' KHAWAJA MUHAMMAD SHARIF, J.---This appeal is directed against the judgment, dated 9-9-2003 passed by the learned Additional Sessions Judge, Chiniot, whereby, having tried the appellant, along with four others, in the case registered vide F.I.R.No,44, dated 6-2-2001 under sections 302/324/148/149, P.P.C., Police Station Bhowana, Chiniot, he was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life as Tazir with a compensation of Rs,50,000 to be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. In default whereof to further undergo six months' S.-I. Coupled with extension of benefit of section 382-B, Cr.P.C. Four co-accused of the appellant, namely, Mukhtar Ahmad son of Shameer, Muhammad Iqbal son of Shameer, Muhammad Akhtar son of Muhammad Khan and Hazoor Bakhsh son of Muhammad Sadiq were, however, given the benefit of doubt and acquitted from the case.
2. The prosecution story, as unfolded through F.I.R.(Exh. PA/1) registered on the statement of the complainant Falak Sher, briefly stated is that on 6-2-2001 son of complainant Sarfraz was going to pay Salam at the shrine of Hassan Shah and at 12.45 p.m. When his son was passingthrough the Dhari of Shameer son of Mamoora, then Altaf Hussain armed with rifle 7 mm Akhtar armed with pistol. 30-bore, Hazoor Ahmad armed with pistol. 30-bore, Iqbal and Mukthar armed with clubs asked his son why he was passing from there and Sarfraz and Altaf Hussain accused grappled with each other and upon the uproar of Sarfraz deceased, complainant, Mumtaz Iqbal and Zafar Iqbal who were working in the nearby field rushed to the place of occurrence; that upon seeing them Altaf Hussain and Akthar Hussain accused persons went up to the roof of the room from dhari of Mukhtar and within their sight Altaf Hussain fired at'Sarfraz from the roof hitting on his back, whereupon he fell down, Zafar Iqbal when attempted to attend Sarfraz, in the meanwhile Akthar Hussain also fired at Zafar Iqbal which landed on his left shoulder, Mumtaz and Iqbal P. Ws. Were also given club blows by Mukthar and Iqbal which hit on the forehead and both arms of Muhammad Iqbal, Mukhtar, Mukhtar accused also inflicted club blow hitting left shoulder of complainant; that Hazoor accused fired at complainant hitting on his right buttock and he fell down; that upon hue and cry and report of firing, Nausher and Allah Yar came at the spot and the accused persons made their escape good and that the motive alleged in the F.I.R. Was that the result of exchange of hot words between Zafar Iqbal and Akhtar.
3. After having completed legal formalities and having completed investigation of the case, the police submitted challan against the accused to face trial before the learned Court of competent jurisdiction, where, in order to prove its case, the prosecution examined 11 witnesses including the doctor and the Investigating Officer.
4. The accused, when examined under section 342, Cr.P.C. Denied the prosecution case and attributed involvement to false implication and claimed trial.
5. Learned counsel for the appellant, in support of this appeal, submitted that in fact it was the complainant party who was aggressor which factum was even proved by prosecution witnesses; that all the eye-witnesses are closely related to the deceased and no independent witness appeared before the learned trial Court to support the prosecution; that logically the story of the prosecution is not plausible; that it is not believable that the appellant, who was armed with a fire- arm, on seeing the complainant party, would go on the roof top of the house; that the house of the complainant party is at a distance of about one square; that a net has been widened to involve maximum number of family members as all the accused persons as closely related inter se; that although acquitted accused Hazoor Bakhsh was shown to be armed with pistol at the time of occurrence but he was found innocentthat the story of the F.I.R. Has been contradicted by the ASP during investigation; that if major part of the prosecution was disbelieved during investigation and its credence must go to the appellant as well; that the appellant had no intention to commit the murder of the deceased; that conviction and sentence awarded to the appellant is against the weight of evidence on record; that the judgment of conviction has been passed on surmises and conjectures; that the prosecution has failed to prove its case against the appellant beyond an iota of doubt and that, in the afore-referred circumstances, after having accepted the appeal, appellant be acquitted from the case.
