed Saeed (PW-1) and Tahir Raheem(PW-2). Muhammad Jamil, Draftsman (PW-3) prepared the scaled site plan of the place of occurrence (Exh.PE).

Muhammad Ashraf 694/HC (PW-4) stated that on 16.04.2014 Muhammad Aslam, SI (PW-9) handed over to him two sealed parcels said to contain blood stained earth and an empty taken into possession from the place of occurrence and on 28.04.2014 he handed over the said parcels to Muhammad Bilal 812/C (PW-5) for their onward transmission to the office of Punjab Forensic Science

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Agency, Lahore and further stated that on 29.05.2014 Muhammad Aslam, SI (PW-9) handed over to him a sealed parcel said to contain a pistol which on 03.07.2014 he handed over the said parcel to Faiz Ahmad 954/C (PW-6) for its onward transmission to the office of Punjab Forensic Science Agency, Lahore.

Anwar Hassan 907/C (PW-7) stated that on 16.04.2014 the Medical Officer after conducting the post mortem examination of the dead body of the deceased handed over to him the last worn clothes of the deceased. Masroor Ali (PW-10) stated that on 16.04.2014 he identified the dead body of the deceased at the time of its post mortem examination. Muhammad Aslam, SI (PW-9) investigated the case from 16.04.2014 till 20.04.2015, arrested the appellant in this case on 20.05.2014 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. Ijaz Kashif (PW-8) examined, who on 16.04.2014 was posted as Medical Officer at the THQ Hospital, Chishtian and on the same night at about 2.30 a.m. conducted the post mortem examination of the dead body of the deceased. Dr. Ijaz Kashif (PW-8) after conducting the post mortem examination of the dead body of the deceased namely Shakeel Ahmed son of Abdul Wahid observed and opined as under:- “Injury No.01

A circular lacerated wound measuring 0.8x0.8cm with inverted margins, no burning and blackening was present X deep going posteriorly on upper border of left hip medially.

On exploration underneath muscles were damaged. Bone was fractured. Peritoneal cavity was ruptured and full of blood because of rapture (sic) of femoral vessels.

Injury No.02

A circular lacerated wound measuring 0.8cm x 0.8cm with everted margins, no burning and blackening was present X deep going on upper one third of right thigh interiorly.

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On exploration underneath muscles were damaged. Injury No.2was continuation of injury No.01.

OPINION.

After thorough internal and external postmortem of the dead body I am of the opinion that injury No.01 and 02 are the cause of death leading to severe blood loss, hypovolemic shock, cardio pulmonary arrest and finally death. This injury is sufficient to cause death in ordinary course of nature. Injuries are ante- mortem in nature and caused by firearm.

PROBABLE TIME THAT ELAPSED:

Between injury and death : 10 to 15 minutes.

Between death and postmortem: within 06 (six) hours.”

7.On 25.05.2019, the learned counsel for the complainant of the F.I.R gave up the prosecution witnesses namely Abdullah Tariq and Muhammad Saleem as being unnecessary and submitted copy of F.I.R 166 of 2014 (Exh.PN), copy of Medico Legal Examination Certificate (Exh.PO), copy of Rapt No.32 (Exh.PP), copy of Medico Legal Examination Certificate (Exh.PQ) and copy of Medico Legal Examination Certificate (Exh.PR). On 27.05.2019 the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PS) regarding blood stained earth and the report of Punjab Forensic Science Agency, Lahore (Exh.PT) regarding the comparison of the empty taken in possession from the place of occurrence and the recovered pistol.

8.After the closure of prosecution evidence, the learned trial court examined the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif under section 342 Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you,

