MUHAMMAD SHAH NAWAZ Vs The STATE and others

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lahore high court
lahore high court

MUHAMMAD SHAH NAWAZ—Appellant

Vs

The STATE and others—Respondents

Criminal Appeal No.207 and Murder Reference No.56 of 2017, heard on 17th May, 2018.

Before Syed Muhammad Kazim Raza Shamsi and Asjad Javaid Ghural, JJ

(a) Penal Code (XLV of 1860)—

—-Ss. 302 & 311—Qatl-i-amd, tazir after waiver or compounding of right to qisas in qatl-i-amd—Appreciation of evidence—FIR was lodged after the delay of more than one hour—Effect—Incident had taken place in the night on 9.12.2015 at 11.00 p.m., which was reported to the police station for the registration of the crime report promptly at 11.35 p.m. and the case was registered at 12.05 on 10.12.2015—Information was furnished by complainant being eye-witness of the occurrence within the shortest span of time—Such circumstance would exclude every hypothesis of deliberation, consultation and fabrication prior to the registration of the case—Promptness in lodging the crime report by an independent eye-witness contained the presumption of its correctness.

(b) Penal Code (XLV of 1860)—

—-Ss. 302 & 311—Qatl-i-amd, tazir after waiver or compounding of right to qisas in qatl-i-amd—Appreciation of evidence—Double murder—Sentence reduction in—Prosecution case was that the accused had murdered both the deceased persons by giving it the colour of Kara Kari and caused Fasad-Fil-Arz—Ocular account was furnished by two witnesses including complainant—Complainant while appearing had reiterated the contents of the crime report—Eye-witness had made consistent statement to that of the complainant on each and every minute detail of the incident in respect of time, date, place, mode and manner of the occurrence, name of the accused, the weapon of offence used and the role assigned to him for committing the murder of both the deceased persons—Admittedly, both the witnesses were Police Officials, had no relation or concern whatsoever with either party and they, being independent witnesses, had made straightforward statement what they had seen at the time of occurrence—Nothing favourable material could be extracted from their mouth by the defence during cross-examination—Both the witnesses of ocular account had no grudge, ill-will or animosity to falsely implicate the accused in the case—Even the accused, in his statement recorded under S.342, Cr.P.C., had not questioned their being not independent or biased witnesses—Defence had claimed that incident had taken place at spur of the moment in the heat of passion on seeing both the deceased in compromising position—Record showed that the deceased lady was first paternal cousin of the accused and they were residing in the same compound in different rooms but it was quite possible for the accused to bolt the door from outside or to make both the deceased hostage on gun point, called other inmates of the house and then reported the matter to the police for taking them to task instead of taking the law in his own hands—Accused had not taken plea of killing both the deceased in the heat of passion either during cross-examination upon the eye-witnesses or in his statement recorded under S. 342, Cr.P.C.—Contention raised by the defence in that regard, subsequently, appeared to be afterthought had no legs to stand—Offence committed by the accused could not be considered to have taken place at the spur of the moment or in the heat of passion rather he had committed murders as Kara Kari on his own and on account of honour—Said fact had further been fortified by positive report of the Forensic Science Agency verifying that the swabs of deceased were found stained with semen, which showed that the motive behind the occurrence that both the deceased were in compromising position, was fully proved—Foundation of the occurrence that the accused had murdered both the deceased on account of Ghairat did not hit the provisions of S.302(c), P.P.C. as it fell within the exception clause of said provision—Seat of injuries, the number of injuries and the weapon of offence used and duration between the injuries and death as well as death and post-mortem examination were in consonance with the ocular account furnished by the prosecution—Circumstances suggested that the medical evidence lent full support to the ocular account furnished by the prosecution—Record transpired that the recovery of crime weapon remained inconsequential and the occurrence had taken place inside the bounds of the compound of accused in the adjacent room of his house and on seeing both the deceased in objectionable condition, he being paternal cousin of the deceased, lady, had reacted blindly without considering its consequences—Such factors constituted mitigating circumstances, thus appeal was dismissed by maintaining the sentence of the accused under S.302(b), P.P.C., however his sentence of death was modified to the one of imprisonment for life on two counts.

