' MUHAMMAD JEHANGIR ARSHAD, J.--- The petitioner who is 'accused in case F.I.R. No,123, dated 8-4- 2005 under sections 337-A(i), 337-A(ii)/34, P.P.C. Police Station Tibba Sultanpur Tehsil Mailsi, District Vehari, is aggrieved against the refusal by Additional Inspector-General of Police/respondent No,1 to transfer the investigation of the said case in terms of Article 18(2) of the Police Order.
2. The facts in brief are that as a result of first investigation conducted by Khalid Israr Ghuman, the petitioner was declared as innocent but on an application moved by the complainant the investigation for the first time changed and was handed over to Bashir Ahmad, S.-I. Who while disagreeing the findings of the first Investigating Officer about innocence of the petitioner, declared him as accused and for that purpose the petitioner moved application under Article 18(6) of the Police Order for second change of investigation but the same was disallowed by Additional Inspector-General of Police respondent No,1, hence this constitutional petition.
3. It is submitted by learned counsel for the petitioner that this Court while sitting in constitutional jurisdiction is empowered to interfere and, direct respondent No,1 to change the investigation as the same was in the interest of justice. It is further contended that since the petitioner has got no alternate remedy against refusal order by the said respondent, therefore, this constitutional petition is maintainable.
4, On the other hand, learned A.A.-G. Assisted by learned counsel for the complainant has submitted that it is not necessary in every case that investigation must be changed whether the same was required or not. They further argue that want of alternate remedy against refusal of the Additional Inspector-General to change investigation, does not mean that this Court must interfere irrespective of the fact that same was called for or not. The learned Law Officer has also argued that it is an established principle of law that finding of the Investigating Officer is not binding on Court, hence change of investigation would have no bearing on the trial of the petitioner as the trial Court despite findings of the Investigating Officer declaring the petitioner as innocent can still direct the Investigating Officer to submit report under section 173, Cr.P.C. And proceed with the trial.
In support of this contention reliance has been placed on the case Muhammad Ashfaq v. Amir Zaman and others 2004 SCMR 1924.
5. I have considered the above arguments of learned counsel for the parties and perused the material available on record.
6. It is an established principle of law that constitutional jurisdiction is discretionary in nature and High Court is not bound to interfere in each and every matter just on the ground of want of alternate remedy against the action impugned or called in question in writ petition, unless there are some compelling reasons showing that non-interference would either result in injustice or would amount to support the retention of illegal gain, as held by the Honourable Supreme Court of Pakistan in the case Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304. The only purpose seeking change of investigation, as advanced by learned counsel for the petitioner, is that he has been found guilty in the second investigation; therefore, second change of investigating by the Additional Inspector-General was inevitable so as to have a second opinion. However; the above mentioned contention of the learned counsel has got no legal sanctity and second opinion by the Investigating Officer cannot be made a ground for approaching this Court. In any case as held by the Honourable Supreme Court in the cited judgment, the findings of the Investigating Officer about guilt or innocence of any person as a result of the investigation, aim of which is just to collect evidence, has no binding effect on the Court and despite finding by the Investigating Officer declaring a person as innocent, jurisdiction of the trial Court to take cognizance of the matter and to proceed with the trial against the accused still would not be taken away, just on the ground that the Investigating Officer declared the petitioner as innocent. Even otherwise, in the case Brig. (Rtd.)
Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142 the Honourable Supreme Court in unequivocal terms held that the Court could not assume the .Role of investigation nor can control the investigation by interfering in constitutional jurisdiction. Earlier in Riaz Hussain and others v. The State 1986 SCMR 1934 the Honourable Supreme Court also disapproved successive change of investigation which trend according to the Honourable Supreme Court was being used at the behest of influential persons of the Society. Perhaps for this reason the Legislature thought it proper to regulate the question of change of investigation permanently by incorporating provisions of Article 18(6) of the Police Order giving the jurisdiction of change of investigation exclusively to the concerned authorities and in case the concerned authorities do not consider proper to change the investigation any interference by this Court would amount to interference in the internal administration of the State authorities which is against the principle of doctrine of trichotomy of powers which grants powers under the Constitution to each organ of the. State to decide the matter in its allotted sphere.