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he replied that he had been involved in the case falsely and was innocent. The appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif further claimed that he was not present at the place of occurrence, at the time of occurrence and rather was looking after his father who was admitted in BV Hospital Bahawalpur. The appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif opted not to get himself examined under section 340(2) Cr.P.C. however produced attested copy MLR of Muhammad Arif, his co-accused, since acquitted, dated 12-04-2014 as Exh-DB, attested copy of his MLR dated 12-04- 2014 as Exh-DC, attested copy of Rapt No.32 dated 12-04-2014 got recorded by Shakeel Ahmed (deceased) as Exh-DD, attested copy of MLR of deceased Shakeel Ahmed dated 12-04-2014 as Exh-DE, attested copy of his application to be declared a child as defined under the Juvenile Justice System, Ordiance,2000 as Exh-DF, attested copy of order dated 14-02-2015 declaring him a child as defined under the Juvenile Justice System, Ordiance,2000 as Exh-DG, attested copy of statement of Muhammad Abdullah Secretary Union Council Chak No.28/G as Exh-DH , attested copy of statement of Muhammad Hayat Babar Headmaster Govt. High School Chak No. 109/F Tehsil Chishtian as Exh-DJ, his original birth certificate as Exh-DK, his original Form-B as Exh- DL, attested copy of register admission/struck off of School of 109/F as Exh- DM, his School leaving certificate o as Exh-DN and attested copy of FIR No.166 of 2014 lodged by accused Muhammad Arif as Exh.DO as evidence in his defence.

9.On the conclusion of the trial, the learned Additional Sessions Judge, Chishtian, convicted and sentenced the appellant as referred to above.

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10.The contention of the learned counsel for the appellant precisely is that whole case is fabricated and false and that 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 in support of this appeal, further contended that the story of the prosecution mentioned in the F.I.R., on the face of it, was highly improbable and the reason assigned by the complainant and the eye-witnesses for being present at the place of occurrence was without any justification. He further contended that the statements of Ahmed Saeed (PW-1) and Tahir Raheem(PW-2) were not worthy of reliance.

The learned counsel for the appellant further argued 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 submitted that the learned trial court, while disbelieving the same evidence, had acquitted Muhammad Sufiyan alias Sufiyani, Muhammad Arif and Muhammad Irshad, the co-accused of the appellant and the conviction awarded to the appellant on the basis of same evidence was not justified. Learned counsel for the appellant also argued that the plea of alibi taken by the appellant was wrongly rejected by the learned trial court. The learned counsel for the appellant finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of a 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 injury suffered at the hands of the appellant.

The learned Deputy Prosecutor General further contended that the medical

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evidence also corroborated the statements of Ahmed Saeed (PW-1) and Tahir Raheem(PW-2). The learned Deputy Prosecutor General further argued that the recovery of the weapon and the report of Punjab Forensic Science Agency, Lahore (Exh.PT) 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.

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 the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem (PW- 2). The deceased namely Shakeel Ahmed was the brother of Ahmed Saeed (PW-1) and paternal cousin (Tayazad) of Tahir Raheem (PW-2). We have noted that both the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem (PW-2) were residents of near the place of occurrence. We have perused the scaled site plan of the place of occurrence (Exh.PE) as prepared by Muhammad Jameel, draftsman (PW-3) and the rough site plan of the place of occurrence (Exh.PK) as prepared by Muhammad Aslam, SI (PW-9) and have noted that the house of the prosecution witness namely Ahmed Saeed (PW-1) has been marked in the same and according to the said site plans (Exh.PE and Exh.PK), Ahmed Saeed (PW-1) had a wall sharing with the house of the deceased, outside the door of which house the occurrence took place.

Furthermore, we have also noted that both the prosecution witnesses namely

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Ahmed Saeed (PW-1) and Tahir Raheem (PW-2) convincingly explained their arrival at the place of occurrence. Both the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem (PW-2) explained that they were standing outside of their houses when the appellant arrived at the place of occurrence and proceeded to fire at the deceased with the pistol he was carrying, causing the death of the deceased in front of the main door of the house of the deceased. It was also brought on record that during the course of cross- examination that both the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem (PW-2) were the residents of the village where the occurrence took place and the house of the appellant was about four squares from the said village. Ahmed Saeed (PW-1) during cross-examination explained as under:-

“It is correct that accused persons are residents of chak No: 111/Murad however, we are residents of Chak No. 110/Fatch and distance between house of accused persons and our house in respective Chakes is about four square only.

It is correct that I am resident of Chak No. 110/F since my birth.”(emphasis supplied)

Similarly, Tahir Raheem(PW-2) during cross-examination explained as under:- “Accused persons except accused Sufiyan are resident of Chak No.

111/Murad which is Izafi Basti Chak No. 110/F house of accused persons Amir Shahbaz etc is at distance of 3/4 square from the place of occurrence.

It is correct I am resident of Chak No. 110/F since my birth.”(emphasis supplied)”.

