Muhammad Ishaque (Appellant) VS The State (Respondent)

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IN oTfilB IilIGIT\ eOURt OF SINDH,

CIRCUIT COURT, HYDERABAD.

Cr.Appeal.No.D- 22 of 2Ol3 Cr.Jail.Appeal.No.D- 23 of 2013 Confirmation case No. 05 of 2Ol3

Present:-

Mr. Justice Najmatullah Phulpoto.

Mr. .Justice Mohammad Karim Khbn Agha.

Date of hearing: 17 .o5.20r7 & 19.05.20 17. Date of judgment: 30.05.2017.

Appellant Muhammad Ishaque s/o Through Syed Tarique Ahmed Sain Bux by caste Panhwar : Shah, Advocate.

Respondent the State : Through Mr.Syed Mecrtr I Shah, Addl: P.G.

Complainant Muhamrnad Ameen Through Mr. Muhammerl { Jameel Ahmed, Advocate

JUDGMENT

MOHAMMAD KARIM KHAN AGHA J.- Appellant Muhamma<l Ishaque was tried by learned Sessions Jgdge, Mirpurkhas in Sessiorrri case No.136 of 2OO2 for offence u/s 302 PPC. By judgment datetl 27.O3.2OL3, (the impugned Judgment) appellant Muhammad Ishaqur: was convicted and sentenced as under:- 1 U ls 3O2 (a) PPC for tl-re Qatl-e-amdandofsentencerl deceasr:tl Ghulam Hycler s/o Muhammad Alam a to death as Qisas, he be hanged by neck till deallr and to pay the compensation of Rs.2, OO,0OO/- to thc L.Rs of cleceased Ghulam Hyder u/s 544-A Cr'P'C ft'r the mental anguish or psychological damage causc'li by l-rim to legal heirs, which shall be recoverable as land revenue arrears and in default he shall undetp'.r' SI for six months.

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2 U/s 3O2 (a) PPC for the Qatl-e-amd of deceaseri N4',r Sahib Khatoon w/o Ghulam Hyder and sentenccrl l, death as Qisas, he be hanged by neck till death arr,l to pay the compensation of Rs.2,OO,O0O/- to thc l. l ": of deceased Mst. Sahib Khatoon u/s 544-A Cr.P.(l l,'r the mental anguish or psychological damage carrsr''l by him to legal heirs, which shall be recoverable rr-' land revenue aJrears and in default he shall undct1", S[ for six months.

3 U/s 302 (a) PPC for the Qatl-e-amd of deccaic,l Muhammad Alam s/o Ghulam Hyder il1d ssnfsnccrl to death as Qisas, he be hanged by neck till dcrrllr and to pay the compensation of Rs.2,0O,0OO/- trr llr': L.Rs of deceased Muhammad Alam u/s 544-4 Cr. I).(' for the mental emguish or psychological dattti ri'' caused by him to legal heirs, which shall l"' recoverable as land revenue arrea-rs and in defar-tll 1". shall undergo SI for six months.

4 U/s 3O2 (a) PPC for the Qatl-e-amd of deccir::'''l Muhammad Azam s/o Ghulam Hyder ?rld sentetlr:..'l to death as Qisas, he be hanged by neck till clcrrll' and to pay the compensation of Rs.2,00,000/- to tlr': L.Rs of deceased Muhammad Azam u/s 54zl ;\ Cr.P.C for the mental anguish or psychologi'':rl damage caused by him to legal heirs, which shall l" I recoverable as land revenue a-rrears and in defattlt l,'' shall undergo SI for six months.

5 U/s 302 (a) PPC for the Qatl-e-amd of decca:r'''l Muhammad Nazim s/o Ghulam Hyder irrr'l sentenced to death as Qisas, he be hanged by nc'.|': till death and to pay the compensatior-r ll Rs.2,O0,0OOl- to the L.Rs of deceased Muhaltrtrill Nazim u/s 544-A Cr.P.C for the mental anguislr "r psychological damage caused by him to legal heir''' which shall be recoverable as land revenue al'rctrr '-r and in default he shall undergo SI for six montlls.

6 U/s 338 (c) PPC for Isqat-e-Janeen of an unbtrrrr child in the womb of deceased Mst. Sahib Khatoon ,< and sentenced to pay ll2gtn of Diyat and nlrr,' undergo RI for seven years. Benefit of UTP periotl i:r extended to the accused as per section 382(b) Cr.l't'

2.Brief facts of the prosecution case as disclosed in the FIR alr' that on 23.O9.2OO2 at about 0215 hours one Muhammad Ameeu s/o rl

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Shafi Muhammad by caste Panhwar r/o viltage Shafi Muhaurrr,,,l Panhwar Taluka Mirpurkhas lodged FIR with PS Taluka Mirpurl<tlr:,. alleging therein that he is Zamindar. On 22.O9.2OO2 he, his conr:irr namely Azizullah and Yameen were sleeping in the cattle perr. rrr1 23.O9.2OO2 at about Oi3O hours they heard the sound of firirr11. whereupon they imrnediately rushed towards the place of firing arll saw that the firing was going on in the house of his flraternal r-rrrr-lr. Ghulam Hyder Panhwar. They entered into the house and saw tllrl Muhammad Ishaque s/o Sain Bux, who was having dispute oll {lrr. landed property with Ghulam Hyder Panhwar, in order to usurl.i llr, agricultural land had fired upon Ghulam Hyder s/o Muhamtrr:r, I Aslam Panhwar aged about 69 l7O years, Muhammad Azam ;'i,' Ghulam Hyder Palhwar aged about 516 years, Muhammad Na::u,' s/o Ghulam Hyder Panhwar aged about 3/4 years and they had l>c<.r, killed and blood was oozing from them. While Mst. Sahib l(hat,,,,r, w/o Ghulam Hyder Panhwar aged about 3O years and Muhan)lu;r,l Alam s/o Ghulam Hyder Panhwar aged about 8/9 years were inirrrr.rl and due to fire arm injuries blood was oozing from them. On seein;1 them accused Muhammad Ishaque fled away. Thereafter cornpla.itr;rrrt and Yameen immediately brought the injured Mst. Sahib Khatoon ;rrrrl Muhammad Alam to civil hospital, for medical treatment, r.vlrilr' Azizlullah was left over the dead bodies of Ghulam Hyder, Muhanrrurrl Azatn and Muhammad Nazim. Thcreafter, complainant came at polir:r station ald reported the incident to SIP/SHO Khuda Bux Panhu,rr who recorded the FIR of the complainant.

