Confirmation Case No. 01 of 2009
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Present
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Mr. Justice Faisal Arab Mr. Justice Aqeel Ahmed Abbasi. |
Criminal Appeal No. 59 of 2009
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Appellant |
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Asghar Hussain son of Muhammad Hussain |
Criminal Appeal No. 60 of 2009
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Appellant |
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Muhammad Hussain alias Chairman son of Muhammad Ismail
Through: M/s. Nadeem Khalid and Ali Jafar, advocates |
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Versus |
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Respondent |
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The State
Through Ms. Rehana Akhtar, Additional Prosecutor General Sindh & Mr. Muhammad Tariq Ahmed, advocate for the complainant |
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Date of Short Order |
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19.01.2012 |
J U D G M E N T
Aqeel Ahmed Abbasi, J. Through this common judgment, we will dispose of the aforesaid appeals/confirmation case in respect of the appellants, namely, Asghar Hussain son of Muhammad Hussain and Muhammad Hussain alias Chairman son of Muhammad Ismail as the same are filed against common judgment and arise from same crime.
2. Being aggrieved and dissatisfied by judgment dated 31.03.2009 passed by the learned IVth Additional Sessions Judge, Karachi (East) in Sessions Case No. 140/2004, arising from FIR No. 31/2004 registered under Section 302/109 PPC at Police Station Zaman Town, Karachi whereby the appellant, namely, Asghar Hussain son of Muhammad Hussain was convicted under Section 302 PPC and sentenced to death as Qisas to be hanged by his neck till his death and further fine of Rs.50,000/- was imposed, whereas half of the same was directed to be given to the legal heirs of deceased Muhammad Waseem as compensation provided under Section 544-A Cr.P.C. and in case of non-payment of fine, the appellant, namely, Asghar Hussain was directed to undergo R.I. for one year more, whereas, the appellant, namely, Muhammad Hussain alias Chairman son of Muhammad Ismail was also convicted under Section 302/109 PPC for having committed offence of qatl-i-amd liable to qisas and was sentenced to imprisonment for life. Benefit under Section 382-B Cr.P.C. has been extended to the appellant. Both the appellants have preferred appeals under Section 410 Cr.P.C. against their conviction.
3. Prosecution case as disclosed in the FIR is as follows:
“In Jinnah Hospital, Emergency Ward, the statement of Mohammad Nadeem S/o Wali Mohammad Abbassi age 28 years, R/o H. No. 540, Ghous Pak Road, Korangi, Karachi was recorded as under:-
I am living on the above address along with parents and five brothers and working as Plumber in Mill Area. My younger brother Mohammad Waseem aged 18 years and Mohammad Irshad, Mohammad Naeem and Mohammad Azeem were present at Faraz Public Call Office at 7.45 p.m. when all of a sudden Asghar Hussain S/o Mohammad Hussain alias Chairman entered in P.C.O. and caught hold my brother Waseem from his hairs and said that you are lover of my sister Saima and immediately fired from a pistol he was holding in his hand at his chest. My brother Waseem fall down and Asghar made good his escape firing in air. I alongwith my above named companions took my injured brother in a taxi to Sindh Government Hospital, Korangi No. Five and half and later while bringing him to Jinnah Hospital, he scumbed to his injury. About two three days ago Muhammad Hussain Chairman came to our house and had threatened my brother Waseem and us that if Waseem did not leave following my daughter Saima then he will see his fate within two three days. My brother Waseem replied that Chairman Sahab you are having some misunderstanding. There is no such happening. Today my brother Waseem has been killed by accused Asghar Hussain S/o Mohammad Hussain alias Chairman with the planning and program of his father Mohammad Hussain due to personal enmity by firing from pistol I am submitting report. Action be taken”.
4. After investigation, police submitted final Charge Sheet No. 31/2004 dated 04.03.2004, wherein appellants Asghar Hussain son of Muhammad Hussain and Muhammad Hussain alias Chairman son of Muhammad Islamil, both residents of House No. H/524, Korangi 100 Quarters, Karachi were shown in custody, whereas list of 19 persons as prosecution witnesses was also filed. Charge was framed on 08.07.2004 against the appellants, to which they pleaded not guilty and claimed trial.