Reliance is placed on the case Syed Nazar Abbas Jaffri v. Secretary to Government of the Punjab and another 2006 SCMR 606 and Ch. Zahur Ilahi, M.N.A. And 2 others v. Mr. Zulfikar Ali Bhutto and others PLD 1975 SC 383.
7. For what has been discussed above, this petition has no force and is accordingly dismissed with no order as to costs.
Petition dismissed.
2006.P Cr. L J 1945 [Lahore] Before Muhammad Nawaz Bhatti and Tariq Shamim,JJ BASHIR and another----Appellants versus THE STATE----Respondent Criminal Appeal No,808 and Murder Reference No,741 of 2001, heard on 14th June, 2006.
Penal Code (XLV of 1860)--- ----S. 302(b)/34---Constitution of Pakistan (1973), Arts.8(1) & 9---Appreciation of evidence--- Testimony of eye-witnesses closely related to deceased---Scope and worth---Delay in dispatching weapons to Chemical Examiner---Effect---Allegation against both accused/appellants was that they, along with two co-accused, committed murder of deceased on suspicion of latter's having illicit relations with sister of one accused/appellant who was wife of other accused/appellant---Trial Court convicted and sentenced accused/appellants to death and acquitted coaccused---Validity---F.I.R. Was promptly lodged with names and specific roles of accused mentioned therein---Medical evidence led by prosecution was admitted as doctor who had conducted post-mortem examination on dead body of deceased was not cross-examined by accused---Prosecution had successfully proved motive against accused---Even if motive alleged by prosecution appeared to be weak or prosecution had failed to prove motive, this fact alone would not be fatal to prosecution case nor the same would amount to mitigating circumstance, warranting lesser sentence---Where the charge was established beyond reasonable doubt then the absence or failure to prove motive would not come in way of passing normal sentence of death in a murder case---Admittedly there was four months delay in dispatching weapons of offence to Chemical. Examiner therefore report of Chemical Examiner/Serologist was- unreliable yet this aspect of the matter had not weakened prosecution case---Mere enmity or close relationship of witnesses with deceased was not a valid ground to discard their evidence*---Court was to be concerned with quality of evidence adduced at the trial irrespective of the fact whether witnesses were hostile or interested---Hostile witness may be a truthful witness and a disinterested witness may make a false statement---Eye- witnesses had convincingly explained their presence on the spot at relevant time---Eye-witnesses' account was supported by medical evidence which had confirmed date, time of occurrence, weapons used by assailants and locale of injuries sustained by deceased---Delay in preparation of site-plan was inconsequential, for the site-plan was not a substantive piece of evidence and it could not be used to discard or contradict evidence of prosecution witnesses---In criminal cases acceptance or denial of claim on oath was of no significance, therefore not acceptable---Case was not that of grave and sudden provocation because motive of offence was not illicit relationship but suspicion of illicit relationship---Contention of accused/appellants that murder was committed on account of "Ghairat" which created mitigating circumstance in favor of accused, was neither sustainable from record nor the same could be declared a mitigating circumstance for awarding lesser sentence---Neither law of the land nor religion permitted so- called "honour-killing" which amounted to murder (Qatl-i-Amd) simpliciter---Honour-killing was violative of fundamental rights enshrined in Arts.8(I) & 9 of the Constitution-- Prosecntion had proved its case against iccused/appellants beyond any reasonable doubt---Death sentence was confirmed---Appeal was dismissed. [pp. 1952, 1953, 1954, 1955] A, B, C, D, E, F, G, H, I, J. - Abdul Wahab alias Rehra v. The State 1999 SCMR 1668; Abdur Rauf v. The State 2003 SCMR 522; Riaz Hussain v. The State 2001 SCMR 177; Sardar Khan and 3 others v. The State 1998 SCMR 1823; Hussain Ahmad v. The State 1996 PCr.LJ 130 and Muhammad Akram Khan v. The State PLD 2001 SC 96 rel.