3.The investigation of the crime was conducted by SIO Ghulam Ali Chandio who prepared inquest reports in presence of mashirs. Mcrrr,, of inspection of dead bodies, memo of injuries of injured Mst. Salril, Khatoon and Muhammad Alam and gave letters to medical offi((:r Civil Hospital, Mirpurkhas for examination of the deceased namel.1, t Ghulam Hyder, Muhammad, Azatn and Muharnmad Nazim ancl lor' medical treatment of injured Mst. Sahib Khatoon and Muhamrtr:r,l Alam. Thereafter, on 23.O}.2OO2 at about 063O hours arl-estcrl accused Muhammad Ishaque in presence of mashirs namely PC Slralr Nawaz and PC Bhojraj and recovered crime weapon viz. one'["T pist.l

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of 30 bore loaded with three live bullets and one ernpty, liss115(- rrl pistol, two empty magazine of 30 bore and 22live bullets. Thereafto .

visited the place of vardat in presence of mashirs Ildir Zalarullah ;.rrrrl Ghulam Murtaza on the same date at about OB00 hours rttt,l recovered 13 empties of TT Pistol, 08 heads of fired bullets, blrx"l t, stained beds and sealed the same. On 23.09.2002 he proclucerl tlt,- accused before the learned Judicial Magistrate for recordinpl tlr'- confessional statement of accused. SIO sent the blood stained clothc:r of deceased persons ald beds ald blood stained earth to the chemir-:'l examiner sO aISo sent crime weapon i.e. 3O bore pistol No.B-70I'i, orr'' 3O bore crime empty, one magazine, O3 live bullets of 3O bore, 22. ln"- bullets of 3O bore and 13 empties of 30 bore, 07 crime bullets of':"tt bore, one 3O bore mutilated crime bullet a1d 05 live bullets of 3O lror,' to Ballistic Expert for F.S,L. report. During the course of investigatiotr SIO also recorded dying declaration of injured Mst. Sahib I(hatoorr who was pregnant in presence of Doctor. Both injured i.e. Mst. f-lahil' Khatoon and Muhammad Alam expired at L.M.C.H' Hyderabacl nrt'l I.O. collected such proof. After completing investigation accl"lsecl ri"r:: challaned before the Court of learned Judicial Magistrate and F.(l.Na II, Mirpurkhas.

4.The charge against the accused was framed at 8x.2, 1s lvhf.lr the accused pteaded not guilty and claimed to be tried.

5.In order to substantiate its case, the prosecution examined I I' P.Ws. and thereafter, the prosecution side was closed at Ex.25.

6.The statement of the accused was recorded uls 342 Cr'P.o.al Ex.2B, wherein the accused denied the prosecution allegations atrtl claimed his false implication in this'"u."". The accused examirrcr.l himself on oath at Ex.29, wherein he has stated that deceaserl Ghulam Hyder was his uncle as well as father-in-law' He used l" reside with his father-in-law in the same house in the yeaur 2OO2. ll' was posted in Intelligence Bureau as PC and after performing ltir' duties he came to his house on23.09.20O2 at about 1O.3O p.rn. II' entered in the house and saw that police party of PS Taluka ra""' already available at the house and they captured him. They took hirrr

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l til to the police station and thereafter he came to know about thc rnru-rl, r of his father-in-law Ghularn Hyder, 'and his cousirrs Muhallrrr,,,l Alam, Azatn and third naine he did not remernber. FIe was kept at l': I Taluka and aJter sometime he was taken to PS City. The police of I': I Cit5r issued threats to him and were compelling him to confess to llrr murders. They produced him in the Court; name he did flot knovv. lor confession, where he confessed the commission of the murdcrs (lllc 1,, compulsion. He had no enmity of whatsoever with Ghulam Hyclct ,rrll his sons. Arneen (the complainant) was also son-in-law of (ihr-rlnrrr Hyder. Ameen is his relative as well as relative of Ghulam ilt,rll deceased. There was disptrte between Ameen a-nd Ghulam Hyder. ,,,..', house prior to the murder. The accused claimed innocence and sl.rrlr:rl that he had not committed any murder. However, accused did not r:rrll defense witnesses in support of his case.

7.Learned Sessions Judge after hearing the learned counsel lor the parties and examining the evidence available on record q6p1zir.;[nr I and sentenced the appellant as stated above through the impugrrr:, I judgment and made reference for confirrnation of death senl.enc. Hence this appeal.

8.Learned trial court in the impugned judgment has alre',,Ir. discussed the evidence in detail and there is no need to repeat llr,' same here, so as to avoid duplication and unnecessary repetition

9.Mr.Syed Tarique Ahmed Shah, learned ad.rocate for llr,' appellant has contended that the prosecution has failed to provn il:. gass agajnst the appellant for the following reasons; that the charllr i:, defective in that it has charged the appellant with 3 murders. '.' attempts to murd.er ,rd *ithout menlion of S.338(c) PPC burt thr' appellant has been convicted for 5 murders and under S.338(c) arrrl due to such defects in the charge the case rray be remanded bar.:l< [r,r

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retrial; that there has been,an improvement in the evidence of 1lr,' PW's at trial as against their'earlier S.161 arrd 164 Cr.PC statemerrl:,. that the oculal evidence contradicts the medical eviclence in particr-rl:u the deceased Mohammed Alam and Mr.s l(hatoon's injuries were rr,i all consistent with bullet wounds and that as per the del'ense verrii')!r t)'

the deceased persons were all murdered by the complainant and tlr(. '.1 other eyewitness (PW Azizullah arrd. Mohammeo Yameen) who lrrr,l ,' property dispute with the deceased Ghulam Hyder; that I lre complainant and the 2 other aforesaid eyewitnesses *"." sll6ytr-;c witnesses since they had th'eir own homes yet for inexplicable reas-ons they were all on that particular night staying at the cattle pond \vlr"rr' they had conspired to murder Ghulam Hyder; that their stor-y rlrrr':: not appeal to reason as according to their own evidenc€ they wr-r,. awaken by about 15 gun shots and were staying at a 6i"161.s ,rf about one acre from Ghulam Hyder's house which was the scenc ,rf the murder so how was it possible for them to reach the scene allrl 1,.. eye witnesses to the murder? As such it was contended that tl r.r. were no eye witnesses to the incident and the complainant and 1l-rc'.1 other eye witnesses were the real murderers and as already showrr lr,' the medical evidence the murders were caused by more than-l ,rnr' person and that the complainant and the other 2 eye witnesses harl the means, motive and opportunity toi carry out the murders; tl.rat. there are mqjor contractions in the evidence of the PW's for inst.;lrr, ,' PW Abdul Jabbar puts the time of the,incident in doubt and thc I)w IO Ghulam Ali went to arrest the appellant by motor b'ke wlr.rr

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according to the other members of the arrest party they went_ irlr private taxi; that there waS a delay in sending the empties for rlrc ballistic report of about one monthl which delay has pe1 1.11:r'rr explained; that the appellants confessional statement \ rl:. inadmissible as it was not in accordanee with lsq,; namely aftcr tl rr. confession was recorded the appellant was handed back to thc sarrr, police officer for judicial custody who had brought him for recorr]irrr: the confession which was completely illegal; that the dying declar-atiorr of Mrs Khatoom was fabricated as the PW Dr. Jillani who was prescnl when it was atlegedly made to the Io clid not mention it in hr:; I evidence; that the PW's are all related to either the deceased or ear-:lr other and as such cannot be safely relied upon especially as thcr c were many other persons iwho had gathered at the house of tlrr incidentyet none of them had given evirlence or been used as mushirr, and thus for all the above reasons the.appellant was entitled to l:lrc benefit of the doubt and may be acquitted. ;