5. Record shows that out of 19 witnesses, which were cited in Column No. 6 of the Charge Sheet, the prosecution examined 10 witnesses including the complainant and three other eye witnesses of the alleged incident, whereas one eye witness was not examined by the prosecution on the ground that he will not support the prosecution case.
6. The learned trial Court, in view of the statement of the prosecution witnesses and material placed on record, convicted both the appellants. Asghar Hussain son of Muhammad Hussain was convicted under Section 302 PPC and sentenced to death, whereas the appellant, namely, Muhammad Hussain alias Chairman son of Muhammad Ismail has been convicted under Section 302/109 PPC and sentenced for life imprisonment.
7. Learned counsel for the appellants while presenting the case of the appellant, namely, Asghar Hussain, has vehemently argued that the learned trial Court while awarding major penalty of death to the appellant, failed to appreciate that in the absence of any direct independent eye witness of alleged crime and failure on the part of prosecution to establish motive, the benefit of doubt was required to be extended to the appellant, which the learned trial Court failed to extend to the appellant in the instant case without assigning any valid reasons.
It has further been contended by the learned counsel that the alleged eye witnesses of the incident are all closely related, hence, they were interested witnesses, therefore, their testimony could not be considered as free from doubt, whereas, awarding major penalty of death to the appellant under the facts and circumstances of this case was not justified. Learned counsel further argued that the prosecution has failed to associate the owners of the premises in which P.C.O. was being run, wherein the alleged incident took place, nor they have associated any independent witnesses of the locality, which is a thickly populated area, while preparing mashirnama and memo of arrest, hence violated the provision of Section 103 Cr.P.C. It has been contended by the learned counsel for the appellant that the appellant, namely, Asghar Hussain is a young boy of 24 years, who has no previous criminal history and has been roped by the complainant party falsely in the instant crime. Learned counsel further argued that out of 19 witnesses cited by the prosecution in the challan, only 10 were examined, whereas out of 5 alleged eye witnesses, the only independent private witness, namely, Irshad Adil was dropped by the prosecution on the allegation that he is not supporting the case of prosecution, whereas, the remaining eye witnesses of the alleged incident, namely, Muhammad Nadeem (complainant / PW-1), Muhammad Naeem (PW-2) are real brothers of the deceased, Muhammad Azeem (PW-3) is nephew of the deceased and Muhammad Aslam (PW-4) is brother-in-law of the deceased, hence all are interested witnesses. Per learned counsel, these witnesses were not present at the time of incident, whereas, their evidence is full of contradictions and manipulation. It has been further argued by the learned counsel for the appellant that the prosecution could not establish the motive to commit the alleged crime of murder, whereas, none of the prosecution witness has said a single word about the alleged motive, as suggested in the FIR by the complainant. It has been contended by the learned counsel that the I.O. did not prepare the sketch of the place of incident, which was prepared by another prosecution witness, nor the I.O. prepared memo of recovery of articles from site. While concluding his argument, learned counsel submitted that the version of prosecution witnesses is full of contradictions, whereas there were several lacunas on the part of the prosecution, while conducting investigation, which was fatal to the case, hence created serious doubts in the prosecution story, therefore, learned trial Court was required to extend the benefit of doubt to the appellant, which has been declined in the instant case without any lawful excuse. It has been prayed by the learned counsel that both the appellants are innocent, whereas the prosecution has miserably failed to establish their case without reasonable doubts against the appellants, therefore, the impugned conviction and sentence may be set-aside and the appellants may be acquitted from charges.