Muhammad Ajmal v. Sharif Ahmad and others 2004 SCMR 1134; Mushtaq Ahmad v. The State PLD 2004 SC 150; Tariq v. The State 1998 SCMR 1586; Muhammad Sharif and others v. The State PLD 1995 Lah. 593 and Muhammad Yaqub v. The State and another 1996 SCMR 1127 ref. Sahibzada Farooq Ali Khan for Appellants. Sardar Balkh Sher Khosa for the Complainant. Kanwar Muhammad Younas for the State. Date of hearing: 14th June, 2006.
' TARIQ SHAMIM, J.--- Bashir Ahmad son of Pathan and Zafar Ali son of Duran appellants along with Gaindar and Shamla, acquitted co-accused, were tried for the murder of Ghulam Qasim deceased, by the learned Additional Sessions Judge, Rajanpur in case F.I.R. No,16, dated 8-3-1996 for the offence under section 302/34, P.P.C. Registered at Police Station Umer Kot, District Rajanpur.
The learned trial Judge vide judgment, dated 31-10-2001 convicted Bashir Ahmad and Zafar Ali appellants sunder section 302(b), P.P.C. And sentence them to death as Tazir. They were also directed to pay Rs,50,000 each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or to further undergo R.I. For three months in default thereof. Shamla and Gaindar co-accused were, however, acquitted.
2. Feeling aggrieved of the above mentioned conviction and sentence, the appellants have filed Criminal Appeal No,808 of 2001 while the State has approached this Court through Murder Reference No,741 of 2001 seeking confirmation of the sentence of death awarded to the appellants.
Both these matters are being disposed of together through this single judgment.
3. The prosecution story as narrated in the F.I.R. Is that on the fateful day Ali Bakhsh complainant, Ghulam Ali, Ghulam Qasim (the deceased) and Dhani Bukhsh were taking their cattle and herd for potation towards a Vahera creek of river Sindh. Ghulam Qasim was going ahead of them at a short distance while the others were following him. When they reached near, the creek, Bashir Ahmad and Zafar All appellants armed with hatchets Gaindar armed with rifle and Shamla armed with .12 bore gun emerged from the Southern side of the jungle. Zafar Ali raised a Lalkara that he would teach a lesson to Ghulam Qasim for having illicit relations with Mst. Tajoo and also exhorted that said Ghulam Qasim should be killed whereupon Zafar accused gave a hatchet blow on the backside of Ghulam Qasim's neck who fell down, thereafter Bashir appellant gave a hatchet blow which landed on the backside of the deceased's neck. Zafar appellant gave the deceased third blow with his hatchet hitting him on the right cheek near the mouth; Bashir gave another hatchet blow on the backside of deceased's head. The next blow was caused by Zafar appellant landing on the back of the deceased, thereafter Bashir and Zafar appellants gave successive hatchet blows on the back of the deceased. In the meantime Gaindar and Shamla pointed their rifles and gun towards the complainant and P.Ws. In order to restrain them from going near the deceased. After the occurrence the accused went to the jungle whereafter the complainant and P.Ws. Went near the deceased and found him dead. The motive as alleged in the F.I.R. Was that the accused suspected illicit relations between the deceased and Tajoo, sister of Shamla and Zafar and wife of Bashir appellant. The complainant leaving Dhani Bukhsh and Ghulam Ali near the dead body went to the police station to lodge the report when on his way he met Najam-ul-Hassan, S.-I. In Bangla Hedayat who was on patrol duty on the Highway. The complainant recorded his statement Exh.P.B..
Which was read over to him and he signed the same in token of its correctness and Najam-ul- Hassan S.-I. Sent the same to the Police Station Umer Kot through Ghulam Mohy-ud-Din No,106-C for registration of a formal F I. R.
4. Najam-ul-Hassan S.-I./Investigating Officer (P.W.7) then proceeded to the place of occurrence along with the complainant, inspected the dead body of Ghulam Qasim deceased, and prepared injury statement Exh.P.A. And inquest report Exh.P.A./1. He collected bloodstained earth from the place of occurrence, sealed it into a parcel and took into possession vide recovery memo. Exh.P.D.
He inspected the spot and prepared rough site plan of the place of occurrence Exh,P.H., recorded statements of the eye-witnesses, thereafter he sent the dead body for post-mortem examination along with police documents under the escort of Siraj Ahmad No,629-C to the Tehsil Headquarter Hospital Rojhan.