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10.In support of his contentions, learned counsel for the appclrrrrrr:r relied upon the cases of Mubeen v state (2006 yLR 3s9), Mumtnz AIi v state (2000 PCT.LJ 367) Idrees Ktani v state (2oo4 MLD f ir,,) @) Akhtar AIt v state (2008 scMR 6 (d)) Kamal Hussain v stare (2OO4 PCrIJ 813) Arshad Khan V State (2OtZ SCMR 564), Sarp,rr Btbi v Munlr Ahmed (zol7 scMR 3aa) Halii Ghulanr Hussairr v state(PlD 1976 Kt 1160), Haji said Muhammed v Munawar ( ri.r( ) I scMR 1842) Farman BI v Ghulam Farid (tgg4 scMR 1852), Mataro v state (PI^J 1997 cr.c (kar) 2LTl, Ati Akbar v state (1988 lltff) r,(r{,} and Khalid V State (1993 p.Cr.LI 606)

11.On the other hand, Syed Meeral Shah, learned D.p.G. Itrilr, supported the impugned judgment and contended that if thele u,cr,. any defects in the charge they could 6e cured through 5.232 Cr.t'r. and s'537 (a) cr'PC; that there was no material improvement i, tlrr- s.164 statements of the eyewitnesses and their evidence at trial; thtrr the medical evidence was not contrad.ictory to the ocular- eviclelrr.c; that the complainant and eye witnesses were not chance witr)cr*:,.:, and were all present that 'day at the cattle pond and w€rc c1,r witnesses to the incident, FIR was rohgea promptly and who hnrr provided the motive for the crime; namely that the appellant hatr r, dispute over agricultural property *ith Cfrutam Hyder and h:r,l murdered him and his family in order to obtain the agricultrrr,,l property; that there were no mqior contradictions in the proseculi,rr evidence; that the delay in sending the empties for ballistic report rti*, not relevant especially as it'was not put cluring cross exarnirlari.rr. that the confessional statement had been macle in accordance wirlr law and was legally admissibre and could be relied up.n and the sanrc was the position with the dying declaration ancl as such the appcarr should be dismissed as there was no doubt that the appellant harr committed the 5 murders and the prosecution had proved its cal* t through evidence to the required criminal stamdard. In support of his contentions he placed leliance on F'aquirullah v Khalil uz zamarr (1999 SCMR 2203]I, Mumtaz,V State pAn SCMR 556), Nazlr Ahmcrt v state (2009 scMR 523) anct Dadullah,v state (2o15 scMR 8s6)

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12.Learnecl counscl for the complainant adopted the argumctrl', "l learned APG and additionally added ttrat where there was 1le fi1 r':rrtrr injuries on Mrs Khatoon such injuries had beetr causecl when slrc {, ll down and that with Alarn since he' was a young boy his lr,,irir structure accounted for the appearance of a difference injurl rvhr, Ir had in fact been caused by a fire arm; 'fhat the appellanr" rl "ot',1'""'1i.r, statement which was voluntary not otrly proved his guill brrt lrt:, motive for the murders; that the prosecution had fully proved j[.';,,r'.' through reliable evidence; that the appeals may be dismissed ali(l 1lr.'r since there were no mitigating circumstances the death s€otcnr:c tti,,', be confirmed. In support of his contentions learned counsel ltltr , , i reliance on the following cases Muhqmmed Ehean V State (il()( r', SCMR 1857), Akthar Ali and others V fne State (2008 SCI\4T.] r'). Idress Kiani and others V The State through Advocate-Gcu<:!:;ri l2OO4 MLD 1763), Irfan V Muhammed Yousaf (2016 SCMR I l'rl|. Takdir Samsuddin Sheikh V State of Gujrat and another (2o I ' SCMR 1869), Khan Muham'mad and others versus The State (',tt) | i SCMR 705), Mumtaz Ali anb another V The State (2000 P Cr. I I

367)Salamat Ali V The State (MLD 2AI7 701), Tariq Iqbal V Sl.a{.' QAfi SCMR 954), Khaltd'.Mahmood V State 12017 SCMR il(rl) Ashique Hussain V The State (2017 SCMR 188), Mohammed Shar:il V State (2006 SCMR 1 170),, Mohammed Aslam V State (2012li( 'Nlr '

593)Inayatullah V State (PLD 2OO7 SC 237)

13.We have considered the arguments of learned counsel, exatnincrl the entire evidence with their able assistance arld considet'erl tlr.' relevant law and authorities cited by them at the bar.

L4. At the outset we would like to rmake it clear ffi6f v7e ]111r,. considered the evidence in a holistic rnanner and considel-ed r':rr ii piece of evid.ence in isolation as well as how it fits in with the errlirr A prosecution case to see if the prosecutidn has been able to prove il:.' case beyond a reasonable doubt through such evidence.

15.We shall consider each argument " in turn as raised by lealrr,', I

ii i,' counsel for the appellant.

Defects in the Char ge. t':

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The Charge reads as under:

..IN THE COURT OF FIRST ADDL:SESSIONS JUDGD'

MIRPURKHAS.

S.C' No. 136 of 2OO2.

The State. . . .i . . Versus. Muhammad Ishaqut:

I2-O7-2003, CHARGE

I, Ghulam Qadir Leghari, First Addl: Sessions Jr-rrlpi' Mirpurkhas do hereby charge You:

Muhammad lshaque ,, s/o Sain Bux Panhwar" tr under:- That on 23.09.2002 at 0130 hours in the housc oi deceased Ghulam Hyder situated in deh Phandro Talrll<'r Mirpurkhas, you accused intentionally made firing rvill' T.T. pistol 3O bore which hit Ghulam Hyder ffid his s'''ttll Muhammad Azam and Muhammad Nazim resulting thcir death. You thus thereby committed Qatli-amd of the alrot" deceased punishable Uls 3O2 PPC within the cognizarr" of this Court.

That on the same date, tlme and placc yr"' accused made lirlng with T.T. pistol wlth lntentlorr l " commlt Qatle-amd or by.that act the death coukl ht' caused and the'firlng shots hit Mst. Sahtb Khatoon trro! Muhammad Alam. You thus thereby committed offrrr" punishable Uls 32a ppC within the cognizance ol llri.' Court.(bold added) And I hereby direct you be tried of the afolc:r:ri'j offences.

This 12tt, day of July,;2003.

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(GHULAM QADIR LEGAHRI)

First Additional Sessions Judge, Mirpurkharr.''

16.According to 5.221 to 225 Cr.PC the charge must statr,:' ;r under:

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" 221. Charge to state offenoe. (l) Every charge undel' llri Code shall state the offence with which the accused is cha-r:g"'l Specillc name of offence sufficient description. (r|) ll the law rvhich creates the offence gives it any specific name. llr'- offence may be described in the chalge by that name only.

How statecl wh&e offencO,ihas no speclfic neme- (:") l1 the law which creates the offenc'e does not give it any spe',ilr' narne, so much of the definition of the offence must be staterl ;r:' "' t't''

to give the accused,;notice of the matter with which hr charged.

(a)The law and section of the law against whlch I i,'" offence is said to have been committed shall be mentiorr.',i in the charge.

What implied !n charge. (5) The fact that the charli*' r'' made is equivalent to a stater,nent that every legal cotrrlili,,rr required by law to constitute the'lpffence charged was fulfillc,l ,rr the particular case. :

Language of charge. (6) The charge shall be written eithcr' in English or" in the language of the Court.

