MUMTAZ alias TAJA and others Vs The STATE and others

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Balochistan high court

MUMTAZ alias TAJA and others—Appellants

Versus

The STATE and others—Respondents

Criminal Appeals Nos. 1380, 1562 and Murder Reference No. 380 of 2013, heard on 17th December, 2018.

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Waheed Khan, JJ

(a) Penal Code (XLV of 1860)—

—-Ss. 302(b) & 34—Qatl-i-amd, common intention—Appreciation of evidence—Delay of about forty five minutes in lodging the FIR—Effect—In the present case, occurrence took place on 13.5.2010 at 1:15 p.m. and matter was reported to the police with promptitude at 2:00 p.m.—Distance between the place of occurrence and the police station was one kilometre—Record transpired that soon after the occurrence, the complainant reached police station, where on his statement, FIR was chalked out wherein the accused was duly named with a specific role— FIR was lodged promptly, in circumstances.

(b) Penal Code (XLV of 1860)—

—-Ss. 302(b) & 34—Qatl-i-amd, common intention—Appreciation of evidence—Sentence, reduction in—Mitigating circumstances—Accused-appellant was charged that he along with acquitted accused persons committed murder of the father of the complainant—Motive behind the occurrence as disclosed in the crime report was dispute over landed property—Ocular account consisted of the statement of complainant, supplemented by his maternal uncle/eye-witness—Presence of complainant along with his father/deceased seemed to be quite natural—Eyewitness who had attracted to the spot on hearing hue and cry was maternal uncle of the complainant—Both the witnesses, in categorical terms, stated that the accused along with other assailants reached the place of occurrence while armed with hatchet, inflicted blow at the back side of the head of the deceased—Statement of said witnesses reflected that they remained unanimous about the date, time, mode and manner of occurrence—Statement of the prosecution witnesses of ocular account rang true and seemed to be natural—No question was put to the prosecution witnesses regarding the salient features of the prosecution version in order to create any sort of dent in the credibility of their testimony—Medical officer had observed two injuries on the back side of the head of the deceased—Post-mortem examination conducted within three hours, ruled out the possibility of any fabrication—Bloodstained earth secured was dispatched to the offices of Chemical Examiner and Serologist—Reports showed that its origin was determined to be human blood—Hatchet was recovered from the accused—During the course of investigation accused had been found guilty—Prosecution had proved its case against the accused through leading cogent evidence, in circumstances—However, in the crime report, the accused-appellant had been ascribed single blow of hatchet on the backside of head of the deceased and had not repeated the same—On the same set of evidence, co-accused was acquitted of the charge and appeal filed against his acquittal had been withdrawn by complainant—Case of accused-appellant fell within the ambit of mitigation, in circumstances—Appeal was dismissed with modification in sentence from death to life imprisonment.

Israr Ali v. The State 2007 SCMR 525 rel.

(c) Criminal trial—

—-Witness— Related witness—Statement of related witness—Reliance—Scope—Mere close relationship of the witnesses with deceased would not discard their testimony if otherwise the same was trustworthy, confidence inspiring, appealing to reason and corroborated by independent circumstances.

Ijaz Ahmad v. The State 2009 SCMR 99 and Talib Hussain and others v. The State and others 2009 SCMR 825 rel.

(d) Criminal Procedure Code (V of 1898)—

—-S. 417—Appeal against acquittal—Presumption—Once acquittal had been recorded, presumption of innocence became double in favour of the accused.