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As mentioned above, the place of occurrence was outside the main entry door of the house of the deceased and the prosecution witness namely Ahmed Saeed (PW-1) was the next door neighbor of the deceased whereas the prosecution witness namely Tahir Raheem (PW-2) was admittedly the resident of the same area, therefore, their presence at the place of occurrence, at the time of occurrence was natural. The defence admitted the place of occurrence being the same as deposed by the witnesses and the said place was further proved to be the place of occurrence from the report of the Punjab Forensic Science Agency, Lahore (Exh.PS) according to which the blood stained soil taken from the place of occurrence was of human origin. Hence we find that the statements of the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem(PW-2) are worth of reliance. Reference is made to the judgment in the case titled as Zakir Hussain v. The State (2008 SCMR 222) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“The place of occurrence being situated close to the residential houses of the parties, the presence of the eye-witnesses at the barber shop would not be challengeable.”

Reference is also made to the judgment in the case titled as “Muhammad Aslam v. The State” (2012 SCMR 593) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“Both the eye-witnesses are residents of the same village where the incident took place and their presence at the spot has been established beyond any shadow of doubt.”

Reference is also 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

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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.”

14.Another important aspect of the case which rules out any misidentification of the appellant by the prosecution witnesses is the fact that on 12.04.2014 a quarrel had taken place between the complainant party and the accused and this occurrence took place on 15.04.2014, therefore, it is proved on record that both the parties were well known to each other. The fact of the quarrel between the complainant party and the accused was further elaborated during the cross-examination . Ahmed Saeed (PW-1) was questioned during cross-examination and he answered as under:- “It is correct that in above said quarrel dated 12.04.14, present accused persons Muhammad Arif, Amir Shahbaz and Fayyaz were injured It is correct that Rapt was got entered on behalf of accused Arif after medical examination and thereafter criminal case was also registered against deceased Shakeel and others.” (emphasis supplied).

The learned counsel for the appellant has vehemently argued that as the occurrence had taken place at night time and as both the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem (PW-2) claimed that a light bulb was lit at the place of occurrence but because the said light bulb was not taken into possession by the Investigating Officer of the case , therefore, it was not possible for the witnesses to have identified the appellant. In this regard we have noted that not only the appellant was a resident of a place where it was just four squares away from the residences of the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem (PW-2) but also admittedly a quarrel

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had taken place between the complainant party and the accused on 12.04.2014, just three days before the occurrence, therefore, there did not exist any possibility that the appellant could not have been identified by the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem(PW-2) during the occurrence . Furthermore, during the course of cross-examination Muhammad Aslam, SI (PW-9) , the Investigating Officer of the case explained that the electricity bulb was available at the place of occurrence and its presence was also mentioned in the rough site plan (Exh.PK) prepared by him. Muhammad Aslam, SI (PW-9) during cross-examination explained as under:- “It is correct that in rough site plan Exh-PK there is no point specifically regarding presence of electricity bulb shown by me however in point No.04 of detailed particulars in Exh-PK the enlightening of electricity bulb is written ”(emphasis supplied)

We have ourselves perused the scaled site plan of the place of occurrence (Exh.PE) as prepared by Muhammad Jameel, draftsman (PW-3) and the rough site plan of the place of occurrence (Exh.PK) as prepared by Muhammad Aslam, SI (PW-9) and have noted that it has been clearly detailed in the said site plans (Exh.PE and Exh.PK) that the electricity bulb was available at the place of occurrence and it was in the light of the same that the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem(PW-

2)witnessed the occurrence. Reliance in this regard is placed on the case of Mst. SHAMIM AKHTAR Versus FIAZ AKHTAR and two others (P L D 1992 Supreme Court 211)wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“20. Another infirmity pointed out by the learned counsel is nonproduction of the torch. According to the complainant, she had identified the accused in the torchlight. The accused

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were fully known to the complainant prior to the occurrence. There was no question of wrong identification. Even otherwise non-production of torch does not detract the evidentiary value of the complainant. It is not fatal to the prosecution case. If she had produced the torch, it could be easily said that it was procured from Bazar. How can it be said that due to the non-production of the torch the case had been fabricated against the respondents.

The statement of a witness cannot be discarded on mere presumption of certain facts. After going through the statement of the complainant, the conclusion is irresistible that the same has come from the mouth of a natural and true witness. The statement of Mst. Shamim Akhtar is natural and coherent, therefore, implicit reliance can be placed on the testimony of this witness.”