(c) Criminal trial—

—-Decision of a case—Principle—Every criminal case was to be decided in its entirety while gathering whole circumstances.

Nadeem Ramzan v. The State 2018 SCMR 149 rel.

(d) Penal Code (XLV of 1860)—

—-Ss. 302 & 311—Qatl-i-amd, tazir after waiver or compounding of right to qisas in qatl-i-amd—Appreciation of evidence—Recovery of weapon of offence and crime empties—Reliance—Scope—Investigating Officer had secured two crime empties of .12-bore pistol lying near the dead body of male deceased—One empty of .12-bore pistol was also secured from the place where the first fire hit to the deceased—One crime empty of .12-bore pistol was secured from the eastern side of cot of lady deceased—Four shotshells, secured from the place of occurrence, were deposited in the office of Forensic Science Agency on 20.12.2015—Accused was arrested in the present case on 23.12.2015, who on 1.1.2016, in pursuance of his disclosure, led to the recovery of .12-bore pistol along with three live bullets, which were taken into possession—Said weapon of offence was dispatched and deposited in the office of Forensic Science Agency on 8.1.2016 for its comparison with the crime empties already secured and sent to the said office on 29.12.2015 after six days of the arrest of accused without any legal justification—Report of Forensic Science Agency though was received with positive result yet the possibility could not be ruled out of consideration that the said shotshells had been maneuvered by the prosecution after arrest of the accused, by making fire shots from the weapon recovered from him, just to strengthen the prosecution story—Recovery of weapon of offence etc., in circumstances, rendered it unsafe to be relied upon especially on the charge of capital sentence.

Nazeer Ahmed v. The State 2016 SCMR 1628 rel.

(e) Penal Code (XLV of 1860)—

—-S.302—Qatl-i-amd—Sentence—‘Death sentence’ and ‘imprisonment for life’—Scope—If at any stage, both the sentences of death and the imprisonment for life could possibly be awarded, the better option for the court was to give preference to the lesser sentence, as a matter of caution.

Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 rel.

Malik Muhammad Saleem for Appellant.

James Joseph, Mubashar Khosa and Ali Akhtar Botla for the Complainant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Date of hearing: 17th May, 2018.

JUDGMENT

ASJAD JAVAID GHURAL, J.—Through this criminal appeal under Section 410, Cr.P.C., appellant Muhammad Shah Nawaz has challenged the vires of judgment dated 30.03.2017 passed by the learned Additional Sessions Judge-I, Jampur District Rajanpur in case FIR No.243 dated 10.12.2015, in respect of offences under Sections 302 and 311, P.P.C., registered at Police Station, Dajal District Rajanpur whereby he was convicted and sentenced as under:–

Under Section 302(b), P.P.C.

Death on two counts for causing murder of Muhammad Younis and Mst. Tahira Bibi deceased and to pay the compensation of Rs.100,000/- under section 544-A, Cr.P.C. to the legal heirs of each deceased recoverable as arrears of land revenue and in default thereof, to further undergo simple imprisonment for six months.

2. Murder Reference No.56 of 2017 had been sent up by the learned trial Court for confirmation or otherwise of death sentence of appellant Muhammad Shah Nawaz, which is being decided through this common judgment.

3. The prosecution story unfolded in the crime report (Ex.PJ) was registered on the complaint (Ex.PK) of Riaz Hussain Bokhari, SI (PW-7) is that on 09.12.2015 at about 11:00 p.m. he along with Habib-ur-Rehman (PW-9), Muhammad Ramzan, Aziz Ahmad, constables and driver Khalil Ahmad, constable (PW-8) was present at Mauza Patti Qazi Basti Daraja on surveillance duty when he heard the voice of a fire shot from the house of Ashiq Hussain Daraja whereupon he along with other police contingents rushed towards the house/Haveli. The electric lights were on. They were still outside the Haveli when they again heard the voice of second fire shot. There entered the Haveli and saw a person (subsequently known as Muhammad Younas) smeared with blood, trying to scale over the western wall. In their view, a person (subsequently known as Shah Nawaz) raised Lalkara that he had murdered Mst. Tahira after declaring her as Kali and how could he escape being Kala and made a straight fire shot with his pistol .12-bore, which landed at the head of Muhammad Younas, who fell down and started wavering. The complainant and his companions ran to apprehend Shah Nawaz but he went out from the southern gate along with his pistol and succeeded to flee away while taking the advantage of darkness outside. In the meanwhile, Ashiq Hussain and Karam Hussain also came there They entered the room where the dead body of a woman (subsequently known as Tahira Bibi) was found lying on a cot having fire arm injury at her chest. They attended Muhammad Younas, who was found dead. It was alleged that the accused had murdered both the deceased persons by giving it the colour of ‘Kala Kali’ and caused ‘Fasad Fil Arz’.