5. Najam-ul-Hasan S.-I./Investigating Officer (P,W.7) arrested Bashir Ahmad and Zafar Ali appellants on 8-4-1996. On the same day Bashir Ahmad appellant led to the recovery of blood- stained hatchet P.4 from his residential room which was sealed into a parcel and taken into possession vide recovery memo. Exh.P.E, The site plan of recovery is Exh.P.E./1. Zafar Ali appellant also led to the recovery of blood-stained hatchet P.5 the same day from his residential room which was also sealed into a parcel and taken into possession vide recovery memo. Exh.P.F. Exh.P.F./1 is the site plan of the recovery memo. Both the recovery memos. Were witnessed by Ghulam Ali, and Dhani Bukhsh P.Ws. On 9-4-1996 the Investigating Officer obtained judicial remand of -the appellants and sent them to jail. He prepared report under section 173, Cr.P.C. Only against the appellants declaring Gaindar and Shamla co-accused to be innocent and submitted the same to Court for trial.
6. Dr. Abdul Qayyum Medical Officer D.H.Q. Hospital Rajanpur while appearing as P.W.1 deposed that while he was posted as Medical Officer Tehsil Headquarter Hospital Rojhan, conducted post- mortem on the dead body of Ghulam Qasim .Deceased brought by Siraj Ahmad Constable No,629- C. The doctor found the following injury on his person:--
(1) There was incised wound 18 c.m. x 10 c.m. Over right side of neck up to right cheek. Underlying vessels and muscels were cut. Trachea and oesphagus were cut. Underlying first cervical joint was cut and dislocated.
' There was incised wound 10 c.m. x 3 c.m. Over right cheek extending upto right angle of mouth.
Underlying right mandible was exposed and fractured into pieces.
' There was an incised wound 8 c.m. x 3 c.m. x bone deep over occipital region, vertical in direction underlying occipital bone was cut.
' There was incised wound 5 c.m. x 2 c.m. Muscle deep oblique in direction over right scapular region.
' Incised wound 4 c.m. x 1 c.m. Muscle deep oblique in direction just above injury No,4.
(6) Incised wound 4 c.m. x 1 c.m.. Muscle deep vertical in direction two inch medial to injury No,4.
In the opinion of the doctor, all the injuries were ante-mortem and were caused by sharp-edged weapon. Injuries Nos. 1, 2 and 3 were individually fatal while injuries Nos.4, 5 and 6 were simple and the death was occurred due to shock, haemorrhage and complete cessation of respiration which was sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was instantaneous and, between death and post-mortem was 12 to 24 hours.
7 . The appellants/accuied were charged under section 302/34, P.P.C. To which they pleaded not guilty and claimed to be tried.
8. In order to prove its case, the prosecution produced Dr. Abdul Qayyum as P.W.1 who conducted post-mortem on the dead body of Qasim Ali deceased, Wazir Ahmad H.C. No,337 (P.W.2) on receipt of complaint Exh.P.B. Correctly recorded formal F.I.R. Exh.P.B./1, Ghulam Qadir P.W.3 identified the dead body of Ghulam Qasim deceased before the Medical Officer at the time of post-mortem examination. Siraj Ahmad Constable No,629-C escorted the dead body of Ghulam Qasim deceased to the Tehsil Headquarter Hospital for postmortem examination and after the same conducted by the M.O. He was handed over last-worn clothes of the deceased Shirt P.1, Shalwar P.2, Vest P.3 along with other papers by the said M.O. And he delivered the same to the Investigating Officer, Ali Bakhsh complainant appeared as P.W.5 who deposed about the ocular account of the occurrence and motive as narrated above, Ghulam Ali P.W.6 who is also an eye-witness corroborated the complainant by narrating the story of the occurrence. He also deposed about the motive for committing the murder of the deceased, Sajjad Hussain Sindhu S.-I. (P.W.7) on taking over charge of the Police Station Umer Kot as S.H.O. On 20-1-2001 and got prepared scaled site plan (Exhs.P.G., P.G./1 and P.G./2) and had given note in red ink on the site plan from Qadir Bakhsh Patwari, Muhammad Najmul Hassan, S.-I. Who while on patrol duty in Bangla Hedayat met the complainant and recorded his statement (Exh.P.B.), sent the same to the police station for formal registration of the F.I.R. He investigated the case, visited the place of occurrence, inspected the dead body of the deceased, prepared injury statement, collected blood-stained earth from the place of occurrence, inspected the spot and prepared rough site plan, recorded the statements of the eye-witnesses, sent the dead body to the mortuary, arrested the accused, effected recovery of blood-stained hatchets from them. He obtained judicial remand of the two appellant's and sent them to jail, prepared report under section 173, Cr.P.C. And submitted the same to the Court; Qadir Bakhsh Patwari Halqa (P.W.9) was declared hostile and was cross-examined by the counsel for the complainant.