8. While making submissions on behalf of the appellant, namely, Muhammad Hussain alias Chairman son of Muhammad Ismail, it has been contended by the learned counsel that on the face of the record as well as from perusal of the prosecution witnesses, it is clear that no active role has been assigned to the appellant, namely, Muhammad Hussain alias Chairman, which may connect him with the alleged murder. Per learned counsel, none of the prosecution witness has deposed against the appellant, namely, Muhammad Hussain alias Chairman, whereas no incriminating material has been produced by the prosecution against the present appellant, who is the father of the appellant Asghar Hussain and has been falsely roped in the instant crime alongwith his son Asghar Hussain with malafide intention and to injur the entire family of the appellants. Per learned counsel, only allegation against the appellant in the FIR is that he had earlier warned the deceased, namely, Muhammad Waseem from following his daughter, however, neither any prosecution witness has supported this version of the complainant nor any material or evidence has been produced in Court, which may suggest that the present appellant, namely, Muhammad Hussain either instigated the appellant, namely, Asghar Hussain, or prepared any conspiracy to commit murder of deceased Muhammad Waseem. It is further contended by the learned counsel that neither the appellant Muhammad Hussain was present at the place of alleged incident nor any recovery of weapon or empties has been affected from him. Per learned counsel, the case against appellant Muhammad Hussain alias Chairman is a case of no evidence, hence, the learned trial Court was required to acquit the appellant in the instant crime by extending benefit of doubt, which has not been extended to the appellant without any legal and factual justification. It has been prayed that the appellant may be acquitted in the alleged crime by setting-aside his conviction and sentence, whereby he has been sentenced for life imprisonment and the appellant may be directed to be released. In support of his contention, the learned counsel for the appellant has placed reliance in the following reported cases:-
(1) Muhammad Aslam Vs. Muhammad Shafique and 3 others (2005 SCMR 1507); (2) Sikandar Vs. State (PLD 1963 SC 17); (3) Wazir Muhammad Vs. The State (1992 SCMR 1134); (4) Wali Muhammad Vs. Nawab and others (1984 SCMR 914); (5) Furqan Hyder alias Taj Vs. The State PLJ 1984 Cr.C. (Kar) 316; & (6) Federation of Pakistan Vs. Gul Hasan Khan (PLD 1989 SC 633)
9. On the other hand, learned counsel for the complainant has supported the impugned judgment passed by the learned trial Court against the aforesaid appellants and submitted that the appellant Asghar Hussain has committed murder of the brother of complainant, namely, Muhammad Waseem in front of eye witnesses, who have deposed against him, whereas there, is no contradiction in prosecution witnesses in this regard. Per learned counsel, recovery of alleged weapon has also been affected from possession of the appellant, namely, Asghar Hussain, whereas ocular evidence is duly corroborated by the medical evidence produced in the instant case. It has been contended by the learned counsel that in addition to the aforesaid ocular as well as medical evidence, prosecution has also established the motive to commit such offence by the appellant, namely, Asghar Hussain. Per learned counsel, is has come on record that both the appellants, namely, Asghar Hussain and Muhammad Hussain, who are brother and father of Mst. Saima, were seriously annoyed and infuriated on account of love affair of the deceased Muhammad Waseem with their sister/daughter and eventually committed his murder under such rage. It has been contended by the learned counsel that the prosecution has established its case without any reasonable doubt against both the appellants, whereas, the testimony of the eye witnesses, remained unshaken during cross-examination, therefore, the impugned judgment does not require any interference by this Court. Hence, the appeals filed by the appellants may be dismissed and the confirmation reference against the appellant, namely, Asghar Hussain may be approved.
10. Learned APG also supported the impugned judgment passed against the appellants in the aforesaid case and adopted the arguments advanced by the learned counsel for the complainant.