4. Ashraf Ali, Inspector (PW-13), on receipt of information with regard to the occurrence, reached at there, recorded the statement of complainant (Ex.PK) and sent the same to the police station for the registration of case. He inspected the dead body of deceased Muhammad Younas, prepared his injury statement (Ex.PB), inquest report (Ex.PD) and escorted the dead body to the mortuary. He examined the dead body of deceased Mst. Tahira, prepared police docket (Ex.PE) and her inquest report (Ex.PG) and escorted the dead body to the mortuary. He prepared rough site plan of the place of occurrence (Ex.PU), secured blood stained earth from underneath the dead body of deceased Muhammad Younas vide memo. Ex.PL and secured two crime empties of pistol .12-bore lying near the dead body of deceased Muhammad Younas vide recovery memo. Ex.PM. He also secured one empty of pistol .12-bore from the place where the first fire shot had hit Muhammad Younas vide recovery memo. Ex.PN. He took into possession one crime empty of pistol .12-bore from the eastern side of cot of deceased Mst. Tahira vide recovery memo. Ex.PO. He took into possession the warm coat (P-3), warm Chadar (P-4) and a sleeper (P-5) of Muhammad Younas vide recovery memo. Ex.PP. He had arrested the appellant on 23.12.2015. On 29.12.2015 he took into possession the call data record of the appellant vide recovery memo. Ex.PQ. On 01.01.2016, the appellant led to the recovery of .12-bore pistol (P-6) along with three live bullets, which were taken into possession vide recovery memo. Ex.PR. He also got recovered a mobile phone (P-7) along with two sims (P-8/1-2), which was taken into possession vide recovery memo. Ex.PS. He recorded the statements of witnesses under Section 161, Cr.P.C. and got prepared scaled site plan Ex.PA on 10.01.2016. He got sent the appellant into the judicial lockup on 02.01.2016.

5. Dr. Hafiz Jaleel Ahmad (PW-3) had conducted the post mortem examination on the dead body of deceased Muhammad Younas and observed the following injuries:–

1. A fire arm wound 1 x 1 cm x going deep with inverted margins making a visible hole in skull on the right temporal area. This was an entry wound. No burning blackening seen.

2. A lacerated wound of 2 x 2 cm x going deep with everted and irregular margins with extension of skull bony piece on left side of forehead in hair crease as exit wound. No burning blackening seen.

3. A lacerated wound of 2 x 2 cm x going deep on anterio lateral aspect of right upper arm as entry wound with corresponding hole on Bunyan. No burning and blackening seen.

4. A lacerated wound of 2.5 x 2.5 cm x going deep with everted and irregular margins on anterio medial aspect of right arm an exit wound with corresponding hole on Bunyan and also a “Litta” was received and handed over to police. No burning blackening seen.

5. A fire arm wound 1.5 x 1.5 cm x going deep on anterio medial aspect of the right axilla with corresponding hole on Bunyan as the entry wound clinically with fracture of ribs. (exit of injury No.4).

6. A fire arm wound 1 x 1 cm x going deep with inverted margins on anterio lateral aspect of right side of the chest 4 cm away from right nipple as entry wound with corresponding hole on Bunyan. There was also burning and blackening and tattooing in a area of 2 x 2 cm was present on right side of chest.

7. A fire arm wound of 2 x 2 cm x going deep with everted and irregular margins on left side of the upper back as exit wound. No burning and blackening seen and with corresponding hole on Bunyan.