9. On 16-10-2001 Mian Khuda Bakhsh Fayyaz Special Public Prosecutor produced in evidence report of Chemical Examiner regarding blood-stained hatchets of Zafar and Bashir accused Exh.P.J. And report of Serologist in respect of the same weapons Exh.P.J./1. He also produced in evidence report of Chemical Examiner regarding bloodstained earth Exh.P.K. And report of Serologist in respect thereof Exh.P.K./1 and closed prosecution case.
10. After closure of the prosecution case, the statements of the appellants as well as their co- accused were recorded under section 342, Cr.P.C. The appellants denied recovery of hatchets from them and attributed their false involvement on account of enmity and claimed innocence. They however, did not opt to enter the witness box in their defence under section 340(2), Cr.P.C.
11. At the conclusion of the trial, the learned trial Judge acquitted Gaindar and Shamla co-accused and convicted and sentenced the appellants as stated above.
12. Learned counsel appearing on behalf of the appellants has contended that the prosecution failed to establish the motive as the evidence adduced at the trial was insufficient to produce illicit relation between Mst. Tajoo and the deceased. Further contended that once having set up a specific motive it was incumbent upon the prosecution to prove the same. Also submitted that the recovery of weapons of offence i,e, blood-stained hatchet P.4 recovered from Bashir Ahmad appellant and blood-stained hatchet P.5 recovered from Zafar Ali Appellant from his house were effected after a month of the occurrence which were witnessed by Ghulam Ali P.W.6 and Dhani Bakhsh P.W. And since the said weapons of offence were sent to the office of the Chemical Examiner after a period of more than thfee months of their recovery, the inordinate delay in dispatching of the weapons made the recoveries valueless. Also urged that the witnesses of occurrence were closely related to the deceased and were inimical towards the accused and that the evidence of such inimical witnesses should be completely discarded. Further submitted that the evidence regarding recording of F.I.R. Was discrepant and full of improbabilities. Also asserted that the site plan was prepared by Halqa Patwari after a lapse of 4 years of the occurrence and as such the same was of no consequence and could not be relied upon. The learned counsel further contended that there were contradictions and improvements in the statements of the two eye- witnesses which rendered the testimony doubtful. It was also contended by the learned counsel for the appellant that the police had declared Shamla and Gaindar accused innocent, whereupon the matter had been referred to an Arbitrator and the complainant had accepted oath of the accused regarding their innocence in the case. The learned counsel also argued that if the complainant's version is accepted then it was a case of grave and sudden provocation and the appellants deserved leniency in the matter. Lastly argued that the murder of Ghulam Qasim was on account of "Ghairat" and the same being a mitigating circumstance, the appellants were entitled to a lesser sentence. The learned counsel for the appellants has placed reliance on Muhammad Ajmal v.
Sharif Ahmad and others 2004 SCMR 1134, Mushtaq Ahmad v. The State PLD 2004 SC 150, Tariq v.
The State 1998 SCMR 1586, Muhammad Sharif and others v. The State PLD 1995 Lah. 593 and Muhammad Yaqub v. The State and another 1996 SCMR 1127.
