IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE SAYVED MAZAHAR ALl AKBAR NAQVI
MR. JUSTICE MUHAMMAD ALl MAZHAR
MR. JUSTICE ATHAR MINALLAH
CRIMINAL APPEAL NO. 190 OF 2020
(Against the judgment dated 21.10.2015 passed by the
Lahore High Court Rawalpindi Bench in Criminal Appeal
No. 33-1/20I0 Criminal Revision No. 56/2010 and Murder
Reference No. 100/2010)
All Asghar @ Aksar
Appellant(s)
VERSUS
The State
Respondent(s)
For the Appellant(s): 
Syed Rifaqat Hussain Shah, ASC
For the State: 
Mirza Muhammad Usman, DPG
For the Complainant: 
Mr. Muhammad Bashir Paracha, ASC
Date of Hearing: 0712.2022
JUDGMENT
SAYYED MAZAHAR ALl AKBAR NAQVI, J. Appellant Ali Asghar was tried
by the learned Additional Sessions Judge, Attock, pursuant to a case
registered vide FIR No. 258 dated 21.08.2009 under Section 302 PPC at
Police Station Saddar, Attock for committing murder of Ehsan Ullah,
brother of the deceased. The learned Trial Court vide its judgment dated
1502.2010 convicted the appellant under Section 302(b) PPC and
sentenced him to death. He was also directed to pay compensation
amounting to Rs.200,000/- to the legal heirs of the deceased or in default
whereof to further undergo six months SI. in appeal the learned High
Court maintained the conviction and sentence of death under Section
302(b) PPC. The amount of compensation and the sentence in default
whereof was also maintained. Being aggrieved by the impugned judgment,
the appellant filed Jail Petition No. 501/2015 before this Court wherein
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leave was granted by this Court vide order dated 05.03.2020 and the
present appeal has arisen thereafter.
2.
The prosecution story as given in the impugned judgment
reads as under:-
"2. Brief facts of the case, as disclosed by Naveed Akram, complainant
(PW-10) in his statement on the basis of which formal crime report was
recorded, are that they are three brothers. On 21.08.2009, he along with
his elder brother Ehsan UIlah and Iftikhar Khan (PW-11) was sitting in their
Baithak situated in Mauza Mongiwal. His brother Ehsan Ullah went out
towards their agricultural farm. He and lftikhar Khan (PW-11) also followed
him. At 04.30 pm, when they reached near the shop of one Abdul Marian
which was closed due to Jummah tul Mubarik and Ali Asghar, appellant,
was standing near the shop who raised lalkara to Ehsan Jllah, deceased,
that he had insulted him at his farm and he will teach him a lesson and
after taking out .30 bore pistol from fold of his Shalwar, made straight fires
at Ehsan Ullah which landed on his right hand and right side of his
abdomen who after sustaining injuries fell down. The occurrence, besides
him was witnessed by lftikhar Khan (PW-11) and Azeem Khan (given up
PW), who per chance was passing by there. Ali Asghar after the occurrence
fled away from the spot.
The motive behind the occurrence, as disclosed by the complainant in
[xhPH was that on 20.08.2009 a quarrel took place between Ali Asghar
and servant of Ehsan Ullah deceased and Ehsan Ullah reprimanded the
appellant and due to this grudge. All Asghar has committed the murder of
Ehsan Ullah. The complainant further stated-that they were taking Ehsan
Ullah in injured condition to hospital, Attock, who succumbed to the
injuries.
3.
After completion of the investigation, report under Section
173 Cr.P.C. was submitted before the Trial Court. The prosecution in order
to prove its case produced thirteen witnesses. In his statement recorded
under Section 342 Cr.P.C, the appellant pleaded his innocence and refuted
all the allegations leveled against him. He did not opt to appear as his own
witness on oath as provided under Section 340(2) Cr.P.0 in disproof of the
allegations leveled against him. He also did not produce any evidence in
his defence.
4.
Learned counsel for the appellant while opening his
arguments has stated that there are glaring contradictions and dishonest
improvements in the statements of the eye-witnesses, which escaped the
notice of the learned courts below. Contends that the presence of the
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prosecution witnesses at the place of occurrence was doubtful and they
have not explained the same. Contends that the prosecution witnesses are
interested and related, therefore, their evidence has lost its sanctity and
the conviction cannot be based upon it. Contends that the prosecution has
not been able to prove motive as alleged, which causes serious dent in the
prosecution case. Lastly contends that the impugned judgment passed by
the learned High Court is the result of mis-reading of the evidence,
therefore, the same may be set at naught.
5.
On the other hand, learned Law Officer assisted by learned
counsel for the complainant vehemently opposed this appeal on the
ground that the eye-witnesses had no enmity with the appellant to falsely
implicate him in this case. It has been contended that the eye-witnesses
have reasonably explained their presence at the spot at the relevant time,
which is quite natural and probable and the medical evidence is also in line
with the ocular account, therefore, the appellant does not deserve any
leniency from this Court.
6.
We have heard learned counsel for the parties at some
length and have perused the evidence available on the record with their
able assistance.