The scalp, membranes and brain were injured and the skull was fractured. The walls, sternum (manubrium body, xiphisternum), cartilages and ribs fractured 2nd and 3rd ribs. The right pleura and right lung were injured. The cause of death in this case was due to injury to vital organs i.e. brain and lungs leading to sever hemorrhage and shock. The probable duration between the injuries and death immediate whereas between death and post mortem examination 11 to 12 hours.

6. Dr. Shumaila Afsheen (PW-4) had conducted the post mortem examination on the dead body of deceased Tahira Bibi and observed the following injuries:–

1. A large (firearm) lacerated wound of about 4.5 x 4.5 cm x going deep, circular in shape, margins inverted, burning and blackening present, situated on left side of front of chest 3 cm lateral to sternum just near middle part of left breast (entry wound). Corresponding hole present on Qamiz and brazier.

2. A lacerated wound of 3.5 x 3.5 cm x going deep with circular margins inverted, burning and blackening present, situated on left forearm (dorsal side) 3 cm below left elbow joint. (entry wound)

3. Four lacerated wounds of about 1 x 1.2 cm 1.5 x 1.2 cm, 2 x 1.2 cm and 2.5 x 1.5 cm, margins everted, burning and blackening not present, situated on medial side of left arm above and below elbow joint. (exit wound).

The 3rd and 4th left ribs were fractured, the pleurae, both lungs, pericardium, heart and the blood vessels were ruptured. A cartridge (Littah) and multiple foreign metallic bodies were recovered. The liver, left humerus, left radius and left ulna were also injured. The cause of death was due to hemorrhage and shock and injury to vital organs i.e. (heart, lung, liver). This injury was sufficient to cause death in ordinary course of nature. The probable duration between the injuries and death immediate whereas between death and post mortem examination 12 to 13 hours.

7. At the commencement of the trial, the learned trial Court had framed a charge against the appellants to which they pleaded not guilty and claimed to be tried.

8. The prosecution had produced 13-witnesses besides the reports of Punjab Forensic Science Agency (Ex.PW & Ex.PX). The appellant, in his statement recorded under Section 342, Cr.P.C., had denied and controverted all the allegations of fact leveled against him, he neither opted to make statement under Section 340(2), Cr.P.C. nor had he produced any witness in his defence.

9. Learned trial Court, upon conclusion of the trial, had convicted and sentenced the appellant supra vide impugned judgment dated 30.03.2017. Hence, the present appeal as well as the connected Murder Reference.

10. Learned counsel for the appellant submits that the appellant is quite innocent and had been falsely implicated in this case due to some ulterior motive; that it was a dark-night occurrence and the story narrated by the complainant is highly improbable; that the deceased lady was first cousin of the appellant and she was residing in the same compound in a separate room; that in fact the appellant had seen both the deceased persons in objectionable position due to which he lost control over his senses and killed both the deceased in the heat of passion; that the claimed eye-witnesses, being police officials, had been maneuvered subsequently just for the purpose to give it a colour of ‘Ghairat’; that there was no occasion for deceased Muhammad Younas to enter into the house of the appellant at odd hours of the night and the purpose of his visit for committing sexual intercourse with deceased Tahira, has been proved through medical evidence, as the swabs taken by the medical officer were subsequently found stained with semen, which strengthen the appellant’s version to have murdered both the deceased in the heat of passion at spur of the moment; that the occurrence had taken place without preplanning or premeditation and thus, the offence committed by the appellant comes within the ambit of Section 302(c), P.P.C. He further maintained that he does not press this appeal if the conviction and sentence of the appellant is converted to one under Section 302(c), P.P.C.

11. Conversely, learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant has vehemently opposed the aforesaid contentions and submits that the occurrence had taken place within the premises where the appellant and deceased Mst. Tahira were residing and the appellant, being sole perpetrator, had committed the intentional murder of two persons within the bounds of his house in a gruesome manner by making repeated fire shots; that this occurrence cannot be termed to have taken place at spur of the moment rather the appellant, who was residing in a separate room, had an ample opportunity to lock both the deceased from outside, call the police or people of the vicinity and they made them to face the consequences in legal course instead of taking the law in his own hands; that both the witnesses of ocular account, being independent witnesses having no ill-will grudge against any of the parties, had made consistent and confidence inspiring evidence, which is supported with the medical evidence and also corroborated with the positive report of the Ballistic Expert; that the prosecution has fully proved the homicidal death of both the deceased at the hands of the appellant beyond shadow of reasonable doubt and, thus, the learned trial Court has rightly convicted them to the capital sentence. Finally, prayer for the dismissal of the appeal and also confirmation of death sentence of the appellant has been made.