Prevlous convietion when to be set out. (7) If r:lr. accused having been previously convicted of afly offencr', i:r liable, by reason of such previous conviction, to enh:,ltr:,'.1 punishment of a different kind, for a subsequent offence, n11,1 il is intended to prove such previous conviction for the purpo:rr- ,'f affecting the punishment which the Court may tltink ful t,r award for the subsequent offence, the fact, date and place of tl,'' previous conviction shall be qtated in the charge. If rtl lr statement has been omitted, the Court may add it at any lirri, before sentence is passed.

222.PafiTculars as to time, place and person. (l) 'l'lr,' charge sha-ll contain such particulars as to the time and plnr:r' ,,f the alleged offence, and the person (if any) against whom, ot' llrr' thinking (if any) in respect of which, it was committed, ali :,;i a reasonably sufficient ,to give the accused notice of the rn;rll. r with which he is charged.

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(2)When the agcused is charged with criminal 5..61p11 r,l ttr.rst or dishonest ,,rnisappropriation of money, it shall l'r' sufficient to specify the gross sum in respect of which llr, offence is alleged to have been committed, and the r1;rtr"; between which the offence is alleged to have been commiticrl. without specifying pafticular items or exact dates, amd lll charge so framed shall be deemed to be a charge of one offr:rr,,' within the meaning of"section 34i Providcd that thc time included between the first arrrl l:r..1 of such dates shall note exceed one year.

223.When manner of commltting offence must bc stated. When the nature of the case is such that the partit:rllar:. h mentioned in section 221 and'222 do not give thc acr:rr:;.,| sufficient notice of the matter with which he is charged, tlr.' charge shall also contain sr-rch particulars of the lnanrl('r irr which the alleged offence was corhmitted as will be sufficient. firr' the purpose.

224.Words in charge taken in sense of law unrlcr which offence is punishable. In every charge words uscrl irr describing an offence shall be deemed to have been used irr tlrr' l,y

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sense attached to them respectively by the law under .rvlrr, lr such offence is punishable.

225.Effect or errors. No error in stating either the offcrr,.. or the particulars required to be stated in the charge, all<l rro omission to state the offence or those particulars, Slrall Lr. regarded at any stage of the case as material, unless i ir<: accused was in fact misled by such error or omission, nri<l it ). has occasloned a failure of justice.r, (bold added)

77.In essence the object of the charge is to enable to the &ccusert i,, know the case against him with sufficient detail so that he may bc rrr a position to defend the case against'hi*. In this regard refererlce is made to Idress Kiana's case (supra)which held as under at p.176(r "The object of charging accused is to make hirr awar-e, alrrr::r:rt and alert about the allegations and the basis on whiclr {lr,' allegations are leveled against him. It enables the accuscrl t,, know the precise accusation against him whlch hc i:r required to meet before commencement of evidence of llr<: prosecution." (bold added)

18.Likewise in Mumtaz Ali,s case (Supra) at p. 370, which is r,.i out as under:

<r "It is ma:rdatory that charge shall contain all malcrrrl particulars as to tinre, place as, well as specific narne ol llr,- alleged offence, the malner in which the offence was comnrillr', I and the particulars of the accused so as to afford accuscrJ lrr opportunity to explain the matter with which he is chargerJ. ,fhc purpose behind giving such particulars is that the persorr against whom such charge is framed should prepare his ens<: accordingly and may not be misled in preparing hls deferr<-e .

Charge is the very start of trial and it is at this stage tha( rrrr accused comes across the accusation leveled by the prosectrli,,rr against him, as such he will have to keep such material irr lri. mind during the proceedings of the trial. By now it is rvcil settled that if any person is misled in preparing the defenc.. by absence of necessary particulars, as stated above, ,r, there is a serious defect in the charge, retrial is the remerly. The material thing fcir directirrg the retrial is to be secn ,r:r * to whether by framing an improfier charge, quite contral.y ((, the case of prosecution, a prejudice uras caused to t:Ir,, accused or not.', (bold added)

19' In connection with curing any erlors in a charge s.232 aurrl s.357 cr.PC are relevant and are set out berow fbr ease of refererrcc; r./

"5. 232.Itffect of material error. (1) If any Appellatc (.''rtrtt'l, or the High Court for,the Court of Session in the exercisc ol il:r powers of revision or :of its powers undet' Chapter XXVII. r:: 'rl opinion that any Person convicted of an offence uras nrisl"<l in his defence by th6 absence of a charge or by an crror irt the charge, it shall direct a new trial to be had u.p()tt :r charge framed in whatever manner it think fit. (bold arl<lr'' l) v (2) If the Court is of opinion that the facts of the (:i.rr:r rri such that no valid charge could tte preferrecl against tl-Ie ilr:r tt:,r'rl" in respect of the facts proved, it shall quash tl'le conrrit lr|rr S.537 Cr.PC provides as under

"537, Finding or sentence,urhen reversible by reeson of error or omission, in charge or other proceedings. Sub.iccl I'r the provisions hereinbefore contained, no finding, senlctr.r' 'rt order pa.ssed by a Court of competent jurisdiction shrrll lrr' reversed or altered under Chapter XXVII or on appenl .r revision on account:

(a)of any error, omission or irregularity ir r i l" complaint, report by police-officer unde. ss6'[iort | ' :

strmmons, \ rarrallt, charge, proclama.ti()n, 11f i.r ' judgment or other pl'oceedings before or cluring lrj;rl "r in any inquiry or other proceedings rtnder this Cr-rtlr' ' " (bl of any error, omission or irregular-ity in the lttotl' "l a trial. including any misjgrinder of charge, tlnless srr''ir error, ornission or ,, irregularity has in l:'"i occasioned a failure of justice.

Explanation. Iu determining whether any err()t'. omission or irregularity in any proceedings under this Crlrlc has occasioned a failure of justice, the Court shall hr"'c regard to the fact whether the objection could flnd oho"l<l have been raised at an earlier stage in the proceedings "(lr"l'l added)

20.With respect to being convicteci. for an offense for whi<;lr llr, accused has not been chafged 5.236,and 5.237 Cr.PC or"e l'eler;;riri which state as under:

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" 236. Where it is'd.oubtful ultnt offence has been cortrrtitt' ,t If a single act or series of acts is of such a nature thlrl rl r', doubtful which of several offences;the facts which can be llr(,\'Il will constitute, the accused t'nay be charged with l111' rirt'. committed all or any of such offeirces. and any number of ::rt'lr charges may be tried at one; or he may be charged trt llrr' alternative with having comrnittecl'some one of the said offetrc,-s. 'r- l,

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S. 237. When a person, is cltarged uith one offence, he can be conuicted of another. (l) If in the Case mentioned in section 236, the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under,:the provisions of that section, he may be convictedrof the offence which he is shown to have committed, although he was not eharged with it."