Both the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem (PW-2) explained their presence at the place of occurrence categorically. We have noted that both the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem (PW-2), in a very natural and forthright manner, narrated the occurrence and gave each and every detail of the same. Furthermore, in the incident in issue, the weapon had been used from close proximity and, thus, it would not have been difficult for the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem (PW-

2)to identify the present appellant, who was already known to them . We have scrutinized the evidence as given by the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem (PW-2) 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 Ahmed Saeed (PW-1) and Tahir Raheem (PW-2) were motivated by any enmity to depose against the appellant. As mentioned above, Shakeel Ahmad (deceased) was the brother of Ahmed Saeed and the paternal cousin of Tahir Raheem (PW-2) and no reason existed prior to the occurrence which could have interested Ahmed Saeed (PW-1) and Tahir Raheem (PW-2) to get the appellant involved in this occurrence falsely and let off the real accused. Both the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem (PW-2) were subjected to lengthy cross-examination but the defence failed to

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make cracks in their deposition and the genuineness of their statements has been proved. Moreover, during the cross-examination, the sequence of the occurrence was brought on record and both the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem (PW-2) remained consistent. Hence, in view of the above facts, the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem (PW-2), by no stretch of imagination, can be declared as not being present at the place of occurrence. The presence of the witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem (PW-2) at the place of occurrence, at the time of occurrence, stands proved beyond a shadow of doubt. Moreover, 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 manifestation because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of “Irshad Ahmad and others v. The State and others” (PLD 1996 SC 138). Mere relationship of the prosecution witnesses with the deceased and inter-se is not sufficient to discredit their testimony. In this regard, reference is made to the judgment in the case titled as Ijaz Ahmad v. The State (2009 SCMR 99) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

"In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relation-ship with the deceased, would not let go the real culprit or substitute an innocent person for him."

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Reference is made to the judgment in the case titled as Ghulam Murtaza v. The State (2021 S C M R 149) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“Although the deceased-Mst. Saima Bibi is the daughter-in-law of the eye- witness Mst. Rukhsana (PW.7) but it has been settled by this Court that mere relationship of a witness with the victim would not discard her/his evidence if it is otherwise confidence inspiring and trustworthy.”

15.We have also appreciated the fact that the occurrence in this case took place at about Ishawela on 15.04.2014 and was reported by the complainant namely Ahmed Saeed (PW-1) to the police with promptitude. Ahmed Saeed (PW-1) submitted his written application (Exh.PA) to Muhammad Aslam, SI (PW-9) at the Police Station on the same night. On the basis of the written application (Exh.PA) of the complainant namely Ahmed Saeed (PW-1), the formal F.I.R. (Exh.PJ) was registered at 12.05 a.m (night) by Muhammad Aslam, SI (PW-9) at the Police Station. It was explained by the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem (PW-2) that initially they had taken the deceased to the hospital and from the hospital Ahmed Saeed (PW-1) proceeded to the Police Station to get the F.I.R recorded. During the course of cross-examination Tahir Raheem (PW-2) explained that the Police Station was at a distance of as much as 25 kilometres from the place of occurrence. Tahir Raheem (PW-2) during cross-examination stated as under:- “Police Station is situated at distance of 24/25 km from place of occurrence. ” The claim of the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem(PW-2) that they had taken the dead body of the deceased to the THQ hospital Chishtian before the registration of the F.I.R is also supported by the statement of Dr. Ijaz Kashif, (PW-8) who stated that the dead body of the

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deceased was received at the hospital on 15.04.2014 at 9.45 pm, the same time as was stated by the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem(PW-2).Thus, it is apparent that the written application (Exh.PA) of the complainant namely Ahmed Saeed (PW-1), was submitted with noteworthy swiftness, especially when Ahmed Saeed (PW-1), the complainant of the case, had suffered the trauma of the death of his brother at the hands of the appellant. Ahmed Saeed (PW-1), not only named the appellant, but also mentioned each and every minor as well as material fact of the incident in his written application (Exh. PA), which of course excludes the possibility of deliberation or consultation regarding false implication of the appellant in the instant case. The salient features of the occurrence have been elaborately explained in the written application (Exh. PA). The promptitude in reporting the matter to the police also corroborates the case of the prosecution as against the appellant. This promptitude in reporting the matter to the police establishes the presence of the witnesses at the place of occurrence, at the time of occurrence and supports their narrative. In this regard, reference is made to the judgment in the case titled as “Muhammad Waris v. The State” (2008 SCMR

784)wherein the august Supreme Court of Pakistan was pleased to observe as under:--

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

Reliance is also placed on the case of MUHAMMAD ARSHAD Versus The State (2020 S C M R 2025) wherein it has been held as under:- “The crime report was lodged with promptitude, although the inter-se distance between the place of occurrence and the police station is 10-KM. The facts and figures narrated above, rules out any possibility of deliberation and consultation. Further that there is only single accused

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nominated in the crime report which shows the fairness of the prosecution which normally is against the prevalent custom in our society.”