12. We have heard learned counsel for the appellant, learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant and have perused the record with their able assistance.

13. This unfortunate incident had taken place in the night on 09.12.2015 at 11:00 p.m., which was reported to the police station for the registration of the crime report promptly at 11:35 p.m. and the case was registered at 12:05 on 10.12.2015. The information was furnished by Riaz Hussain, SI/complainant being an eye-witness of the occurrence within the shortest span of time, which excludes every hypothesis of deliberation, consultation and fabrication prior to the registration of the case and such promptness in lodging the crime report by an independent eye-witness contains the presumption of its correctness.

14. The prosecution case hinges upon the testimony of Riaz Hussain, SI/complainant (PW-7) and Khalid Ahmad, constable No.603/driver (PW-8). The complainant while appearing in the dock in the courtroom had reiterated the contents of the crime report stating that on the fateful night he along with other police contingents, was present on surveillance duty near the place of occurrence at about 11:00 p.m. when they heard the voice of a fire shot from the Haveli of Ashiq Hussain Draja, he along with other police contingents rushed towards the house/Haveli, they were still outside the Haveli and heard the voice of second fire shot, entered the Haveli and saw, in the electric light, a person (subsequently known as Muhammad Younas) smeared with blood, trying to scale over the western wall. In their view, a person (subsequently known as Shah Nawaz/appellant) had raised a Lalkara that he had murdered Tahira, who was a Kali and made a straight fire shot with his short-gun .12-bore, which landed at the head of Muhammad Younas, who fell down and started wavering. The complainant and his companions ran to apprehend Shah Nawaz but he went out from the southern gate along with his pistol and succeeded to flee away while taking the advantage of darkness outside. In the meanwhile, Ashiq Hussain and Karam Hussain also came there, they entered the room where the dead body of a women (subsequently known as Tahira Bibi) was found lying on a cot having fire arm injury at her chest. Khalil Ahmad, constable (PW-8) had made consistent statement to that of the complainant on each and every minute detail of the incident in issue i.e. time, date, place mode and manner of the occurrence, name of the appellant, the weapon of offence used and the role assigned to him for committing the murder of both the deceased persons. Admittedly, they both were police officials having no relation or concern whatsoever with either party and they, being independent witnesses, had made straightforward statement what they had seen at the time of occurrence. During cross-examination nothing favourable material could be extracted from their mouths by the defence. Both the witnesses of ocular account, had no grudge, or animosity to falsely implicate the appellant in this case. Even the appellant, in his statement recorded under Section 342, Cr.P.C., had not stated a single word questioning their being not independent or biased witnesses. We are unable to find, from the evidence available on record, even a single circumstance to rebut or disbelieve the testimony of both the independent witnesses of ocular account.

Learned counsel for the appellant claimed this incident to have taken place at spur of the moment in the heat of passion on seeing both the deceased in compromise position. Yes, the deceased lady was first paternal cousin of the appellant and they were residing in the same compound in different rooms but it was quite possible for the appellant to bolt the door from outside or to made both the deceased hostage on gun-point, call other inmates of the house and then report the matter to the police for taking them to task instead of taking the law in his own hands. Furthermore, the appellant had never taken such plea of killing both the deceased in the heat of passion either during cross-examination upon the eye-witnesses or in his statement recorded under Section 342, Cr.P.C. The contention raised by learned counsel for the appellant in this regard, at this stage, appears to be an afterthought having no legs to stand. The offence committed by the appellant cannot be considered to have taken place at spur of the moment or in the heat of passion rather he had committed these murders as Karo Kari of his own and on account of honour (Ghairat). This fact has further been fortified lay attested photocopy of the positive report of the Punjab Forensic Science Agency (Ex.PX) verifying that the swabs of deceased Mst. Tahira were wound stained with semen, which shows that the motive behind the occurrence i.e. both the deceased were in compromising position, is fully proved. The foundation of the occurrence that the appellant had murdered both the deceased on account of ‘Ghairat’ does not hit the provisions of Section 302(c), P.P.C. as it falls within the exception clause of said subsection inserted by Act XLIII of 2016, dated 22.10.2016, which reads as under:–

“Provided that nothing in clause(c) shall apply where the principles of fasad-fil-arz is attracted and in such cases only clause (a) or clause (b) shall apply.”