.l 2l . In our view the charge contains the time, place and ,the appellant narne in the offenses set out therein. In our view it is clear that the appellant had notice that he was being charged with 3 murders and had adequate chance to defend himself on those aspects of the charge (for which he could be sentenced to death if convicted for any one of those murders). He also had notice that he was bqing charged with 2 attempts toimurder. In our view, similar preparation i would have been needed to be made for a case of attempt to murder' as murder and even otherwise he was fully aware before the trial based on the material which he had received under s.265 @ Cr.PC that he was in fact facing 5 separate murder trials as Mrs Khatoou and Mr. Alarn had succumbed to theirlinjuries and died on the same night and that in effect he had sufficient notice that he was defending a charge of their murders'and hence'he crossed examined on such points accordingly and as such he was neither misled as to. the offenses of murder in respect of Mrs Khatoon and Alam against him and nor did such convictios.r prejudice him or lead to a miscarriage of justice. : :

22.Thus in our view in respect of the 5 murders the appellant has not been misled in his defense and no prejudice has been causecl to him by the charge stating that "he was charged with attempting to murder Mrs Khatoon and Alam" as opposed to murdering them especially as he made no complaint in this respect during the coutrse i :r of the trial and in our view there has been no miscarriage of justi'ce. Thus, the charge against the appellant for committing 5 murders of the named deceased on the date time and place as mentioned in the charge is not defective and the charge,,remains in full force and eifect in this regard and in this respect s.232 Cr.PC is not relevant but rather Sections 225, 537 and 237 Cr.PC are applicable based on .the

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particular facts and circumstances of this case. In this respect reliance is also placecl on lttluhammed Sharifs case (Supra)

23.However we find that the charge is silent in respect of. the offense u/s 338 PPC and as such the ippellant would not have been put on notice that he was defending srlch offence and would not have been put in a position to prepare a defense to such offense and.'as such since this offense was not mentioned in the charge and he might have been misled in not preparing a defense in this regard and he might have been prejudiced.by a conviction u/s 338 PPC we are of the view that he cannot be legally convicted of this offense and thus the appellant stands acquitted for the offense u/s 338 PPC only.

Improvements in Evidence when compared with S.164 statements.

24.We do not find any substance in this submission.The improvements which have been made in the evidence from the S.164 statements in our view are only minor in nature and have not beeu materially altered by the evidence given at trial. In any event it is observed from the evidence that the particular parts of the 3.16rz} statements, word for word, which are under challenge have not been read out in the evidence and noted by the learned trial court in tlre evidence so such attacks on the 5.164 statements seem to,be generalized in nature as opposed to specific. :

Eye witnesses and chance witnesses.

25.In this case there are 3 eye witnesses. It is settled law that an accused can be convicted on the evidence of one eye witness alone provided that such eye witness is found to be reliable, trustworthy and confidence inspiring. In this ri:spect reliance is placed on Muhammad Ehsan v. The state (2006 scMR 1857) where it was helcl at ,l P. 1860 at Para 6 as under:

"6. It is true that there is only ocular'testimony of P.W. 4 Mst. Khertun Bibi corroborated by medical evidence, P.W. 6 Dr. Muhammad Sarfraz Sial. The lact that there is only ocular testimony of one P.W. whiclr is unimpeachable and confidence-inspiring corroborated by meclical evidence wotrld be sufficient to base conviction. It be noted that this Court has time and again held that the rule of corroboration is v

rule of abundant caution and not a mandatory rule to be applied invarlably in each case rather thls ls settled princlple that if the Court is satlsfied about the truthl'ulness of direct evldence, the requiremeht of corroborative evidence would not be of much significance in that, as it may as in the present caae eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by medlcal evldence". (bold added) v 26. Based on the evidence we find that these 3 eye witnesses (the complainant, PW Azizullah, and PW Yatrteen) are reliable, trust worthy and confidence inspiring and thus the appellant can be convicted on a single one of their evidence alone. In this case all 3 eye witnesses corroborate each other as there is no material difference in their evidence. We clo not consider them to be chance witnesses for the following reasons (a) they had given reasonable, believable and corroborated explanations as to why they all happened to be where they were on that night i.e. at the cattle pond which is distinguishable from Sardar Bibi's case (Supra) where the witnesses were unable to adequately explain why there were not at their homes at the times of the incident which was also at night and (b) as a rule if the FIR is

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lodged quickly, as it was in this case bding about 45 minutes after the incident then generally the prospect of"a chance witness is ruled out as there has been insuflicient time to ,fabricate a false case. In,this respect reliance is placed on the case of Sharafat Alt V The State (2016 SCMR P.28) at P.3O which held aS under

"During trial, five police officials had appeared as eye-witnesses. They remained firm on all major particulars of the case i.e. date, time and place of occurrence and despite lengthy cross- examination their credibility could not be shaken. The PWs had no enmity with the appellzr.nt to falsely implicate him in the case. The incident had taken place at 5.3O am whereas the FIR was registered on the same day at 6.OO am i.e. after thirty minutes of the occurrence wherein the appellant was speclfically nominated with a specific role. Such a promptly lodged FIR excludes any chance of false implication." (bolcl addecl)

27.Likewise in the case of Abdul Haq V The State (2015 SCMR 1326l,it was helcl at P. 1332 as under: ,

"Both the appellants have been specifically named in the FIR which was got registered after about 3O minutes of the occurrence. As such this is a case of promptly lodged FIR

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and the same excludes the chance of any dellberatioir or false implication. The eye-witnesses are natural witnesses as they were present at the spot to attencl the Majlis. The eye- witnesses have narrated the story in a natural manner and they remained consistent on a_ll major particulars of the case.......... Medical evidence also fully supports the ocular account so far as the nature and locaie of injury. The weapon of offence recovered from the appellants and the gmpties which were taken into v possession from the place of oceurrence were sent to Forensic Science Laboratory and the report was positive."

28.It is true that the 3 eye witnesses state that they had been awaken by the shots and it would have taken them some minutes to reach the scene of the crirne but importantly none of them say that they saw any but the injured Ms Khatoon and Mr.Alam being shot.

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According to their evidenqe they witnessed general firing on all the bodies and as such they have not claimed that they were present at the start of the firing which clearly went on for some time as can be judged by the number of injuries on the deceased and the number of empties found at the scene of the incident. They saw the incident through a light from relatively closb range and quite reasoriably explained that they did not intervene because they were all unarmed whilst the appellant was armed and was busy firing hence their non intervention is explainable lespecially as the appellant ran away on their arrival at the scene. They did not claim to have seen the incident from start to finish which was already underway on their amival which ties in with their evidence. There conduct also appeals to reason in that they took the injured to hospital immediately because they could potentially be saved, left one of them behind to deal with the dead bodies and thereaJter one of ttre persons (the complainant) who accompanied the injured to the hospital only then went to lodge the FIR within 45 minutqs of the incident giving him no time to concoct a false story which as mentioned above is one of the rrrain and well settled reasons that the promptitude in filing an FIR adds to

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its reliability and credibility,as it rules out the chance of making up a concocted story.

