JAVED IQBAL, J.--- Muhammad Javaid (petitioner) has preferred this petition from jail assailing the judgment, dated 26-1-2004 passed by the learned Federal Shariat Court whereby the judgment of learned Additional Sessions Judge, Rawalpindi dated 18-4-2000 whereby the petitioner has been convicted under section 302(b), P.P.C. And sentenced to death with fine of Rs,1,00,000 and in case of default further to suffer six months R.I. Has been kept intact, however, the conviction under section 7 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 whereby petitioner was sentenced to life imprisonment with fine of Rs,20,000 and in case of default to suffer further one year imprisonment has been set aside.
2. Precisely stated facts of the case as enumerated in the judgment impugned are based on "Fard Biyan (Exh.P.H.) recorded on the statement of Mst. Robina Kausar, on 25-5-1997 at 5-30 p.m., is to the effect that on the same day at about 3-00 p.m., she was present along with her sister Mst.
Pukhraj and Mst. Shahnaz Bibi in her house. In the meanwhile the accused Muhammad Javed who was carrying a rifle on his left shoulder and was holding a carbine in his right hand entered there.
The courtyard of her house as well as of the house of her maternal-grandmother, Jannat Bibi, is one and the same. Soon after his arrival in the house, Muhammad Javed accused threatened to kill all of them and fired shot from his carbine whereupon the complainant and her sisters got scared, ran inside the house and closed the door. She along with her sisters got scared, ran inside the house and closed the door. She along with her sisters saw through the window of their house that accused Javaid entered the house of Mst Jannat Bibi and caught hold of her maternal-aunt Shahnaz, aged 25/26 years, and dragged her out of the house towards the street. Thereupon the complainant and her sister went out and raised hue and cry which attracted many persons but nobody could come forward as the accused Javaid was armed with carbine and also considered a rogue in the village. However, her grand maternal-mother Jannat Bibi arrived from the courtyard of house of Muhammad Azram side and tried rescue her said daughter. Thereupon Javed accused threatened to kill her in case she advanced any further. Mst: Jannat Bibi, however, stepped forward whereupon said Muhammad Javed fired from his carbine which hit Jannat Bibi in front of her shoulder and, after falling down, she died on the spot. Muhammad Javed accused caught hold of Mst. Shahnaz and forcibly abducted her at weapon point for commission of Zina and marriage. She alleged that the reason for his grievance was the fact that earlier, about 2-1/2 years before accused Javed had abducted her younger sister Mst. Shahnaz Bibi, and a case in that respect had been registered against him. Accused Javed, who was facing trial, had been granted bail, 5/6 months before and had therefore, come to his house. She alleged that they had left aforementioned Muhammad Azram with the dead body and had come with her maternal-uncle Iftikhar Mehmood, who had reached there, to report the matter to police. Exh.P.H. Was thereafter sent and incorporated into formal F.I.R. At Police Station Kallar Saidan, District Rawalpindi". The petitioner was arrested and after completion of investigation he was sent up for trial along with co- accused and on conclusion whereof he was convicted and sentenced as per details mentioned in the preceding paragraph.
3. Mr. S.M. Abdul Wahab, Advocate Supreme Court entered appearance on behalf of petitioner and urged with vehemence that the prosecution has failed to substantiate accusation by producing cogent and concrete evidence as no reliance could have been placed on the statements of Mst.
Robina Kosar (P.W.9), Mst. Shahnaz (P.W.10/ abductee) and Mst. Shahnaz Bibi (P.W.11) being interested witnesses in absence of any' corroboration which is lacking in this case. It is contended that no crime-empty could be recovered from the place of occurrence and moreso no burning signs were detected on the dead body, which belies the prosecution story that fire was made from a distance of about 2-1/2 feet. It is also pointed out that a dead body was found lying on cot which creates doubt as according to the prosecution, firing was made when Mst. Jannat Bibi attempted to rescue her daughter and hence the question of her lying on the cot does not arise.
4. We have carefully examined the contentions as agitated on behalf of petitioner, thrashed the entire evidence, with eminent assistance of learned Advocate Supreme Court on behalf of petitioner and perused the judgment of learned trial Court as well as the judgment impugned. After having gone through the entire evidence by keeping the defence version in juxtaposition we are of the view that prosecution has substantiated the accusation by producing worthy of credence and confidence inspiring evidence. In this regard the statements of Mst. Robina Kosar (P.W.9), Mst.