Reliance is also placed on the case of Noor Sultan and others Versus The State (2021 S C M R 176) wherein it has been held as under:- “The instant occurrence has taken place on 28.02.2020 at 6.15 p.m. while the matter was reported to the police within 2.15 hours whereas inter-se distance between the place of occurrence and police station is 16 kilometers. Promptness in reporting the matter to the police reflect that there is no chance of any consultation or deliberation at the part of prosecution.”

Reliance is also placed on the case of “Shaheen Ijaz Alias Babu Versus The State” (2021 S C M R 500) wherein it has been held as under:- “Prompt recourse to law straight at the police station excludes every possibility of deliberation or consultation.”’

Reference is also made to the judgment in the case titled as “Muhammad Aslam v. The State” (2012 SCMR 593) wherein the august Supreme Court of Pakistan was pleased to observe as under:--

“F.I.R. in the present case was recorded with a promptitude and in such circumstances prosecution has been able to prove the case against the appellant beyond any shadow of doubt.”

During the course of the trial it was proved that the written application (Exh.PA) of Ahmed Saeed (PW-1), upon the basis of which the formal F.I.R (Exh.PJ) was registered, was a genuine document and was made spontaneously, naturally and contained the true facts, devoid of any manipulation.

Additionally, we have also noted that at the time of the preparation of the inquest report (Exh.PG) the blood of the deceased was found to be in a fluid condition, clearly establishing the fact that the said inquest report (Exh.PG) was prepared with promptitude, which inquest report also carried all the details of the occurrence as given by the prosecution witnesses namely Ahmed Saeed (PW-1) and Muhammad Fayaz (PW-2) . We have also noted that according to

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column No.8 of the inquest report (Exh.PG), at the time of preparation of the same, the eyes and mouth of the deceased were also closed and had the deceased met his death in absence of the witnesses, then his eyes and mouth would not have been found closed. It is correct that it is a tradition in Pakistan that after the death, people immediately close the eyes and mouth of the deceased. Thus, the closed eyes and mouth of the deceased at the time of the preparation of the inquest report, further proves the prosecution's version regarding the presence of the witnesses at the place and time of occurrence. We have also noted that the post mortem examination of the dead body of the deceased namely Shakeel Ahmed son of Abdul Wahid was conducted with promptitude at night time and no untoward delay was made.

16.The medical evidence produced by the prosecution in the case, proves that the deceased namely Shakeel Ahmed had received the fatal injury on the vital part of his body and he succumbed to the said injury inflicted upon him by the appellant. The medical evidence fully supports the ocular account.

According to Dr. Ijaz Kashif (PW-8), who conducted the post mortem examination of the dead body of the deceased namely Shakeel Ahmed son of Abdul Wahid, he observed a circular lacerated wound, measuring 0.8 cm x0.8cm with inverted margins, present posteriorly on the upper border of the left hip and on exploration observed that the underneath muscles were damaged, bone was fractured, Peritoneal cavity was ruptured and full of blood because of rupture of the femoral vessels. Dr. Ijaz Kashif (PW-8) also opined that the deceased died due to the fact that he had suffered massive blood loss, hypovolemic shock, cardio pulmonary arrest due to the injury received by him at the hands of the appellant , which injury, according to Dr. Ijaz Kashif (PW-

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8), had been caused by a firearm weapon and which injury was sufficient in ordinary course of life to cause death. The appellant has been saddled with the responsibility of causing the said fatal injury to the deceased namely Shakeel Ahmad. In this manner the ocular account is fully verified by the medical evidence available on record. 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 Shakeel Ahmad (deceased) .