11. We have heard both the learned counsel and the learned State Counsel, perused the impugned judgment and examined the evidence produced by the prosecution in the instant case. Record shows that the prosecution, out of 19 witnesses as shown in the challan, examined 10 witnesses, including complainant and three eye witnesses of the alleged incident and the I.O. of the case. PW-1, complainant, namely, Muhammad Nadeem, who is the real brother of deceased, namely, Muhammad Waseem has deposed that on 30th March 2004 at about 7.45 p.m., while he was sitting alongwith deceased brother in PCO, which is situated in Korangi 100 Quarters, Karachi, both the appellants Asghar Hussain and Muhammad Hussain alias Chairman came there. Appellant Asghar Hussain came forward and caught hold of his deceased brother, namely, Muhammad Waseem from his hair and said that since he is paramour of his sister Saima, he will not spare him and thereafter appellant Asghar Hussain shot a direct fire with his pistol on the chest of his deceased brother, who fell down, and both the appellants, by making firing fled away from the scene. The injured was taken to Sindh Government Hospital, Korangi No. 5, Karachi in the taxi but did not provide treatment to the injured and advised to take his brother to JPMC as it was a police case. Thereafter they took the injured in Edhi Ambulance to JPMC, however, the injured succumbed to the arm injury in way to JPMC and died. In his cross-examination, his testimony with regard to the incident and the role of Asghar Hussain for having caused a firearm injury with his pistol to deceased Muhammad Waseem remained unshaken. However, he could not properly explain the contradiction in the FIR and his statement on oath regarding presence of appellant, namely, Muhammad Hussain alias Chairman at the place of incident and his role in the alleged crime, nor his testimony could properly establish the motive of the crime.
12. PW-2, Muhammad Naeem, the real brother of complainant as well as of the deceased also narrated similar facts as stated by the complainant Muhammad Nadeem and has given detail of the incident. In his cross-examination, his testimony also could not be unshaken with regard to the alleged incident and the role of the appellant, namely, Asghar Hussain for having caused firearm injury from his pistol to the deceased.
13. PW-3, Muhammad Azeem, nephew of the deceased, namely, Muhammad Waseem, in his deposition also narrated similar facts as stated by the PW-1 and PW-2 and assigned the same role to both the appellants, which was assigned by PW-1 and PW-2 in their statement on oath. However, with one contradiction that instead of appellant Asghar Hussain, according to him, the appellant Muhammad Hussain alias Chairman caught hold of deceased Muhammad Waseem from his hairs and threatened deceased Muhammad Waseem that he will not spare him as he is teasing his daughter, whereafter Asghar Hussain shot bullet fire at Muhamamd Waseem at his chest.
14. PW-4, Muhammad Aslam, brother-in-law of complainant and deceased deposed that at the time of incident, he was going to bring medicine from Dr. Jibran and in the meanwhile, he heard sound of fire shot, whereafter, he reached at the place from where sound of fire shot came and he saw a young man holding a pistol in his hand and was running away. When he reached at the spot, he saw a mob of persons gathered around and also saw that an injured person was being taken in rickshaw and thereafter he left the place and subsequently came to know that injured succumbed to injury and died. In his cross-examination, though he could not reconcile the contradiction in facts as stated on oath and the facts, as stated in the statement under Section 161 Cr.P.C., however, remained unshaken as regards the time and place of the incident and the death of deceased, namely, Muhammad Waseem due to firearm injury on the fateful day.
15. PW-5, Dr. Abdul Razzaque deposed that on 04.03.2004, he was posted as MLO at JPMC, Karachi when he received dead body of Muhammad Waseem aged about 18 to 20 years. He conducted the post mortem of the dead body of Muhammad Waseem, who sustained only one firearm injury 1 c.m. x 1 c.m. right lower chest (right hyop chordrium), on examination margins inverted, blackening found at wound of entry. He opined that death was caused due to cardio respiratory failure due to shock and hemorrhage resulting from firearm. He prepared post-mortem report vide PM No. 121/2004, which was produced as Exhibit 7-A. In his cross-examination, his testimony and the medical report regarding cause of death of deceased remained unshaken.