29.Furthermore, if as per the appellants del'ense if the complainant and the eye rvitnesses had murdered the deceased why would they have left 2 persons living who could have identified them? They were

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not disturbed so logically they would have killed all the 5 deceased and would not have taken the risk of any injured person liter identifying them instead they tool< the injured promptly to hospital and attempted to save them. With regard to the identification of the appellant by the eye witnesses admittedly their was a ligtrt bulb v burning which would have assistecl their vision and they were relatively close by but more importzrntly however they knew the appellant as he was a relative and a neighbor and thus were able to easily recognize him. This was not a case where one person got a fleeting look at a person who he had nbver seen before so in our view there is no doubt about the identification of the appella4t by the eyewitnesses especially when it is considered in the light of all the other evidence on record. In this respect reliance is placed on Ashique Hussain's case (Supra). This case in our view based on its own particular facts and circrrmstances is fully distinguishable from Arshad Khan's case (Supra) where the complainant in that case hacl lodged the FIR when "per clTance" he had met a police officer. In this case the complainant promptly ancl deliberately went to register the FIR as soon as was possible after the incident bearing in mind .his concern to care for the injured first. Based on the particular facts ancl circumstances of this case where the appellant was well knou,n to,the eye witnesses and his prompt confessional statement within hours of his arrest there was also no need.,for an identification parade especially when the other, corroborative evidence was taken into account for example the murder weapon being his own licensed weapon which was recovered from him and the medical evidence., In this respect reliance is placed on Haq Nawaz v State (2000 SCMR 785). The three eye witnesses we found to be confidence inspiring and none of whom was damaged on cross exarnination and therefore their evidence alone is sufficient to convict the appellant provided that it is ,L not contradicted in any material way by any other piece of evidence on record. :

30.Furthermore, the defense plea that there was more thart otrt: person who committed the crime also does not stand up to scrutiny as the empties recovered all came from one weapon and no other

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murder weapon was found, Logically if 3 people want to kill 5 others they would all have been armed and not carrying one TT pistol between them. Thus, having found the evidence of the complainant and 2 eye witnesses to be confidence inspiring we now turn to examitre the other evidence and poteirtial defects in the prosecution

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case as raised by the appellant to see'if this in any way can damp.ge the prosecution case in any material aspect so as to caste doubt on it.

The medical evidence.

31.The medical evidence categorically shows that all 5 of the deceased died of fire arms injuries which corroborates the ocular account.There appear to be only two minor discrepancies. One in the case of Mrs Khatoon and the other in the case of Mr.Alam.In each case one of their injuries were potentially found to be non fire arrn. Based on the fire arm injuries sustained by each and every one of the deceased it is apparent that the cause of death was from a fire arm injury so in this respect we do not fincl it of great significance that,orre injury each was caused on Ms Khatoon and Mr.Alam potentiallyrnot by a fire arm especially aslthe causerof death of each deceased,was through a firearm injury. The inquest,reports completed by the police match the cause of death and the post mortems were carried out promptly and all other official documentation in respect of the ded,th's and injuries have been placed on record and have not been disputed in any meaningful way.

32.The cause of death of 3 of the deceased who died on the spot as opined by PW Dr.Ghulam Jillani and the cause of death of the other 2 deceased who were seriously injured and died in hospital shortly after the incident by PW Dr.Amna and PW Dr.Abdul Samad below for ease of reference:

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1". Post Mortem (PM) of Ghulam Hyder s/o Muhammad Alam by Dr.Jillani.

Opinion : From the e4ternal and internal physfcal examination of deceased Haji Ghulam Hyder s/o M. Alam, I am of the opinion that'he has died due to lirearrn injury, resulting in severe blood loss and shock finally :r l

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n PM of deceased Muhammad Azam s/o HaJi Ghulam Hyder by Dr. Jillani.

Opinion : Frorn the external and internal physical examination of deceased M. Azan s/o I am of the opinion that he has died due to firearm inJuries resulting in severe blood loss, resul[ in shock and finally death (bolcl adcled)

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3 P.M. of Muhammad Nazim s/o Ghulam Hyder by Dr. Jitlani.

Opinion : From the external and internal physical examination of deceased M. Naaim s/o Ghulam Hyder I am of the opinion that he has died due to firearm injury resulting in severe blood loss and shock and then finally death (bold added).

4, PM. of Mst. Sahib Khatoon by PW Dr. Amna.

Opinion: I am of the opinion that the cause of death is flrearm inJuries resulting into multiple perforations ol'the abdominal viscera leading to severe hemorrhage- hypovolemic shock-death (bold added).

5.PM. of Muhammad Alam by Dr. Abdul Samad.

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Opinion : I am of the opinion that the cause of death was extensive damagE to vita-l organs of the body i.e. Brain and liver resulted from hard an'd blunt substance (Injury No.1) and. firearm injuries No.2 & 3. resulted into severe hemorrhage, shock, coma and death. InJurles No.7., 2 & 3 tndlatduallg or collectlaelg are sufflcient cause oJ death ln ordlnary course of nature. (bold and itailics aclded)

33.Thus, rve find the medical evidence to be corroboratory of the eye witness oral evidence.

Contradictions in evidence of PW's"

34.As regards to some contradictions in the evidence of some of the PW's in particular PW Abdul Jabbar in respect of the timing of ,the ,t incident. This timing however is not substantial and only differs by about 3O minutes from the time siated by the other witnesses otherwise his evidence is in conformitli with the other PW's on the points which he gives evidence on. In our view however based on the overwhelming other ocular, medical. and ballistic evidence this witnesses evidence when' put jn context is only of a minor

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contradictory nature especially as the difference in time is only about 30 minutes and can be ignored.

35.With regard to the PW IO Ghulam Ali initially saying that he went to arrest the accused by bike when other arresting officers say they went to arrest the accused by taxi we note that this

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contradiction was later clarified in the evidence of the IO.In any event we do not consider that much hinges on it as the appellant admitted that the weapon belonged to him and he produced his license for the weapon in his own name and during cross exarnination he did not directly challenge his arrest and the recovery of the weapon from him which was his own licensed pistol. As was held in the case of Zakir Khan & others v, The State (1995 SCMR 1793) minor contradictions will not be fatal to the prosecution case as such contradictions are quite natural due to passage of time etc. Thus since these contradictions are only minor in nature and are not major or material in our view they can be ignored.

Motive.

36.As disclosed by the 3 eye witnesses the appellant had a clear motive to kill cleceased Ghulam Hyder as according to them Ghulam Hyder was in an agricultural property dispute with the appellant as Ghulam Hyder was not handing over to him signed documents of the transfer of the property to,the appellant. This would also tie in wittr his need to kill all the members of Ghulam Hyders family 4 of whorn were male and thus would Aave had inheritance rights if only Ghulam Hyder rvas killed. This has also been admitted in the appellants confessional statement which he now'asserts was coerced from him. Thus, we find that the appellant had a motive to kill all 5 of the deceased.

37.With regard to the complainants and 2 eye witnesses alleged }. motive by the appellant that they also had a motive to murder Ghulam Hyder on account of a property dispute it has come on record that such dispute had been compromised and that there was no remaining enmity between the parties.

Ballistic and chemical Reports.

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38.It is a matter of record that the ballistic report was sent after a delay of one rnonth trowever based :on the particular facts and circumstances of this case we do not consider this delay to be of particular relevance. This is because the murder weapon i.e' the TT pistol was recovered from the appellant, which is not denied, and the TT pistol is his own registered pistol for which he had a valid license

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in his own narne and as such there is lro question that the pistol was foisted upon him. The ballistic report Also shows that the recoverecl empties, which were sealed and were kept in safe custody, only came from his pistol and none other. Thus we find that the ballistic evidence also fully supports the prosecution case. In this respect reliance is placed on Muhammed Aslam's case (Supra) which at P.597 held as under:

"8. In the above circumstances we find that both the eye-witnesses are consistent in their statements and the manner in which the incident had taken place' There is no contradiction in the statements of both the eye-witnesses on material points. Their statements are fully supported by medicai evidence. F.l.R. in the present case was recorded with a promptittrde and in such circumstances prosecution has been able to prove the case against the appellant beyond any shadow of doubt.