(e) Penal Code (XLV of 1860)—

—-Ss. 302(b) & 34— Criminal Procedure Code (V of 1898), S. 417(2-A)— Qatl-i-amd, common intention—Appeal against acquittal—Respondent/acquitted accused had been named in the crime report with the role of inflicting hatchet blow on the head of deceased—Both the prosecution witnesses of ocular account had fully implicated the respondent-acquittal accused as one of the culprits of the occurrence—Record showed that no question was put to the prosecution witnesses regarding salient features of the prosecution version about the role played by respondent (acquitted accused) during the occurrence—Facts remained that injury ascribed to the respondent was corroborated from the post-mortem examination report as well as pictorial diagram available on record—During the course of investigation, the respondent (acquitted accused) was found guilty—Reasons advanced by Trial Court while discarding the prosecution evidence to the extent of respondent (acquitted accused) were nothing but a novel story, hence, the same could not be given any legal credence—Sufficient incriminating evidence was available on record to connect the acquitted accused-respondent with the occurrence, thus, he was liable to be convicted under the provision of S. 302(b), P.P.C.—In the crime report, the respondent had been ascribed single blow of hatchet on the back side of head of the deceased and had not repeated the same—On the same set of evidence, co-accused was acquitted of the charge and appeal filed against his acquittal had been withdrawn by complainant—Case of respondent fell within the ambit of mitigation, in circumstances—Appeal against acquittal was allowed, in circumstances and respondent was convicted under S. 302(b), P.P.C., and sentenced to undergo imprisonment for life.

Shamas-ud-Din v. Muhammad Shahbaz Qammar and 2 others 2009 SCMR 427; The State Through Advocate General NWFP, Peshawar v. Humayoun and others 2007 SCMR 1417; (1) Amal Sherin (2) Zahir Gul v. The State through against NWFP, Peshawar PLD 2004 SC 371; Muhammad Ali v. Muhammad Yaqoob and others 1998 SCMR 1814 and Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11 rel.

Aman Ullah Ranjha for Appellants (in Criminal Appeal No.1562 of 2013).

Haider Pasha, Defence Counsel for Appellants.

Abid Saqi, Imtiaz Noor Malik and Uzma Raziq Khan for Appellant (in Criminal Appeal No. 1562 of 2013).

Aman Ullah Ranjha for Respondents (in Criminal Appeal No.1562 of 2013).

Nisar Ahmed Virk, Deputy Prosecutor-General for the State.

Abid Saqi, Imtiaz Noor Malik and Uzma Raziq Khan for the Complainant.

Date of hearing: 17th December, 2018.

JUDGMENT

SAYYED MAZAHAR ALI AKBAR NAQVI, J.—Mumtaz alias Taja son of Sher Muhammad, caste Qureshi, resident of Kot Momin, District Sargodha, appellant, along with Khizar Hayat and Umer Hayat (both since acquitted) was involved in case FIR No.257/2010, dated 13.05.2010, offence under sections 302, 34, P.P.C., registered with Police Station Kot Momin, District Sargodha. He was tried by learned Additional Sessions Judge, Bhalwal under the afore-mentioned offences. Learned trial court seized with the matter in terms of judgment dated 30.09.2013 convicted and sentenced the appellant in the following terms:-

> Under section 302(b), P.P.C., sentenced to death as Ta’zir with direction to pay Rs.2,00,000/- as compensation to legal heirs of deceased in terms of section 544-A, Cr.P.C. and in case of default in payment thereof, to undergo S.I. for six months.

2. Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed his conviction and sentence through filing Criminal Appeal No.1380/2013 while learned trial court forwarded Murder Reference No.380/2013 for confirmation or otherwise of sentence of death inflicted upon the convict. The complainant filed Criminal Appeal No.1582/2013 against acquittal of Khizar Hayat and Umer Hayat/respondents; wherein vide order dated 28.02.2018 notice was issued against the respondents in the following terms:-

“2. At the very outset it has been argued by learned counsel for the appellant/complainant that while passing acquittal in favour of respondents Nos.2 and 3 the learned trial court has advanced flimsy grounds. While elaborating his argument learned counsel for the appellant has drawn our attention to the fact that according to contents of the crime report both respondents Nos.2 and 3 were ascribed specific injuries on the person of deceased, which are of large dimension and even were declared cause of death. It is vehemently argued that the learned trial court has advanced artificial reasoning to discard the prosecution evidence while extending benefit of doubt to the accused. Further contends that the conclusion drawn by the learned trial court to the extent of respondents Nos.2 and 3 is result of misreading and non-reading of material/evidence available on record, which is in gross/sheer violation of the dictum safe administration of criminal justice.