13. On the other hand the learned counsel appearing on behalf of the State and the complainant contended that the prosecution has approved the motive to the hilt against the appellants and even if there were any weakness in the motive this fact alone would not be fatal to the prosecution case and cannot be termed as a mitigating circumstance where charge is otherwise established beyond any reasonable doubt. Also contended that the recoveries effected from Bashir Ahmad and Zafar Ali appellants were stained with blood and the report of the Chemical Examiner and the Serologist were positive which further supported the case of the prosecution. Also submitted that the eye-witness account furnished by P.W.5 and P.W.6 was fully corroborated by the medical evidence and the evidence of, motive and recoveries of weapons and even if there was enmity between the complainant and the, accused the defence had not been able to prove that the complainant was inclined to falsely implicate the accused in the case. The mere relationship of the P.Ws.With the deceased is no ground to discard their testimony unless it can be shown that the witnesses had deposed falsely against the accused. In the instant case the evidence of the said P.Ws. Was credible and truthful and despite lengthy cross-examination their evidence could not be shaken by the defence. The evidence of the said witnesses inspires confidence and based on truth.
It was also urged by the learned counsel that the improvements and discrepancies referred to by the learned counsel for the appellants were minor in nature, hence insignificant which did not effect the credibility of the witnesses. The learned counsel further maintained that insofar as preparation of the site plan by the Halqa Patwari after a lapse of four years was concerned, the Investigating Officer had been siding with the accused party from the very beginning. Even otherwise site plan was not a substantive piece of evidence and could not be used to contradict or discredit the eye-witnesses. Further the accused did not seriously challenge the time and place of occurrence and the mode or the.Manner in which the same took place. The matter in so far as it relates to the declaration of innocence of Shamla and Gaindar and the matter having been referred to the Arbitrator where allegedly the complainant had accepted the oath of the accused was of no consequence as in criminal law there is no concept of decision on oath. Finally the learned counsel maintained that the plea of defence that it was a case of grave, and sudden provocation and that the appellants in view thereof deserve leniency is against the law and not sustainable from the evidence on the record which showed premeditated murder of the deceased at the hands of the appellants.
14. We have heard the learned counsel for the parties and also gone through the record. P.W.1 Dr. Abdul Qayyum who had conducted the post-mortem examination on the dead body of the deceased was not cross-examined by the defence, hence the evidence as regards P.W.1 stands admitted. Insofar as the motive is concerned, according to the complainant the motive was suspected illicit relations between the deceased and Mst. Tajoo wife of Bashir Ahmad appellant and sister of Shamla and Gaindar acquitted co-accused. Ali Bakhsh P.W.5 in his statement on the point of motive was fully corroborated by P.W.6 Ghulam Ali. The two eye-witnesses had categorically stated that immediately prior to the attack Zafar Ali accused had raised a Lalkara that the deceased should be taught a lesson for having illicit relations with Mst. Tajoo. Even if the motive alleged by the prosecution appears to be weak or the prosecution had failed to prove the motive, this fact alone would not be fatal to the prosecution case nor would, the same be a mitigating circumstance warranting lesser sentence. Reliance is placed on the case of Abdul Wahab alias Rehra v. The State 1999 SCMR 1668 wherein the Honourable Supreme Court has observed that absence or failure to prove the motive when the charge is otherwise established beyond reasonable doubt would entail normal sentence in a murder case. We agree with the contentions of the learned counsel appearing on behalf of the State and the complainant that the prosecution has successfully proved the motive against the appellants for the murder of the deceased.
15. The arguments of the learned counsel for the appellants that the deceased was a man of bad character is of no help to the appellants as the defence version if accepted would prove continuing enmity between the parties providing strength to the prosecution version that the deceased had been murdered by the accused on account of enmity.
16. Coming to the recoveries Ghulam Ali P.W.6 witnessed the recoveries and confirmed that the same were effected in his presence and in the presence of Dhani Bakhsh P.W. Who was given up by the prosecution as he had passed away. The report of the Chemical Examiner Exh.P.J. And that of Serologist Exh.P.J. /1 regarding blood-stained hatchets of Bashir Ahmad and Zafar Ali appellants were in positive. Admittedly there is delay in dispatching of the weapons of offence to the office of the Chemical Examiner, thus, agreeing with the learned counsel appearing on behalf of the appellants, D we conclude that the report of the Chemical Examiner and analysis of the Serologist after four months of the occurrence was unreliable. Yet this aspect of the matter has not weakened the prosecution's case against the appellants.