Shahnaz (P.W.10/Abductee) and Mst. Shahnaz Bibi (P.W.11) can be referred. The eye account furnished by above named witnesses has rightly been appreciated by learned trial Court determination whereof has been upheld by the learned Federal Shariat Court by giving cogent and convincing reasoning. The statement of Mst. Robina Kosar (P.W.9), Mst. Shahnaz (P.W.10/abductee) and Mst. Shahnaz Bibi (P. W.11) are consistent, worthy of credence and straightforward. It is to be noted that they all stood firm to the test of cross-examination and nothing advantageous or beneficial could be extracted rendering any assistance to the case of petitioner. It is worth- mentioning that being inmates of the house they were natural witnesses and cannot be termed as interested witnesses having no animus and rancour about the petitioner. Be as it may it is not a relationship and friendship but intrinsic value of the statements of witnessed which is required to be taken into consideration. The learned Advocate Supreme Court was pointedly asked that as to why the eye account furnished by Mst. Robina Kosar (P.W.9), Mst. Shahnaz (P.W.10/abductee) and Mst. Shahnaz Bibi (P.W.11) should be disbelieved, but no answer could be given except that in view of their inter se relationship some independent witnesses should have been produced before the Court to substantiate the accusation which could not be done and benefit whereof may be given to the petitioner. We may mention here at this juncture that reluctance of general public to become witness by now has become judiciously recognized fact and it is an admitted fact that the public for certain obvious reasons does not cooperate with the police and nobody comes forward to get his statement recorded in order to avoid the complicated and time consuming process of the Courts. This aspect of the matter was discussed in case Mirza Shah v. State 1992 SCM R 1475 as under:-- "There is growing tendency, as has been observed in several judgments of the superior Courts, that public neither volunteers to become witness nor the eye-witnesses come forward to help the investigation. Such reluctance on the part of the general public may be due to various reasons including the fear from persons of impeachable character who are dangerous, desperate and revengeful. The other reasons are that generally the moral values have declined and also due to the faulty attitude of the police against which complaints have been made and the delays which occur in investigation and the trial of the cases. These facts are so prominent that it is difficult to ignore them. If one takes note of the non-cooperative attitude of the public witnesses for drawing certain inferences in favor of prosecution., then one cannot ignore the lapses in investigation and growing tendency to involve a large number of persons sometimes, by the complainants or the police. Therefore, it is not only the public but the officials as well who are to be blamed for such a situation. It has become a common feature which can be noticed that in cases of dacoity, kidnapping for ransom, recovery of big hauls of heroine drugs, and prohibited arms, the eye- witnesses prefer either to avoid or refuse to testify anything out of fear and risk to personal safety.
These are some of the explainable factors and circumstances which may justify acceptance of testimony of Police Officer which otherwise does not suffer from infirmity. Muhammad Khan v. Dost Muhammad and 17 others PLD 1975 SC 607, Sultan and others v. The State 1987 SCM R 1177, Muhammad Afzal v. The State 1987 SCM R 1, Zardad v. The State 1991 SCM R 458, Muhammad Shah v.
The State PLD 1984 SC 278, Malik Aman v. The State 1986 SCM R 17, Khair Gul v. The State 1989 SCM R 491; Rehman Ali v. The State 1984 SCM R 109, Ballia and others v. The State 1985 SCM R 854, Yar Muhammad and 3 others v. The State 1992 SCM R 96, Yamin Kumhar v. The State PLD 1990 Kar. 275, Mumtazuddin v. The State PLD 1978 SC 114, Muhammad v. The State PLD 1981 SC 635 and Muhammad Shafi and others v. The State PLD 1967 SC 167."
5. As mentioned hereinabove the eye-witnesses being inmates of the family were natural witnesses and their statements cannot be discarded. It is well-settled by now "that an interested witness is one who has a motive for falsely implicating an accused. The concept of "interested witness" was discussed elaborately in case titled Iqbal alias Bala v. The State 1994 SCM R 1 and it was held that friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of even an interested witness are set out in Nazir v. The State PLD 1962 SC
269. In Khalil Ahmed v. The State 1976 SCM R 161 the testimony of deceased's son aged 15 years was accepted as he was not personally involved in any act of enmity and his statement was consistent, corroborated by the presence of injuries on his person, human blood-stained articles recovered from the accused and supported by two other witnesses. In Allah Ditta and others v. The State 1970 SCM R 734 the testimony of four P.Ws. Out of which two had sustained injuries was accepted although they were related to the deceased because they were natural witnesses, injuries sustained by two P.Ws. Proved their presence and involvement in the occurrence and there was motive on the part of the accused to attack the deceased. Further their evidence found support from the medical evidence. Reference can also be made to Muhammad Akbar v. Muhammad Khan and others PLD 1988 SC 274 and Shehruddin v. Allah Rakhia 1989 SCM R 1461 at 1465 where testimony of injured witness was accepted. In assessing the value of evidence of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown 1969 SCM R 777 it was observed that to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not".
6. On the touchstone of the criterion as laid down in the above mentioned cases the statements of Mst. Robina Kosar (P.W.9), Mst. Shahnaz (P.W.10/abductee) and Mst. Shahnaz Bibi (P.W.11) have been examined and we are of the view that they were not interested witnesses and their versions have rightly been considered and believed by the Courts below. We have also examined the defence version, which appears to be afterthought and could not be substantiated by leading any convincing evidence. In view of the overwhelming evidence which has been produced by the prosecution the defence version has rightly been rejected by the Courts below.
7. We have also adverted to the contention of learned Advocate Supreme Court that Mst. Jannat Bibi was, found dead at her cot in oblivion of the fact that after she sustained serious injuries on her vital part she was brought to the cot and it was not something unusual which can cause any doubt. It is an admitted fact that crime-empty could not be recovered but in view of the eye account furnished by Mst. Robina Kosar (P.W.9), Mst. Shahnaz (P.W.10/abductee) and Mst. Shahnaz Bibi (P.W.11) duly corroborated by medical evidence it would have made no substantial bearing on merits of the case being supporting, corroboratory evidence. The prosecution has established the guilt to the hilt. The brutal murder of an elderly woman who had attempted to safe her daughter from the clutches of petitioner has been committed and hence question of any leniency does not arise. It would not be out of place to mention here that normal sentence of Qatl-e-Amd is death and in the absence of any mitigating or extenuating circumstances the sentence of death cannot be converted into life imprisonment as stressed time and again by the learned Advocate Supreme Court on behalf of petitioner. In this regard we are fortified by the dictum laid down in Sakhawat v.
The State 2001 SCM R 244; Muhammad Afzal v. Ghulam Asghar PLD 2000 SC 12; Muhammad Nazir v.
Tariq 1992 SCM R 983 and Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452.
' In the light of what has been stated above the petition being devoid of merit is dismissed and leave refused.