16. PW-6, PC Muhammad Khan and PW-7, ASI Syed Hamid Ali, both have deposed that on 04.03.2004, they were posted at Police Station Zaman Town, Karachi, while performing their duties from 8 p.m. to 8 a.m. in the morning. They have deposed that while patrolling at about 1.35 a.m. when they reached at House No. H/524, Korangi 5, they noticed that two persons who on their seeing them attempted to run away. They chased them, surrendered and apprehended them, who disclosed their names as Asghar Hussain and Muhammad Hussain alias Chairman, whereas, from personal search of appellant Asghar Hussain, a 30 bore pistol No. 32123 was recovered from the right side pocket of his shirt alongwith two live rounds. They further disclosed that on inquiry, the appellant Asghar Hussain has disclosed that he has killed from that pistol in Crime No. 31/2004 registered at Police Station Zaman Town. Thereafter, case was registered under Section 13-D of the Arms Ordinance and the pistol alongwith two live rounds were sealed at the spot and mashirnama of arrest and recovery was prepared. In their cross-examination, their testimony could not be shattered by the counsel for the appellants regarding the arrest of the appellants and recovery of the pistol and two live rounds from the possession of the appellant Asghar Hussain.
17. PW-8, SIP Karim Bux deposed that on 03.03.2004, he was posted as Sub-Inspector at Police Station Zaman Town and was performing his duties from 8 p.m. to 8 a.m. in the morning. At about 8.30 p.m. entry was received from MLO Dr. Abdul Razzaque Bhatti of JPMC. He proceeded towards JPMC and handed over the letter to Medical Officer for inspection of a dead body. He prepared memo of inspection of dead body by associating mashirs, namely, Naeem and Ghayasuddin and obtained their signatures on the mashirnama. He also prepared report under Section 174 Cr.P.C. and obtained the signatures of the mashirs. Thereafter, he recorded statement of complainant under Section 154 Cr.P.C. and sent the statement of complainant to PC Wahid Sheikh. He wrote a letter to the MLO for conducting post-mortem. He also produced relevant exhibits in this regard before the learned trial Court during his deposition. In his cross-examination, his testimony could not be shaken by the counsel for the appellant.
18. PW-9, SIP Farhaj Bukhari deposed that he was posted at Criminal District Division as Examiner of Firearms. On 24.03.2004, he received case property of FIR No. 31/2004 under Section 302 PPC of Police Station Zaman Town from SSP Investigation, Zone-1 for examination purpose. They received three parcels in which one 30 bore pistol No. 32123 alongwith magazine, in parcel No. 2 one 30 bore mutilated bullets and five live cartridges for test purpose. He examined the same and opined that the crime empty was fired from the above mentioned pistol, who also produced relevant exhibits during his deposition before the learned trial Court. In his cross-examination, his deposition could not be shaken by the counsel for the appellant.
19. PS-10, SIP Aziz Muhammad, the Investigating Officer of the case, during his deposition has produced the relevant exhibits, which were gathered and prepared by him during investigation of FIR No. 31/2004 registered under Section 302/109 PPC and FIR No. 32/2004, registered under Section 13-D of Arms Ordinance and narrated the chronology of the incident of murder of deceased Muhammad Waseem on fateful date. He has deposed that the ocular evidence as well as medical evidence duly corroborate each other and establish that the appellant Asghar Hussain caused a firearm injury at the chest of deceased Muhammad Waseem which caused his death, whereas appellant Muhammad Hussain alias Chairman acted in connivance with the appellant Asghar Hussain in the alleged crime. He has also stated that the death of the deceased, namely, Muhammad Waseem occurred due to cardio respiratory failure due to shock and hemorrhage by the firearm.