3. The contentions raised by learned counsel for the appellant require consideration.

4. Admit.”

However, today during the course of arguments learned counsel for the complainant stated that he would not press this appeal to the extent of Khizar Hayat/respondent, hence the same is dismissed as not pressed to his extent and the matter is live only to the extent of Umar Hayat/respondent. As all the matters are arising out of one and the same judgment of learned trial court, therefore, these are being disposed off through consolidated judgment.

3. Prosecution story as portrayed in the FIR (Exh.PF) lodged on the complaint of Amir Shehzad son of Fateh Muhammad, caste Qureshi (PW-6) is that the complainant is resident of Kot Momin and involved in Zamindara. On 13.05.2010 at about 1:15 p.m. the complainant along with his father Fateh Muhammad were sitting at their dara. All of sudden accused (1) Mumtaz alias Taja armed with hatchet, (2) Umar Hayat armed with hatchet and (3) Khizar Hayat empty handed, all sons of Sher Muhammad, Qureshi by caste and residents of the same village emerged there while raising lalkaras. Mumtaz alias Taja gave a hatchet blow which landed at the back side of head of father of the complainant while another hatchet blow given by Umar Hayat also landed at the back side of head. Due to fear the complainant didn’t step forward while on his raising hue and cry Muhammad Nawaz son of Boota, Khalid Mehmood son of Sultan Ali both Qureshi by caste and residents of the same village by witnessing the occurrence attracted to the spot. On seeing them the accused persons made their good escape. Father of the complainant had succumbed to the injuries at the spot.

Motive behind the occurrence as disclosed in the crime report was dispute over landed property. The complainant alleged that the accused had committed the occurrence on the abetment of Sikandar Hayat son of Sher Muhammad, which was overheard by Muhammad Nazeer son of Bati and Muhammad Riaz son of Boota. While leaving Muhammad Nawaz and Khalid Mehmood to safeguard the dead body the complainant reached police station and made his statement before Ahmed Yar, S.I. (PW-9), who chalked out formal FIR. Thereafter Investigating Officer along with other police officials visited the place of occurrence, prepared injury statement (Exh.PC), drafted inquest report (Exh.PD) and dispatched the dead body to mortuary under the escort of Nasar Iqbal 1128/C (PW-3). From the spot he also secured blood stained earth vide recovery memo Exh.PJ and prepared rough site plan of the place of occurrence (Exh.PK). After postmortem examination last worn clothes of the deceased qameez (P-1) and tehmad (P-2) were produced before the Investigating Officer, which were taken into possession vide recovery memo Exh.PE. Upon the direction of Investigating Officer and pointing out of PWs on 15.05.2010 Muhammad Hafeez, Draftsman (PW-5) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PF and Exh.PF/1), which was made part of the file. On 25.05.2010 Investigating Officer arrested the appellant and obtained his physical remand. During the course of interrogation in pursuance of disclosure on 02.06.2010, appellant led to the recovery of hatchet (P-3), which was taken into possession vide recovery memo Exh.PH. Investigating Officer also prepared rough site plan of the place of recovery (Exh.PH/1). It is pertinent to mention here that Umar Hayat/respondent was found innocent during the course of investigation.

4. As a result of investigation, the Investigating Officer prepared report under section 173, Cr.P.C. and sent the same to the court of Sessions en-routed through the Illaqa Magistrate as provided under section 190(2), Cr.P.C. Learned trial court formally charge sheeted the accused vide order dated 29.09.2010 to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as nine (9) prosecution witnesses.