9.Coming to the question of delay in sending crime weapon and crime empty, admittedly, the crime empty was recovered on the,day of incident and the crime weapon vias recovered on 15-8-2003. It appears that the s€une were, however, received in the, office of Forensic Science Laboratory on2i:l-9-2003 with considerable delay but such delay shall not in the facts and circumstances of this case, outweigh the ocular evidence found in line with and supported by the medical evidence. Rel'erence in this behalf is made to Nizamu.d din u. The State (2010 SCMR 17s2l.

39.With regard to the chemical report this has been found to be positive in respect of the human,blood, on the clothes of the deceased and on the soil and has not been disputed and also supports the prosecution case.

The Appellant's Confessional Statement.

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40.From the evidence of PW Mr.Anwer Ahmed who was the judicierl magistrate urho recorded tl:re conl'essional statement of the appellant his eviclence shows that this statement was taken fully in accordance with the law and is legally valid. The appellant himself admitted in his own evidence to making the statemen! although he claimed this was

out of coercion. In our view one of the importance aspects of the truth of ttris confessiotral statement is that it was taken within 6 hours of the arrest of the appellan( thus there was no opportunity for the ancl police to otherwise coerce or torture the appellant into confessing is no in any event the confessional statement clearly shows that there evidence of maltreatment at the time of the confession. It therefore seems likely that so soon after the incident the appellant was remorse prepared to get the matter off his chest and showed genuine later for his actions before he had a chance to consult a lawyer and was not resile trom the statement. It is also relevant that the appellant well aware of a laymal. He was a police officer and would have been the consequences of giving such a confessional statement'

41.I1. is true that the appellant should not have been handed bacl< tothesamepolicemenwhobroughthimtbrtlreconfessiontoremalcl of him into judicial custody but based on the facts and circumstances does trot this case we consider thisi'to be only a minor flaw which effectthevaliclityancladmissibilityoftheconfessionwhiclrwefindto The rec<'lr<l have been legally taken by the concerned magistrate' reflects that after recording the conlession the appellant was

remanded to juclicial custody but in the custody of the sarne policemanvrlrohadbroughthimtorecordhisconfessionwhichinour placed on the case view was a minor lapse' ln this respect reliance is ofKhanMohammedVStdte(2o11SCMRP.7o5)whichheldatP.Tlo thatminorlapsesonthepartofpolice.officerswouldnotbestrfficient is also I to demolish otherwise unimpeachable evidence' Reliance MLD 7Ol) in placed on the case of Salamat V The State (2017 when made respect of the admissitrility of confessional statements as under:

shortly after arrest in which atP'7 i0 it was held is concernecl' i[ "So far as the veracity of confessional .statement genuineness of Lhe is lmportant that in order to ascertain the which it wus confessional statement the circutrnstances under

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recordecl are 1-o l.)e exarninecl carefully. It is established legal position that lbr placilg reliance:on confessional statement it is to be seen that it is not only true, voluntarily and believable but should be without fear or any inducement. As far as 'the present confessional statement is concerned, it is the case of prosecution that the accused was arrested at O1'OO a'm' on 3O.O9.2OO4, ancl on the same day his confessional statement was recorded at 12.OO noon. Learned magistrpte before recording the conl'essional statement had given him two hours times to ponder, all'relevant necessary questions and codal formalities were comhleted, therefore, it appears ttrat the above confessional statement was voluntary itnd the tdal court has rightly believed it. There is sufficient law on the point that capital punishrlent can be awarded on the basis ofrekacted confessional statement, if it is concluded tfiat the same was voluntary. In this regard reliance can be placed to the cases of Muhammad Amin v. The State PLD 2006 SC 219, Nizam-ud-Din v. Riaz 2010 scMR 457 and Muslim shah v. The State, PLD 2005 SC 168 (bold added)'

42.Likewise in Dadullah,s case (supra) it was held by the Hon'ble Supreme Court that even if there were procedural defects in a confessional statement provided that such confessional statement was found to be true , voluntary and cor-rfiflence inspiring could forrt the basis of a conviction in the,following terms at P.862 1' "8. The appellants though retnacted later on, have also eat'lier separately ionfessed the guilt before the Judicial Magistrate ancl have narrated the details and background of the occurrel'rce' This is settlecl law that conviction could not be recorded on'the sole basis of confessional statement and the prosecution has to prove its case beyonql any shadciw of doubt' However, having gone through the Lvidence, we have found that the confessional statements of the acoused wereinot the result of maltreatment and coercive measure$. the Juciicial Magistrate has stated that the accused. were given relaxation of time and they were tolcl that they are not bound to rebord their statements. It was further clarilied that if they did not want to make their statements, they will ,hot be harrded over to Levies and will be sent to Judicii lockup. Opportunity was provided to both the accused to cross-ex€tmine each other. Notwithstanding tlre procedural defect in the confessional statement, if any, a judiciarl ionfession if it is found true, vol.untary and confidence inspiring, could safely be made basis for conviction. Retraction of confessions by the accused seems to be palpably false and incorrect only to save their skin and the only conclusion that could be clrawn is that confessional statements were recorded by the accused voluntarilY."

43.Thus, we find the confessional statement of the appellant to be legally admissible and place reliance oir'it for corroborative purposes.

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Dying Declaration of Mrs Khatoon.

44.With regarcl to the dying declaration of Mrs Khatoon we note that all the 3 eye witnesses state in their evidence that she was in her senses when she was sent to hospital albeit in an injured conclition. Even the complainant has stated in his evidence that Mrs Khatoon

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had told him before she was shifted to hospital that the appellant hacl fired on them all. At the hospital the evidence is that Ms Khatoon was still in her senses when the IO sought the permission of the Dr. to take her dying declaration which he did and was witnessed by the Dr PW Jillani. The dying declaration of Ms Khatoon specifically states that the appellant killed the deceased by firing on them. There seems to be no particular format for a dyi+g declaration and the main requirement appears to be that it is made without influence which we find to be in this case as it,was made only before the Dr, the IO and the person he was dictating the dying declaration to and no other person was said to be around Mrs I(hatoon at the time when she made it. In this respect the case is distinguishable form Farman BI's case (Supra). The dying declaration thus, in otlr view, fulfills all the requirements of law and we find that it is admissible and can be reliecl

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upon. In this respect reliarrce is placed on Majeed V State (2010 SCMR 55) where at P.SB it was held as under

"7. Tihe evidence of P.Ws.3, 4 and 7 reveals that when they reached on the fire-arm reports they found the deceased Mir Shaldad lying dead while Mujeeb-ur-Rehman was alive but lying in inlufta condition who disclosed that the appellant Majfed and- Ismail had fired at them. P.W.7 apart from naming the above two persons also named Naseer and Bashir' All these three witnesses were' cross-examined but nothing carne on record to cliscredit their evidence.rNo serious effort was made to challenge their statement on the, question of dying declaration' From the evidence it has been established beyond any shadow of doubt that deceasecl Mtljeeb-ur-Rbhman made dying declaratiorr immediately after the Incident, eliminating the possibility of -et".

influence before,, the witnesses making the appellant responsible as one of the accused'for causing them injuries' It is a well-settled principle of law that if dying declaration is made even before a- private person, is free from influence and i-he persons before whom iuch dying declaration was made was examined then it becomes surbstantive piece of evidence and for that no corroboration is required and such declaration can be made basis of convibtion.

tlhis Court gave following guiding

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principles for relying upon the c\ing declaration in the case of Farmanullah v. Qadeem Khan 2O01 SCMR 1474.