20. From perusal of the evidence of prosecution witnesses, it is seen that all the prosecution witnesses have deposed that the deceased, namely, Muhammad Waseem had expired as a result of the alleged incident and died un-natural death. Testimony of the three eye witnesses against the appellant, namely, Asghar Hussain for having committed murder of deceased Muhammad Waseem by causing firearm injury from pistol, is duly corroborated by the medical evidence and the post-mortem report of the deceased, namely, Muhammad Waseem, hence can not be brushed aside on the plea that they being close relatives of the deceased, are interested witnesses. Moreover, it is noted that in the cross-examination, their testimony with regard to incident and the active role of Asghar Hussain for having committed murder of the deceased by causing firearm injury in his chest could not be shaken. Crime empty was recovered from the place of occurrence, whereas one 30 bore pistol was also recovered from the possession of the appellant Asghar Hussain. The post-mortem report supports the version of the three eye witnesses. Firearm Expert’s report also suggests that crime empty was fired from the pistol, which was recovered from the possession of appellant Asghar Hussain. Keeping in view herein above facts and after examination the ocular as well as medical evidence produced by the prosecution in the instant case, we are of the opinion that the ocular evidence is duly corroborated by medical evidence and has sufficiently established the case of prosecution against the appellant, namely, Asghar Hussain for having fired a shot from pistol at the chest of deceased, namely, Muhammad Waseem, which caused his death. We may observe that the learned trial Court, while recording his conviction against the appellant Asghar Hussain son of Muhammad Hussain, has examined in detail the entire ocular as well medical evidence produced by the prosecution and did not commit any error or illegality, nor such finding is based on misreading or non-reading of the evidence, therefore, does not require any interference by this Court. However, while awarding conviction to the appellant on the charges of murder under Section 302 PPC and sentencing him to death, the learned trial Court could not properly appreciate the peculiar circumstance, under which, the appellant Asghar Hussain committed such offence nor recorded any finding regarding motive of the crime. Record shows that the appellant Asghar Hussain is an uneducated young boy of humble background, who was confronted with a situation, wherein his sister was being teased by deceased, namely, Muhammad Waseem. No evidence, whatsoever, has been produced by the prosecution before the learned trial Court which may suggest that either there was any previous enmity between the appellants and the deceased, namely, Muhammad Waseem, or there was any premeditation on the part of the appellant or preparation to commit the murder of the deceased, except a sudden provocation, which was on account of teasing and annoyance of his sister by the deceased, namely, Muhammad Waseem. We have noticed that the appellant had nursed no motive against the deceased and there was no background of ill will or animosity between the appellants and the deceased. It can well be imagined that the appellant, who is an uneducated young boy of humble background could have flared up and felt infuriated after having come to know that someone is teasing and annoying his sister and took it as a serious insult, humiliation and injury to the honour of his entire family.
21. In this view of the matter, realizing the possible state of mind of the appellant Asghar Hussain at the time of occurrence of the incident and the lack of premeditation ill will or animosity on his part, we are of the opinion that the appellant, who is a young boy and has no previous criminal history, could not have been awarded sentence of death under the facts and circumstances of this case.
Reference in this regard can be placed in the cases of Asghar Ali Vs. The State reported in 1999 MLD 562 and Muhammad Iqbal Vs. The State reported in 1998 PCrLJ 1862, wherein the Hon’ble Supreme Court, under similar circumstances, by maintaining the conviction, modified the sentence of death to life imprisonment.
22. For the aforesaid reasons, we dismissed this appeal against the appellant Asghar Hussain son of Muhammad Hussain to the extent of his conviction under Section 302 PPC, but the sentence of death awarded to the appellant Asghar Hussain was reduced from death sentence to life imprisonment under Section 302(B) PPC vide our short order dated 19.01.2012 and these are the reasons for short such order.
23. Accordingly, since the sentence of death passed against the appellant Asghar Hussain has been converted into imprisonment for life, therefore, the Confirmation Reference No. 01/2009 is answered in negative and death sentence to the appellant, namely, Asghar Hussain son of Muhammad Hussain is not confirmed.