5. Occular account in this case consists of the statements of Amir Shehzad (PW-6) and Muhammad Nawaz (PW-7). Nasar Iqbal C/1128 (PW-3) had escorted the dead body to mortuary while Muhammad Saleem, Draftsman (PW-5) prepared scaled site plan of the place of occurrence. Besides chalking out FIR, Ahmed Yar, S.I. (PW-09) had also conducted investigation in this case.

Dr. Kashif Rauf (PW-1) had conducted postmortem examination on the dead body of deceased and observed following injuries on his person:-

“1. An incised wound measuring 16 x 2 cm on right side of head 5 cm above right ear, with skull bone severely fractured and menings and brain matter coming out of the wound, menings torn.

2. An incised wound measuring 18 x 2 cm on posterior part of head with skull bone fractured and brain matter and menings coming out of it, 2-1/2 cm above injury No.1.”

After postmortem examination, doctor rendered the following opinion:-

“In my opinion death in this case occurred due to injury Nos.1 and 2 causing heavy damage to vital structures of brain plus massive haemorrhage leading to hypovoleumic shock and cardiopulmonary arrest and death, which is sufficient to cause death in ordinary course of nature.

Probable time elapsed between injury and death was sudden and between death and post mortem examination was about three hours.”

Statements of rest of the prosecution witnesses are formal in nature.

6. The appellant was examined under section 342, Cr.P.C., wherein he refuted the prosecution accusations levelled against him. He opted neither to appear as his own witness in terms of section 340(2), Cr.P.C. nor did he opt to adduce evidence in his defence. While replying to the question why this case against him and why the PWs deposed against him, appellant made the following deposition:-

“The PWs are closely related inter se, interested and inimical towards me and my co-accused. The PWs have involved me and my co-accused in the instant case due to suspicion in connivance with the local police because it is an admitted fact in the prosecution evidence that we have our business at Islamabad, while the complainant part have their business and belongings at Kot Momin. They are politically influential in the area and belong to ruling party. Due to these facts we have been roped in this case falsely with the ulterior motive of the prosecution.”

While replying to this specific question Umar Hayat/respondent made similar statement.

7. Learned trial court after evaluating the evidence available on record, found version of the prosecution proved beyond shadow of reasonable doubt against the appellant, which resulted into his conviction in the afore-stated terms, however, Umar Hayat/respondent was acquitted of the charge.

8. Learned counsel for the appellant while advancing his arguments submitted that the impugned judgment has been recorded by the learned trial court in a slipshod manner without adverting to real facts of the case and material brought forth on record. Learned counsel vehemently contended that story advanced by the prosecution is fake, baseless and concocted one while presence of the prosecution witnesses at the place of occurrence at the relevant time is highly doubtful. Further contended that even Amir Shehzad (PW-6)/complainant is son of the complainant and if his presence is admitted at the place of occurrence, his conduct is highly passive as he didn’t make any effort to rescue his father. Next submitted that Muhammad Nawaz (PW-7) is resident of a place 2-KMs away from the place of occurrence. It was argued that statements of both the prosecution witnesses of the occular account are inconsistent on salient features of the prosecution version, who made statements being closely related to the deceased. Moreover, statement of daughter of the deceased recorded under section 161, Cr.P.C. (Exh.DA) also shatters the prosecution version regarding presence of the PWs. Next submitted that occular account is belied by medical evidence as doctor while conducting postmortem examination opined that the injuries could be result of one stroke of sharp edged weapon. Further argued that there is absolutely no evidence with regard to motive. It was next argued that on the same set of evidence, two co-accused were acquitted of the charge, hence conviction and sentence passed by the learned trial court against the appellant is not sustainable in the eyes of law.

While arguing Criminal Appeal No.1562/2013 on behalf of Umar Hayat/respondent it was argued that although he is named in the crime report with the role of inflicting injury on the person of deceased, however, according to doctor the injuries could be result of one blow, which is further supplemented from the fact that during the course of investigation nothing was recovered on his pointing out. In absence of any cogent material available on record against the respondent, it was argued on his behalf that learned trial court was rightly justified in acquitting him of the charge.

9. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant. Learned counsel for the complainant contended that it was a daylight occurrence; wherein the appellant is duly named with his specific role. Further contended that the complainant is son of the deceased, hence his presence at the dera along with his father is quite natural while his statement was supplemented by Muhammad Nawaz (PW-7). It was argued that both the prosecution witnesses fully supported the prosecution case on minute details and no question was put to them regarding salient features during the course of cross-examination. Next submitted that medical evidence is in line with the occular account while the statement of the doctor to the effect that injuries could be result of one blow is nothing but an obliging concession, which does not lend support from independent facts and circumstances. Learned counsel submitted that during the course of investigation hatchet (P-3) was recovered from the appellant. Further contended that the appellant had committed the occurrence with strong motive, who was also found guilty during the course of investigation and his name was placed in column No.3 of the report prepared under section 173, Cr.P.C. It was finally argued that the prosecution proved its case through leading cogent and confidence inspiring evidence; therefore, learned trial court was rightly justified in inflicting normal penalty of death provided under the law upon the appellant.

While arguing Criminal Appeal No.1562/2013 learned counsel for the appellant/complainant contended that Umar Hayat/respondent is duly named in the crime report with his specific role of inflicting hatchet blow on the back side of head of the deceased. Further contended that both the prosecution witnesses fully established case against the respondent on minute details. It was next argued that obliging concession given by the doctor regarding injuries on the person of deceased is not corroborated from any material, therefore, learned trial court was not justified in acquitting him of the charge. Lastly it was argued that keeping in view the material available on record against the respondent; he is liable to be convicted under the relevant provisions of law.

10. We have heard the arguments advanced by learned counsel for the appellant, learned counsel for the complainant, as well as, learned Deputy Prosecutor General and gone through the record available on file with their able assistance.

11. It is an established principle of law that each criminal case has its own peculiar facts and circumstances and the same hardly coincide with each other. It is very unfortunate occurrence in which father of the complainant was done to death when he was sitting in his dera. There is no denial to the fact that it was a daylight occurrence, which as per prosecution version had taken place on 13.05.2010 at 1:15 p.m. while the same was report to the police with quite promptitude at 2:00 p.m. whereas inter se distance between the place of occurrence and the Police Station is 1-KM. According to prosecution version soon after the occurrence, the complainant reached Police Station where on his statement the FIR was chalked out wherein the appellant is duly named with his specific role. Prosecution in order to establish its case had led evidence qua occular account, medical evidence, motive, recovery of hatchet, as well as, investigation.

12. Occular account in this case consists of the statement of Amir Shehzad, complainant, who happens to be son of the deceased who appeared during the course of trial as PW-6 while his statement is supplemented by Muhammad Nawaz (PW-7). As far as presence of the prosecution witnesses of ocular account at the place of occurrence at the relevant time is concerned, the complainant being son of the deceased, his presence at his dera along with his father seems to be quite natural. Muhammad Nawaz (PW-7) is mamoo of the complainant, who had attracted to the spot on hearing hue and cry. While making their statements both the prosecution witnesses, in categorical terms, stated that the appellant along with other assailants had reached the place of occurrence while armed with hatchet, who inflicted blow at the back side of head of the deceased. Careful scrutiny of statements of both the prosecution witnesses of ocular account reflects that they remained unanimous qua the date, time, mode and manner of occurrence. The pen-picture of the occurrence coming out of statements of the prosecution witnesses of ocular account straightway rings true and seems to be next to natural. The most astonishing aspect of the case is that during the course of cross-examination not a single question was put to the prosecution witnesses regarding the salient features of the prosecution version in order to create any sort of dent in the credibility of their testimony.