17.We have also noted that the motive of the occurrence as mentioned by the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem(PW-2) was admitted by the appellant during the course of cross- examination. The prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem(PW-2) stated that on 12.04.2014 a quarrel had taken place between the appellant and the deceased in which both were injured and due to the said fact, the appellant committed the murder of the deceased on 15.04.2014. The appellant did not challenge the said motive of the occurrence as stated by the prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem(PW-2) rather admitted that indeed a quarrel had taken place on 12.04.2014 and also claimed that he had been injured in the same. The appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif produced attested copy of the Medico Legal Examination Certificate of his co-accused and father namely Muhammad Arif (since acquitted) dated 12-04-2014 as Exh-DB, attested copy of his Medico Legal Examination Certificate dated 12-04-2014 as Exh-DC, attested copy of Rapt No.32 dated 12-04-2014 got recorded by Shakeel Ahmed (deceased) as Exh- DD and the attested copy of the Medico Legal Examination Certificate of

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deceased Shakeel Ahmed dated 12-04-2014 as Exh-DE, proving that their had indeed been a quarrel between the appellant and the deceased . So, this leads us to the conclusion that the prosecution successfully proved the motive as alleged.

18.The learned counsel for the appellant has also argued that the learned trial court had wrongly rejected the plea of alibi of the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif. The word 'alibi’ is a Latin expression which means and implies in common acceptation 'elsewhere’. It is a defence based on the physical impossibility of participation in a crime by an accused by placing the latter in a location other than the scene of the crime when an offence was committed. We must bear in mind that an alibi is not an exception (special or general) envisaged in the Pakistan Penal Code, 1860 or any other law. It is only a rule of evidence recognized in Article 24 of the Qanun-e-Shahadat 1984 that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:

“(a) The question is, whether A committed a crime at Peshawar on a certain day.

The fact that, on that day, A was at Lahore is relevant.

The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant”.

It is a basic law that in a criminal case, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases needs to be considered only when the burden has been discharged by the prosecution

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satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place. The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. On assumption of the factum of the evidence being otherwise truthful, there appears to be some difficulty, however, in the matter of acceptance of submission of the learned counsel for the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif. When the presence of appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi.

When a plea of alibi is taken by the accused, the burden is upon him to establish the same by positive evidence after onus, as regards presence on the spot, is established by the prosecution. According to the learned counsel for the appellant, the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif had gone to the BV hospital Bahawalpur along with his injured father namely Muhammad Arif (since

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acquitted) in order to take care of him when the occurrence took place back in the village. We have noted that the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif admitted that he himself was never referred to the BV hospital Bahawalpur rather he was not even admitted in the THQ hospital Chishtian on 12.04.2014. We have also noticed that the appellant did not produce any documentary evidence to support the claim that on the day of occurrence he was present in the city of Bahawalpur taking care of his father. Furthermore, no independent ,relevant and admissible evidence was produced to establish that the appellant had been present in the city of Bahawalpur when the occurrence took place back in Chak 110-F, Chishtian. Not even a single witness was got examined by the appellant in his defence to prove that on the day of occurrence he was present at Bahawalpur. Not a single document was produced by the appellant to prove his presence at Bahawalpur with his ailing father. Not even Call Data Record of the mobile phone device under the use of the appellant was produced so as to prove the plea of alibi taken by the appellant. In absence of any evidence available on record in support of the alleged plea of alibi taken by the appellant we cannot consider the same. Thus it is concluded that the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif failed miserably to prove his plea of alibi. The august Supreme Court of Pakistan in the case of Muhammad Hanif vs. The State (2000 S C M R 1805) has held as under:-

“The learned Judge of the High Court has not given any cogent reason and ground for believing the plea of the alibi raised by Muhammad Hafeez considering that the accused raising plea of alibi has to discharge the burden by producing satisfactory, reliable and authenticated evidence that his presence at the place of incident at the relevant time was not possible because of his presence at the relevant time at another place. Reference

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may be made to Ameenullah v. State (PLD 1976 SC 629), Muhammad Ayub v. State (PLD 1964 Peshawar 288 (F.B), and Azhar Hussain v. State (1983 SCMR 978). Mere production of the attendance register, which was not properly maintained and unaccompanied with a certificate of any responsible officer of the department. could not be termed to be reliable, satisfactory and authenticated evidence to believe the plea of alibi of the acquitted accused”.