15. Another important aspect of the discussion is that the complainant and his companions had heard the voice of one fire shot when they were in the street, they heard the voice of second fire shot when they were just outside the Haveli and thereafter they had witnessed the occurrence when deceased Muhammad Younas, smeared with blood, was trying to scale over the wall and the appellant had made straight successive fire shots at his head and other parts of the body. Meaning thereby, both the witnesses of ocular account and their companions had not seen the making of first two fire shots by the appellant including the one hit at the chest of the deceased lady. Admittedly, none else but the appellant, while armed with a fire arm weapon, was available at the place of occurrence and by taking into account the other circumstances of the case, as discussed above, he cannot escape from the liability of both the murders in issue merely on the ground that the first two fire shots made by the appellant, had not been witnessed by the complainant and his companions. The settled principle of law is that every criminal case is to be decided in its entirety while gathering whole circumstances. A reference may be made to case titled “Nadeem Ramzan v. The State” (2018 SCMR 149) wherein it has been held as under:–

“It was held that a criminal case is to be decided on the basis of totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross-examination or otherwise of a witness on a particular fact stated by him. A similar view had already been expressed by this Court in the case of State v. Rab Nawaz and another (PLD 1974 SC 87) wherein it had been observed that a criminal case is to be decided on the basis of totality of circumstances and not on the basis of a single element.”

16. Now dilating upon the submission made by learned counsel for the appellant that he does not challenge the conviction of the appellant as it had taken place at spur of the moment in the heat of passion and thus, it is a case of the sentence contained under Section 302(c), P.P.C. instead of Section 302(b), P.P.C. The aforesaid contention has already been repelled in the preceding paragraph declaring that this occurrence had taken place under the impulse of Ghairat and the aforesaid contention could not get approval from any corner/material available on record.

17. Dr. Hafiz Jalil Ahmad (PW-3) had conducted autopsy on the dead body of deceased Muhammad Younas aged about 22/23 years on 10.12.2015 at 10:00 a.m. and observed the injuries as stated in the preceding paragraph, which were ante-mortem, caused with fire arm weapon being the sole reason to cause death in ordinary course of nature. The duration of injuries and death was immediate whereas between death and autopsy 10-12 hours.

Dr. Shumaila Afsheen (PW-4) had conducted the post mortem examination on the dead body of deceased Tahira Bibi and observed three injuries, which have also been stated in the preceding paragraph. The said injuries were caused by fire arm weapon being ante-mortem and the sole reason of death of the deceased lady. The swabs taken and sent to the office of Punjab Forensic Science Agency were subsequently found stained with semen. The seat of injuries, the number of injuries and the weapon of offence used and duration between the injuries and death as well as death and post mortem examination are in consonance with the ocular account furnished by the prosecution. We are fully convinced that the medical evidence lends full support to the ocular account furnished by the prosecution.

18. Ashraf Ali, Inspector (PW-13) had secured two crime empties of pistol .12-bore lying near the dead body of deceased Muhammad Younas vide recovery memo. Ex. PM. He also secured one empty of pistol .12-bore from the place where the first fire hit to Muhammad Younas vide recovery memo. Ex.PN. He took into possession one crime empty of pistol .12-bore from the eastern side of cot of deceased Mst. Tahira vide recovery memo. Ex.PO. Total four shotshells, secured from the place of occurrence, were deposited in the office of Punjab Forensic Science Agency on 29.12.2015. The appellant was arrested in this case on 23.12.2015, who on 01.01.2016, in pursuance of his disclosure, led to the recovery of .12-pistol (P-6) along with three live bullets, which were taken into possession vide recovery memo. Ex.PR. The said weapon of offence was dispatched and deposited in the office of Punjab Forensic Science Agency on 08.01.2016 for its comparison with the crime empties already secured and sent to the said office on 29.12.2015 after six days of the appellant’s arrest without any legal justification. Though the report of Punjab Forensic Science Agency (Ex.PW) was received with positive result yet the possibility cannot be ruled out of consideration that the aforesaid shotshells had been maneuvered by the prosecution after arrest of the appellant, by making fire shots from the weapon recovered from him, just to strengthen the prosecution story and, thus, the same renders it unsafe to be relied upon especially on the charge of capital sentence in view of the dictum laid down in case titled “Nazeer Ahmed v. The State” (2016 SCMR 1628) wherein it has been held as under:–