6. On the other hand, learned counsel for the State assisted by complainant's learned counsel, while defending the impugned judgment of conviction, submitted that P.W.1. Falak Sher, P.W.2 Zafar Iqbal and P.W.3 Mumtaz Iqbal are injured eye-witnesses of the case; that they are star witnesses of the prosecution case and have supported the prosecution story on all material particulars and nothing could be shaken despite cross-examination; that the ocular account is corroborated by the medical evidence; that the recovery has been effected from the appellant; that it is a well- reasoned judgment; that the same is in accord with the weight of evidence on record; that since it does not warrant interference by this Hon'ble Court, therefore, the appeal filed by the appellant against the said judgment is liable to be dismissed after having maintained the sentence so awarded through the impugned judgment. Further submitted that the learned trial Court has already taken a lenient view while awarding the appellant to imprisonment for life and not death.
7. I have heard learned counsel for the parties, have gone through the evidence with their able assistance and have also given anxious consideration to the submission made by the respective parties at the bar.
8. Occurrence in this case took place on 6-2-2001 at 12.45 p.m.The matter was reported to the police by Falak Sher complainant/injured P.W.1 at 2.45 p.m. On the same day, the formal F.I.R. Was recorded same day at 3.10 p.m. While distance between the Police Station and the place of occurrence is four miles. In all, five accused persons were named in the F.I.R. Four co-accused of the appellant, namely, Mukhtar Ahmad son of Shameer, Muhammad Iqbal son of Shameer, Muhammad Akhtar son of Muhammad Khan and Hazoor Bakhsh son of Muhammad Sadiq were, however, acquitted from the case and the appellant was convicted and sentenced as detailed above. In this case, apart from deceased, there are three eye-witnesses of the case who received injuries during the occurrence i.e, P.W.1. Is Falak Sher, P.W.2 is Zafar Iqbal and P.W.3 is Mumtaz Iqbal.
They are being injured eye-witnesses of the case are star witnesses of the prosecution case and have supported the prosecution story on all material particulars and nothing could be shaken despite cross-examination. Their statements are corroborative with each other. Although they are closely related to the deceased but they have no animus or motive to falsely depose against the appellant. They have proved their presence at the spot and I. See no reason to discard their testimony which has come from unimpeachable sources and is confidence-inspiring because it is settled by now that even the testimony of the close related witnesses is believable if they have no enmity or motive to falsely implicate them in the case. The ocular account is corroborated by the medical evidence which factor further lends support to the prosecution case. There is yet another corroborative piece of evidence i.e, recovery from the appellant.
It is a broad-daylight occurrence, the parties are known to each other, therefore, no question arises for mistaken identity or false implication or even substitution in place of the real culprits. So far as argument of the learned counsel for the appellant regarding extension of benefit of the innocence of the co-accused and their acquittal from the case is concerned, it is settled principle of criminal jurisprudence that the evidence of the eye-witnesses can be believed qua the convicted accused which was disbelieved qua the acquitted accused.
It is settled by now that when a case is proved against the accused through a reliable evidence then he has to be awarded a normal penalty of death otherwise the learned trial Court has to give sound reasons for not doing so. But in the case in hand, no plausible reasons has been given by the learned trial Court for awarding lesser sentence to the appellant. However, at this belated stage I would not like to interfere regarding quantum of sentence.
9. After having adjudged the case from every angle and having sifted grain from the chaff, this Court is of the considered view that the prosecution has proved its case against the appellant beyond a shadow of doubt to sustain conviction. The learned trial Court has already taken a lenient view while not awarding sentence of death to the appellant. Resultantly, this appeal is dismissed and the conviction and sentence awarded by the learned trial Court to the appellant is hereby maintained in too. For reasons recorded above, Criminal Revision No,950 of 2003 is dismissed.