Although learned counsel for the complainant had urged that prosecution witnesses are closely related to the deceased but it has been the consistent view of the superior courts of the country that mere close relationship of the witnesses with deceased would not discard their testimony if otherwise the same is trust worthy, confidence inspiring and appealing to reason while corroborated by independent circumstances as has happened in the case in hand. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Ijaz Ahmad v. The State (2009 SCMR 99) and Talib Hussain and others v. The State and others (2009 SCMR 825).

As far as contention of learned counsel for the appellant regarding statement of Mst. Moquddas daughter of the deceased recorded under section 161, Cr.P.C. is concerned admittedly contents of the same were not confronted to the prosecution witnesses during their cross-examination, hence, the same cannot be given any legal sanctity.

13. As far as medical evidence in this case is concerned Dr. Kashif Rauf (PW-1) had conducted postmortem examination over the dead body of deceased and observed two injuries on the back side of his head. Moreover, the postmortem examination was conducted within three hours, which itself rules out the possibility of any fabrication. Perusal of statement of the doctor reflects that although during the course of cross-examination he stated that both injuries could be result of one stroke of sharp edged weapon, however, fact remains that both the injuries were independent wounds with dimension of 16 x 2 cm and 18 x 2 cm with a distance of 2-1/2 cm from each other, hence, such opinion of the doctor at the most could be termed as an obliging concession without any legal backing. Moreover, according to doctor the injury ascribed to the appellant proved fatal.

14. As per prosecution version at the time of spot inspection, Investigating Officer had secured blood stained earth where the deceased had received injuries, which was dispatched to the offices of Chemical Examiner and Serologist and as per reports of the quarter concerned (Exh.PM and Exh.PN), its origin was determined to be human blood. Fact also remains that during the course of investigation hatchet (P-3) was recovered from the appellant.

15. The nutshell of the above mentioned facts and circumstances is that the prosecution has proved its case against the appellant through leading cogent evidence in the shape of occular account, which is straightforward, confidence inspiring and coming from the mouth of most natural witnesses. Medical evidence is in line with the ocular account with regard to locale/seat of injury at the person of the deceased ascribed to the appellant coupled with the fact that during the course of investigation having been found guilty, name of the appellant was placed in column No.3 of the report prepared under section 173, Cr.P.C., which prompted this Court to arrive at the conclusion that prosecution had proved its case against the appellant beyond reasonable doubt.

16. Now we take up the case of Umar Hayat/respondent in Criminal Appeal No.1562/2013, who was acquitted of the charge by learned trial court. Before recording our observations with regard to merits of the case to his extent, this Court is conscious of the fact that scope to interfere in the judgment of acquittal is narrow one and ordinarily the superior courts do not interfere in the judgment of acquittal because of the well established principle of law that once acquittal has been recorded, the presumption of innocence becomes double in favour of the accused, however, there is exception to this salutary principle, which has been exercised by the superior courts so many times whenever they come to a definite conclusion that the findings rendered by the trial court are artificial, capricious and do not meet the principles of evaluation of the evidence/material available on record, in the interest of safe administration of justice. In the instant case according to contents of the crime report, Umar Hayat/respondent has been named with the role of inflicting a hatchet blow on the head of Fateh Muhammad deceased. Both the prosecution witnesses of occular account while appearing in the witness-box fully implicated the respondent as one of the culprits of the occurrence. The most important aspect of the case, as we have discussed earlier, is that during the course of cross-examination not a single question was put to the prosecution witnesses regarding salient features of the prosecution version qua the role played by the respondent during the occurrence. Fact also remains that injury ascribed to the respondent is corroborated from the postmortem examination report, as well as, pictorial diagram available on record. Nevertheless the doctor while replying to a question during the course of cross-examination had stated that both injuries on the person of deceased could be result of one stroke of sharp edged weapon, however, perusal of record available on file reflects that both the injuries are independent wounds having dimension of 16 x 2 cm and 18 x 2 cm with a distance of 2-1/2 cm from each other. Hence, in no way it could be caused by one blow of a sharp edged weapon. Moreover, according to doctor both injuries Nos.1 and 2 resulted into death of the deceased. Fact also remains that during the course of investigation the respondent was found guilty and his name was placed in column No.3 of the report prepared under section 173, Cr.P.C. In these circumstances the reasons advanced by learned trial court while discarding the prosecution evidence to the extent of respondent are nothing but a novel story, hence, the same cannot be given any legal credence.