“the crime-empty secured from the place of occurrence was sent to the Forensic Science Laboratory after recovery of the gun rendering such recovery to be legally unacceptable—“

19. The appellant, in his statement recorded under Section 342, Cr.P.C., had claimed his innocence having been falsely entangled with the murders in issue stating that it was a blind murder and none had witnessed the occurrence with his own eyes and that the complainant involved him in this case on the direction of high-ups. It was just a simple denial, which needs not to be discussed further in detail. However, we have observed that quit amazingly the argument advance by learned counsel for the appellant claiming that this occurrence had taken place at spur of the moment in the heat of passion, does not co-relate to the aforesaid plea taken by the appellant himself. Having into account the suggestions put by the defence to the prosecution witnesses, the statement of the appellant recorded under Section 342, Cr.P.C. and the arguments advanced by his learned counsel supra, the appellant seems to be perplexed by jumping from one defence to another, which shows that the appellant has no defence at all.

20. From the evidence pro and contra available on record, as discussed above, we have reached at an irresistible conclusion that the prosecution has been able to bring home guilt of the appellant beyond shadow of reasonable doubt through cogent, reliable, trustworthy and confidence inspiring evidence. Both the witnesses of ocular account, being police officials and independent witnesses, had no or animosity against the appellant and at the same time, they had no link whatsoever with the successors of both the deceased persons, had made consistent statement qua the murders in issue at the hands of the appellant. The testimony of both the eye-witnesses gets full corroboration from the medical evidence and the motive behind the occurrence stands proved rather admitted by learned counsel for the appellant during the course of arguments before us. Though the recovery of weapon of offence remained inconsequential yet the same being corroboratory piece of evidence does not affect the confidence inspiring ocular account. The appellant is the sole perpetrator of the murders in issue and the substitution in such like cases is a rare phenomenon and he cannot escape from the consequences of his gruesome act. We have no legitimate exception to differ with the conclusion arrived at by the learned trial court qua the conviction of the appellant, however so far as the quantum of sentence is concerned, we have observed mitigating factors i.e. the recovery of crime weapon remained inconsequential and the occurrence had taken place inside the bounds of the appellant’s compound in the adjacent room of his house and on seeing both the deceased in objectionable condition, he being first paternal cousin of deceased Mst. Tahira Bibi, had reacted blindly without considering its consequences. It is the settled principle of law that if at any stage, both the sentences of death and the imprisonment for life could possibly be awarded, the better option for the Court is to give preference to the lesser sentence, as a matter of caution. We seek guidance in this respect from case titled “Ghulam Mohy-ud-Din alias Haji Babu and others v. The State” (2014 SCMR 1034) wherein it has been observed at page 1044 as:–

“In any case, if a single doubt or ground is available, creating reasonable doubt in the mind of Court/Judge to award death penalty or life imprisonment, it would be sufficient circumstances to adopt alternative course by awarding life imprisonment instead of death sentence.”

21. In view of what has been discussed above, the appeal in hand stands dismissed, the conviction of the appellant in an offence under Section 302(b), P.P.C. is maintained, however his sentence of death is modified to the one of imprisonment for life on two counts. The amount of compensation as well as the sentence in lieu thereof shall remain intact. The benefit of Section 382-B, Cr.P.C. is extended to the appellant.

22. Murder Reference No.56 of 2017 is answered in NEGATIVE and the Death Sentence awarded to appellant Muhammad Shah Nawaz is not confirmed.

JK/M-163/L Sentence reduced.

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