A bare perusal of the record shows that the unfortunate
incident, wherein the brother of the complainant lost his life, took place
on 21.08.2009 at 4.30 PM. The matter was reported to the Police and the
FIR was lodged on the same day at 06.15 PM i.e. just after one hour and
forty five minutes of the occurrence. Keeping in view the inter se distance
between the place of occurrence and the Police Station i.e. 20 kilometer,
the FIR is considered to be promptly lodged. The occurrence took place in
the broad daylight whereas the parties were known to each other,
therefore, there is no chance of misidentification. The ocular account in
this case has been furnished by Naveed Aram Khan, complainant (PW-10)
and Iftikhar Khan (PW-11). The complainant NaveS Akram was brother of
the deceased while the other PW lftikhar Khan was maternal uncle
(kholoo) of the deceased. Both these witnesses were residents of the same
-- -p 
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locality where the occurrence took place, therefore, their presence at the
place of occurrence on the fateful day and time is not unnatural. These
prosecution witnesses were subjected to lengthy cross-examination by the
defence but nothing favourable to the appellant or adverse to the
prosecution could be brought on record. Both these PWs remained
consistent on each and every material point inasmuch as they made
deposition according to the circumstances surfaced in this case, therefore,
it can safely be concluded that the ocular account furnished by the
prosecution is reliable, straightforward and confidence inspiring. The
medical evidence available on the record further corroborates the ocular
account so far as the nature, time, locale and impact of the injuries on the
person of the deceased is concerned. Even otherwise, it is settled law that
where ocular evidence is found trustworthy and confidence inspiring, the
same is given preference over medical evidence. As far as the question
that the prosecution witnesses are interested and related, therefore, their
evidence has lost its sanctity is concerned, it is now settled that mere
relationship of the prosecution witnesses with the deceased cannot be a
ground to discard the testimony of such witnesses. Learned counsel for
the appellant could not paint out any plausible reason as to why the
complainant has falsely involved the appellant in the present case and let
off the real culprit, who has committed murder of his real brother.
Substitution in such like cases is a rare phenomenon. During the course of
proceedings, the learned counsel contended that there are material
discrepancies and contradictions in the statements of the eye-witnesses
but on our specific query he could not point out any major contradiction,
which could shatter the case of the prosecution. It is settled law that even
if there are some minor discrepancies, the same should be ignored if they
do not hamper the salient features of the prosecution case. As long as the
material aspects of the evidence have a ring of truth, courts should ignore
minor discrepancies in the evidence. The test is whether the evidence of a
witness inspires confidence. If an omission or discrepancy goes to the root
of the matter, the defence can take advantage of the same. While
appreciating the evidence of a witness, the approach must be whether the
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evidence read as a whole appears to have a ring of truth. Minor
discrepancies on trivial matters not affecting the material considerations
of the prosecution case ought not to prompt the courts to reject evidence
in its entirety. Such minor discrepancies which do not shake the salient
features of the prosecution case should be ignored. From the place of
occurrence, two crime empties of .30 bore pistol were recovered. The
same were sent to Forensic Science Laboratory on 26.082009 whereas the
pistol recovered from the appellant was subsequently sent to FSL on
03.09.2009 much prior to the dispatch of the pistol. According to the
report of the FSL, the crime empties matched with the weapon recovered
from the appellant. In these circumstances, there is sufficient material
available on record to sustain conviction of the appellant. However, so far
as the quantum of punishment is concerned, we are of the view that the
same requires consideration. According to the prosecution, on 20.08.2009
a quarrel took place between the appellant and servant of Ehsan UUah,
deceased. The deceased had reprimanded the appellant and due to this
grudge, the appellant committed the murder of Ehsan Ullah. The
prosecution has also produced servant of the deceased namely Sher
Ahmed as PW-7. In his statement, Sher Ahmed deposed that the appellant
wanted him to work with him and he asked him to leave the job of the
deceased. A bare perusal of the statement of the said witness reveals that
the real motive of the appellant was with the said Sher AU, therefore, the
actual motive to commit the murder of Ehsan Ullah remained shrouded in
mystery. It is now well established that if a specific motive has been
alleged by the prosecution then it is duty of the prosecution to establish
the said motive through cogent and confidence inspiring evidence.
Otherwise, the said motive might be considered a mitigating circumstance
in favour of an accused. However, where no motive is alleged, the capital
punishment can be awarded keeping in view the evidence led by the
prosecution. In these circumstances, we are of the view that the penalty of
death would be harsh. Consequently, while maintaining the conviction of
the appellant under Section 302(b) PPC, the sentence of death is altered
into imprisonment for life duly provided under the statute. The amount of
Criminal Appeal No, 190/2020 
IMMI
compensation and the sentence in default whereof is also maintained.
Benefit of Section 382-B Cr.PC. is also extended to the appellant.
7. For what has been discussed above, this appeal is partly
allowed and the impugned judgment is modified as stated in the preceding
paragraph.
Islamabad, the
7th0f December, 2022
Approved For Reporting
IrA.i.iicini