19.So far as the contention raised by the learned counsel for the appellant that the learned trial court while disbelieving the same evidence has acquitted Muhammad Sufiyan alias Sufiyani, Muhammad Arif and Muhammad Irshad, the co-accused of the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif and the conviction awarded to the appellant on the basis of same evidence is not justified, is concerned, we have observed that the learned trial court has rightly acquitted the said co- accused of the appellant. The prosecution witnesses namely Ahmed Saeed (PW-1) and Tahir Raheem(PW-2) did not assign any role to Muhammad Sufiyan alias Sufiyani, Muhammad Arif and Muhammad Irshad, the co- accused of the appellant, all since acquitted, of causing any injury on the person of the deceased namely Shakeel Ahmad. During the investigation of the case, nothing was recovered from the possession of the said Muhammad Sufiyan alias Sufiyani, Muhammad Arif and Muhammad Irshad, the co- accused of the appellant, all since acquitted. Moreover, we, keeping in view the prevailing social trend that innocent people of the family or friends of the main culprit are implicated falsely to incapacitate them to pursue the case of the actual culprit, are of the opinion that Muhammad Sufiyan alias Sufiyani, Muhammad Arif and Muhammad Irshad (all since acquitted), the co-accused of the appellant, had a case distinguishable from the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif.

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20.Regarding the recovery of the pistol from the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif, the same cannot be relied upon as the pistol which had been used by the appellant during the occurrence, though taken into possession by the Investigating Officer of the case, however, was never produced before the learned trial court nor exhibited during the statements of the prosecution witnesses or otherwise. Furthermore, the recovery of pistol from the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif 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. 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.”

Additionally, Muhammad Aslam, SI (PW-9) , the Investigating Officer of the case , admitted during the cross-examination that he had raided the house of the appellant on 16.04.2014 during the course of investigation , however, got recovered the pistol from the same house on 29.05.2014. Muhammad Aslam, SI (PW-9) , the Investigating Officer of the case , during cross-examination stated as under:-

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“It is correct that on the same day I conducted raid upon the respective houses of accused persons however the house of accused persons Muhammad Sufyan, Muhammad Shahbaz, Muhammad Irshad and

Muhammad Iqbal is the same.”

In this manner when Muhammad Aslam, SI (PW-9) , the Investigating Officer of the case , had already raided the house of the appellant on 16.04.2014 then the recovery of the pistol from the same house on 29.05.2014 does raise a doubt regarding the genuineness of the same. It is apparent that Muhammad Aslam, SI (PW-9) , the Investigating Officer of the case , in his enthusiasm to further prove the prosecution case, tried to prove that he had taken into possession the pistol from the house of the appellant on 29.05.2014, the same house which he had already raided on 16.04.2014, however failed to do so.

Therefore, the recovery of the pistol 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.

21.We have disbelieved the evidence of prosecution qua the recovery of the pistol in this case. However, if the evidence of recovery of the pistol is excluded from consideration, even then there is sufficient incriminating evidence available on the record against the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif 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 Ahmed Saeed (PW-1) and Tahir Raheem (PW-2). 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

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ocular account of the prosecution as given by the abovementioned eye- witnesses is fully supported by the medical evidence furnished by Dr. Ijaz Kashif (PW-8), therefore, we hold that the prosecution has proved its case against the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif 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 Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif. 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."

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 Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif, 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. We have

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already disbelieved the evidence of recovery of the pistol from the possession of the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif for the reasons mentioned in Para No.17 of this judgment. We have also noted that the appellant was of young age at the time of occurrence and impressionable. Just two days before this occurrence, the father of the appellant had been beaten by the deceased necessitating the admission of the father of the appellant in the hospital and the appellant must have been brooding over the said incident, depriving him of his faculty of rational consideration of the consequences of his acts which he committed on the day of occurrence. We have also taken into consideration the fact that despite the appellant being armed with a pistol, he did not proceed to cause any other injury to the deceased and left the place of occurrence when the deceased was still alive without acting further in any manner to ensure the death of the deceased. All these circumstances, in our view, make the death sentence awarded to the appellant quite castigatory. In this regard the reliance is placed on the case of Fayyaz Alias Fiazi Versus The State (2017 S C M R 2024) wherein the august Supreme Court of Pakistan has held as under:- “However, we hold that it is not a case of capital punishment because only a single fire-shot was attributed to the appellant and there was no allegation of repetition of firing against him.”