17. For what has been discussed above there is sufficient incriminating evidence available on record to connect the respondent with the occurrence. Hence, while seeking guidance from the judgments rendered by august Supreme Court of Pakistan in the cases of Shamas-Ud-Din v. Muhammad Shahbaz Qammar and 2 others (2009 SCMR 427), The State through Advocate General NWFP, Peshawar v. Humayoun and others (2007 SCMR 1417), (1) Amal Sherin (2) Zahir Gul v. The State through against NWFP, Peshawar (PLD 2004 SC 371), Muhammad Ali v. Muhammad Yaqoob and others (1998 SCMR 1814) and Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 Supreme Court 11), we have been persuaded to hold that the respondent is liable to be convicted under the provisions of section 302(b), P.P.C.

18. Now the question of pivotal importance to be determined by this Court is that what would be the quantum of sentence in the given circumstances. Perusal of record reveals that in the crime report the appellant, as well as, respondent have been ascribed single blow of hatchet on the back side of head of the deceased and none of them is stated to have repeated the same. Fact also remains that on the same set of evidence Khizar Hayat accused was acquitted of the charge and appeal filed against his acquittal has also been withdrawn by learned counsel for the complainant. Moreover, nothing was recovered from the Umar Hayat/respondent during the course of investigation.

19. When all these facts when put side by side create dents in the authenticity of the prosecution version to some extent persuading this Court to believe that the case of appellant and respondent, falls within the ambit of mitigation. In its ratio decidendi of august Supreme Court of Pakistan in the case of Israr Ali v. The State (2007 SCMR 525), it was also held that:-

“—Sentence, quantum of—Principle—Question of sentence demanded utmost care on the part of court dealing with life and liberties of people—Accused persons are also entitled to extenuating benefit of doubt on the question of sentence.”

20. Apart from this principle, which is based upon the principle of expectancy of life, this Court is also appraised of the fact that punishment provided under section 302(b), P.P.C., as Ta’zir relates to death or imprisonment for life. Both the sentences are available under this head but the circumstances are not spelled out in section 302(b), P.P.C., in which either of the two punishments can be awarded. In a celebrated judgment of august Supreme Court of Pakistan in the case of Muhammad Sharif v. The State (PLD 2009 Supreme Court 709) similar question was elaborated as under:-

“It has been seen and observed from the perusal of the various proceedings in relation to section 302 of P.P.C. in particular its clause (b), that there is a choice and discretion left with the Court to inflict punishment “with death or imprisonment for life as tazir having regard to the facts and circumstances of the case.”

21. For the foregoing reasons, Criminal Appeal No.1380/2013 filed by the appellant stands dismissed with modification in his sentence from death to imprisonment for life under section 302(b), P.P.C., as Ta’zir. However, the burden of compensation in terms of section 544-A, Cr.P.C. as imposed by the learned trial court and the effect in failure thereof shall remain intact. Umar Hayat/respondent is convicted under section 302(b), P.P.C., and sentenced to undergo imprisonment for life. He is also burdened to pay Rs.2,00,000/- as compensation to legal heirs of deceased in terms of section 544-A, Cr.P.C. and in case of default in payment thereof, to further undergo S.I. for six months. Benefit of section 382-B, Cr.P.C, however is extended in favour of the appellant, as well as, the respondent.

22. Murder Reference No.380/2013 forwarded by the learned trial court in terms of section 374, Cr.P.C. for confirmation of death sentence inflicted upon Mumtaz alias Taja/convict fails, which is answered in negative. Death sentence is not confirmed.

JK/M-6/L Order accordingly.

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