24. As regards appeal in respect of the appellant, namely, Muhammad Hussain alias Chairman son of Muhammad Islamil against his conviction under Section 302/109 PPC and sentence to life imprisonment, we have observed that his name neither has been mentioned in the FIR nor any active role was assigned which may connect him with the alleged crime. It is further noted that even his presence at the place of incident was not disclosed by the complainant in the FIR. The complainant, his brother and nephew in their deposition, for the first time, have mentioned the name of the appellant, namely, Muhammad Hussain alias Chairman son of Muhammad Ismail alongwith principal accused/appellant, namely, Asghar Hussain, however, no active role in the commission of the alleged offence has been assigned to the appellant. The only allegation against him is that he was associated with the appellant Asghar Hussain, while committing murder of deceased Muhammad Waseem, as he has accompanied him at the place of incident. No evidence or material whatsoever, has been produced by the prosecution before the learned trial Court, which could establish that either the appellant Muhammad Hussain alias Chairman has played any active role in the commission of the alleged offence or he had any common intention alongwith principal accused, namely, Asghar Hussain, to commit such offence. Even the ocular evidence of the complainant, his brother and nephew in this regard, besides being contradictory, is not confidence inspiring for the reasons, that during cross-examination, the complainant could not explain the contradiction in the contents of FIR and his deposition regarding presence of the appellant Muhammad Hussain alias Chairman alongwith appellant Asghar Hussain at the place of alleged incident. He has merely stated that on account of confusion, he could not mention the name of the appellant Muhammad Hussain alias Chairman and his role in the alleged crime, while recording FIR. No incriminating material against the appellant Muhammad Hussain alias Chairman, which may corroborate ocular evidence int his regard has been produced by the prosecution before the learned trial Court. Learned trial Court has failed to record any finding with regard to common intention or connivance of the appellant Muhammad Hussain alias Chairman with the principal accused, namely, Asghar Hussain.
25. We are of the opinion that the conviction and sentence awarded to the appellant, namely, Muhammad Hussain by the learned trial Court is based on mere assumptions, whereas the prosecution has failed to establish their case against the present appellant, namely, Muhammad Hussain alias Chaiman without reasonable doubt. Much reliance could not be placed on the ocular evidence of the complainant, namely, Muhammad Nadeem (PW-1); PW-2, Muhammad Naeem; and PW-3, Muhammad Azeem, who are brothers and nephew of the deceased, namely, Muhammad Waseem, particularly in view of the contradiction in the contents of FIR and their depositions with regard to presence of the appellant Muhammad Hussain alias Chairman at the place of incident. It appears that the complainant party, in order to robe the present appellant, who is father of the principal accused, namely, Asghar Hussain, in the instant crime, have falsely deposed against the present appellant through their subsequent depositions, showing the presence of the appellant at the place of alleged incident. Neither any recovery of weapon or empties has been affected from the possession of the appellant Muhammad Hussain alias Chairman, nor any direct evidence or incriminating material, which could connect the appellant with the instant crime has been produced by prosecution. Hence the prosecution could not establish the charges against the appellant, namely, Muhammad Hussain alias Chairman without reasonable doubt. Reference in this regard can be made to the cases of Muhammad Aslam and other Vs. Muhammad Shafique and 3 others (2005 SCMR 1507) and Akhtar Ali and others Vs. The State (2008 SCMR 6).
26. Keeping in view hereinabove contradictions in the ocular evidence of prosecution witnesses and in the absence of any concrete material or findings recorded against the present appellant, namely, Muhammad Hussain alias Chairman son of Muhammad Ismail with regard to his active role, connivance or instigation in the instant crime, the learned trial Court was not justified to award conviction and sentence to the appellant Muhammad Hussain alias Chairman under Section 302/109 PPC, whereas the appellant was entitled to be extended benefit of doubt. Accordingly, while extending benefit of doubt to the present appellant, we allowed the appeal in respect of the appellant, namely, Muhammad Hussain alias Chairman son of Muhammad Ismail and ordered his release, if not required in any other case, vide our short order dated 19.01.2012 and these are the reasons for short such order.
27. Resultantly, Criminal Appeal No. 59/2009 filed by appellant Asghar Hussain son of Muhammad Hussain is dismissed to the extent of his conviction under Section 302 PPC, but the sentence of death awarded to the appellant Asghar Hussain is reduced from death sentence to life imprisonment under Section 302(B) PPC. Confirmation Reference No.1/2009 is accordingly answered in negative and death sentence to the appellant, namely, Asghar Hussain son of Muhammad Hussain is not confirmed. Whereas, Criminal Appeal No. 60/2009 filed by appellant Muhammad Hussain alias Chairman son of Muhammad Ismail is allowed and the appellant Muhammad Hussain alias Chairman son of Muhammad Ismail by extending benefit of doubt is acquitted from the charges. The aforesaid appeals and the confirmation reference stand disposed of in the above terms.
JUDGE
JUDGE