Reliance is also placed on the case of Rehmat Khan and another Vs. The State and others ( 2017 S C M R 2034) wherein the august Supreme Court of Pakistan has held as under:-

“In appeal, the learned Division Bench of the Lahore High Court after taking into consideration the mitigating circumstances of the case i.e. single

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fire shot attributed to the petitioner and the alleged recovery of pistol being inconsequential rightly converted his death sentence to life imprisonment.”

Reliance is also placed on the case of Subedar (retd.) Abdul Majeed and others Vs. Mulazim Hussain Shah and another (2010 SCMR 641) wherein the august Supreme Court of Pakistan has held as under:- “19. No son under the impulse that his mother was abused, and one can imagine that what abuses might have been used by a male against a female that is mother of the appellant and appellant under such impulse could not constrain himself followed by his act of single fire shot at the deceased will be a case which would not be fit for awarding normal punishment of death. Further to simplify we hold that in this case the person aggrieved and annoyed because his mother was abused must by under constant stress to each lesson to the person abusing his mother and under such circumstances has committed the offence. He, in circumstances has rightly been awarded life imprisonment by the High Court.”

Reliance is also placed on the case of MUHAMMAD JAVED and another Vs. The State and others (2011 S C M R 1462) wherein the august Supreme Court of Pakistan has held as under:-

“The only question before us is whether there were mitigating circumstances justifying the learned High Court to commute the sentences of the accused-appellants from death of life imprisonment. The phrase 'mitigating circumstances' has been interpreted in the case of Muhammad Sharif v. Muhammad Javed alias Jeeda Tedi (PLD 1976 SC 452), where their lordships have held that extreme youth, sudden provocation; influence of an elder and question of family honour etc. are covered by the phrase of extenuating and mitigating circumstances. If a case falls within any of the aforesaid circumstances, a Court, in law, is justified to award lesser penalty.”

Reliance is also placed on the case of MUHAMMAD RIAZ and another Vs.

The State and others (2017 S C M R 1871) wherein the august Supreme Court of Pakistan has held as under:-

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“Firstly, we will take up Criminal Appeal No. 151-L of 2009. Muhammad Ishfaq, respondent No.2 was attributed single fire shot on the person of Muhammad Iqbal (deceased) and there was no allegation of repetition of firing. The learned Division Bench of the Lahore High Court in para-8 of the impugned judgment has given valid reasons for reducing the death sentence awarded to Muhammad Ishfaq, respondent No.2 and converting the same into life imprisonment. Upon our own independent assessment of the material available on the record, we do not find any reason for interference in the discretion exercised by the learned Division Bench of Lahore High Court in their appellate jurisdiction. Therefore, there is no merit in this appeal which is dismissed.”

We are also fortified in our view in this regard by the cases of ZAFAR IQBAL alias ZAFARULLAH KHAN Vs. The State (2017 S C M R 1721), MAZHAR ABBAS alias BADDI Vs. The State (2017 S C M R 1884), IMTIAZ alias TAJI and another Vs. The State and others (2020 S C M R 287), SHAUKAT ABBAS alias KAKA Vs. The State (2006 S C M R 1158), LATIF ULLAH Vs.

The State (2007 S C M R 994), SARDAR MUHAMMAD and another Vs.

ATHAR ZAHOOR and others (2017 S C M R 1668) and SARWAR and another Vs. The State and others (2020 S C M R 1250).

23.In the light of above discussion, the conviction of the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif, as awarded by the learned trial Court through the abovementioned judgment, is maintained but the sentence of death awarded to the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif under section 302(b) P.P.C. is altered to imprisonment for life . The compensation awarded by the learned trial Court under section 544-A of Cr.P.C. and sentence in default thereof are maintained and upheld. The benefit provided under section 382-B of the Code of Criminal

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Procedure, 1898, is also extended to the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif.

Consequently, with the above said modification in the sentence awarded to the appellant namely Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif under section 302 (b) PPC, Criminal Appeal No.534 of 2019, is hereby dismissed.

24.Murder Reference No. 19 of 2019 is answered in Negative and the sentence of death awarded to Muhammad Shahbaz alias Amir Shahbaz alias Shahbazi son of Muhammad Arif, is Not Confirmed.

(SAFDAR SALEEM SHAHID) (SADIQ MAHMUD KHURRAM)

JUDGE JUDGE

Approved for reporting

Judge Judge Raheel/*