17. The ocular evidence in the case was furnished by Ali Bakhsh P.W.5 and Ghulam Ali P.W.6 who are the real brothers of the deceased. A perusal of the evidence reveals that the relationship of the P.Ws. With the deceased has been admitted; enmity between the P.Ws. And the accused is also admitted. However, mere relationship of the P.Ws. With the deceased is no ground to discard their testimony unless it can be shown by the defence that the witnesses had a motive to falsely involve the accused in the case. The evidence of the eye-witnesses cannot be brushed aside merely because of their relationship with the deceased or enmity with the accused party particularly when the witnesses had reiterated the version given in the FIR. And good reasons for their presence at the spot had been shown. Thus, mere enmity or close relationship of the witnesses with the deceased is not a valid ground for discarding their evidence. The Court should be concerned with the quality of the evidence adduced at the trial by the prosecution and, not whether the witnesses were hostile or interested. A hostile witness maybe a truthful witness and a disinterested witness may make a false statement. The eye-witnesses haye given a detailed account of the time, place and mode of occurrence, hence they have convincingly explained their presence at the spot at the relevant time. Further the said P.Ws. Have stood the test of cross-examination and the defence could not create any significant dent in their testimony. Reliance is placed upon the case of Abdur Rauf v. The State 2003 SCMR 522 and Riaz Hussain v. The State 2001 SCMR 177.
18. The time of recording of F.I.R. As well as the place and time of occurrence was not challenged by the defence. The F.I.R. Was lodged with promptitude and the names and specific role of the appellants had been clearly mentioned therein. Both the eyewitnesses had made consistent statements before the learned trial Court and their statements had received ample support from the medical evidence which had confirmed the date and time of occurrence, the weapons used by the assailants and the locale of injuries sustained by the deceased.
19. Insofar as the matter regarding delay in preparation of site plan is concerned the site plan is not a substantive piece of evidence and cannot be used to discard or contradict the evidence G of the prosecution witnesses. The Honourable Supreme Court in the case of Sardar Khan and 3 others v.
The State 1998 SCMR 1823 has held:- "The site plans are, however, prepared only to explain or to appreciate the evidence on record in the case. Site plan by itself is not a substantive piece of evidence so that it could contradict the ocular account in the case."
20. As regards the matter relating to the Arbitration and acceptance of the oath by the complainant is concerned, in criminal H proceedings/trial acceptance or denial of a claim on oath is of no significance, hence not acceptable. Profitable reference may be made to the case of Hussain Ahmad v. The State 1996 PCr.LJ 130 wherein it has IH been observed:-- "In criminal matters the acceptance or denial of facts on oath during the trial and on the same reasoning during the investigation is not provided/allowed, thus, the opinion of any on the basis of the oath would be considered to be devoid of legal force."
21. The argument of the learned counsel for the appellants that it was a case of grave and sudden provocation and on account thereof the appellants deserve leniency in the matter is misconceived as the motive of offence was not illicit relationship but suspicion of illicit relationship and from the facts and circumstances of the case it can be gathered with confidence that it was a case of premeditated murder and not on account of grave and sudden provocation as urged by the learned counsel for the appellants. The last argument of the learned counsel for the appellants that the murder had been committed on account of "Ghairat" is neither sustainable from the record nor can the same be declared a mitigating circumstance for awarding a lesser sentence.
Reference is made to the case of Muhammad Akram Khan v. The State PLD 2001 SC 96. The relevant portion of the judgment of the Honourable Supreme Court is reproduced hereunder:-- "Legally and morally speaking, nobody has any right nor can anybody be allowed to take law in his own hands to take the life of anybody in the name of "Ghairat". Neither the law of the land nor religion permits so-called honour killing which amounts to murder (Qatl-i-Amd) simpliciter. Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8(1) of the Constitution."
' The judgments referred to by the learned counsel for the appellants are distinguishable on the facts.
22. For what has been discussed above there is no doubt in our mind that the prosecution has succeeded in proving its case against both the appellants beyond any reasonable doubt.
Resultantly we dismiss Criminal Appeal No,808 of 2000 and maintain the conviction and sentence of Bashir Ahmad and Zafar Ali appellants. The death sentence awarded to them is confirmed.
Murder Reference No,741 of 2000 to their extent is answered in the affirmative.