',(i) There is no specified forum before whom such declaration is required to made.

(ii)There is no bar that it cannot be made before a private person.

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(iii)There is no legal, iequirement that the declaration musL be read over or it must be signed by its maker.

(iv)It should be influence free.

(v)In order to prove such declaration the person by whom it was recorded should be examined.

(vi)Such declaration becomes substantive evidence when it is proved that it was made by the deceased.

(vii)corroboration of a dying cleclaration is not a rule of law, but requirement of prudence.

(viii)Such declaration when proved by cogent evidence can be made a base for conviction."

45.Thus, in our view, 'the prosecution has proved the dying a declaration which by itself is sufficient to maintain the conviction ancl sentence and we place reliance on it foq.corroborative purposes' Interested witnesses.

46.It is true that most of the witnesses as well as the appellant all appear to be interested witnesses as they all seem to be related to each other in one way or the other however no evidence has come on record that there was any, open enmity or animus between the PW's and the appellant and as such since in our view all the evidence of the interested PW',s seems to' b" reliable and corroborated by ott'er independent evidence we do not consider that the aspect of interested witnesses is relevant based on the particular facts and circumstances of this case and the evidence on record. In this respect reliance is placed on the case of Khizar V state. (2011 SCMR 4291 and' Faisal Conclusion.

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47.Thus, when we consider the evidence in both isolation and in a holistic manner we find that the evidence of the 3 eye witnesses is reliable, trust q,orthy and confidence inspiring and all acted in a manner which appealed to Ieason from the hearing of the shots which awakened them to the filing of the FIR promptly through to their Y evidence Ltnder oath which'was not undermined despite being subject to lengthy cross exalninations. That their evidence is corroboratecl by the medical evidence, the chemical report, the ballistic report, the confessional statement of the appellant and the dying declaration of Mrs I(hatoon. 'Ihe appellant hacl a motive for the murder, the means and the opportunity and the weapon used in the murder was his own which has not been deniecl. There are no major contradictions in the prosecution evidence and when read together creates a consistent unbreakable chain of events from the,witnessing of the murder to tl"re giving evidence at trial.

48.Althor-rgh it is not for the appellant to prove his innocence rather as mentioned earlier it is for the prosecution to prove its case against him beyond a reasonable cloubt his hefense to our mind does not appeal to reason. Namely, the 3 persons he accused of the mllr(lcl a .

(the complainant, Azizullah and Yarneen) had no real motive, ttre murder was committed with his own weapon which was found on him with no other empties being found at ttre scene' Even in his own evidence he claims to have been arrested after he has already given his confessional statement which does not seem to make any Sense whatsoever. Furthermore, no one gave any evidence in support of his defense which he had relied upon based on the line of his cross examination, that is, neither his wife'nor his brother. No record was produced or witness gave eviderlce to show that he was on duty at the time of the offense as claimed by him. According to the appellant he had also gone to lodge an FIR in respect of the incident against the complainant and the eye witnesses for the murder however this is not mentioned in his own evi<lence. As such his defense seems to us tQ be contradictory, untrue, implausible and an after thought'

49.Thus, for the reasons discussed above we find that the prosecution has proved its case against the appellant beyond a ry

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reasonable doubt. We are in no doubt that a person of a reasonable and prudent rnind would find that when all the evidence is examined in both an isolated and holiitic manner he would have no doubt that the appellant committed the offences of 5 cold bloodied murders barring the offense under,'S.338 PPC for which we have already acquitted the appellant as he was not charged with such an offense.

50.As such, we uphold the impugned judgment except the conviction under 5.338 PPC for which the appellant is acquitted and modify the convictions to five separate murders under S.3O2 (b) PPC as Ta'zir to death on each count rather than 5.302 (a) PPC based on the evidence ancl the particular facts and circumstances of the case 51, With regard to the confirmation of the death penalty in the case of Dadullah (Supra) with regard to confirming the death sentence the need for deterrence and retribution was stressed by the Supreme Court in such heinous cases unless there were mitigating circumstances in the following terms:

"Death sentence in a Jnurder case is a normal penalty ancl the Court while diverting towarcls lbsser sentence should have to 7 give detailed reasons. The appellants have committed the murder of two innocent citizens and also looted the bank in a waJrton, cruel and callous manner, Now a days the crime in the societ5r has reached an alarming situation and the mental propensity towards the commission of the crime with impunity is increasing. Sense of fear in the mind of a criminal before embarking upon its cotnmission could only be inculcated wtren he is certain of its punistrment provided by law and it is only then that the purpose and object of punishment could be assiduously achieved. If a Court of law at any stage relaxeS its grip, the hardened criminal would take the society on the same page, allowing the habitual recidivist to rr-rn away scot-free or with punishment not commensurate with the proposition of crime, brining the administration of criminal justice to ridicule alld contempt. courts could not sacrifice such deterrence and retribution in the nanne of mercy and expediency. Sparing the accused with death sentence is causing a grave miscarriage url' justice and in order to restore its supremacy, sentence of death should be imposed on the culprits where the case has l:een proved."

52.The learned counsel fo1 the appellant conceded that in this case there were no mitigating factors' :

r<y

2t3 13 f

53.We have also careftrl$r gone through the record and have corne to the conclusion that there are no mitigating factors rather in our view there are aggravating factors in that the appellant by pre mediated murcler killed 5 persons out of greed for land. This is a case of extreme brutality. In killing such persons he fired numerous rounds into each person and probably ivould have fired more had he not been interrupted in the middle of his actions which caused him to flee. Of his 5 victims 3 were minor boys (aged 8/9 years, 5/6 years and 3/4 years of age respectively) and one was an 8 month pregnant womqp whose pregnancy he must have known about due to her advanced stage of pregnancy and she was also a relative and a close neighbor. The evidence leaves us in ino doubt that he aimed to deliberately and intentionally eliminate.in cold blood an entire family (inclucling a pregnant lady and 3 minors) by brutally and callously pumping numerous bullets into each of them in order to gain property. He has shown no remorse or regret for his actions and as such we consider that under such circumstances the 5 separate death penalties handed dowrr to him by the trial court should each be confirmecl and accordingly we confirm the same' ln support of ttre Y confirmation of the death sentence in a brutal case such as tttis reliance is placed on Tariq,Iqbal's case (Supra) Khalid Mehmood's case (Supra) and Muhamm4d Akram V State (2O11 SCMR 145)

54.Thus, for the reasons discussed above the impugned judgment is up held except in respect of the conviction under S'338 PPC for which the appellant is acquitted, the hppeals are dismissed and the reference for the confirmation of the death sentence is answerecl in the affirmative

Hyderabad:

JUD

Dated:30-05-2017

3.o. S

JUDGE