' ABDUL SHAKOOR PARACHA, J.---Shah Nawaz and Kafayatullah through Criminal Appeal Nos. 1992 of 2000 and 12 of 2001, respectively, impugn the judgment dated 14-12-2000, passed by Additional Session Judge, Mianwali, whereby they were convicted under section 302 (b), P.P.C. For committing Qatl-e-Amd of Ghulam Majeed son of Akbar Khan in case F.I.R. No,494 dated 29-12-1998, registered at Police Station City, Mianwali, for an offence under sections 302/34, P.P.C. And sentenced as under:--
(i) Shah Nawaz to death;
(ii) Kafayatullah to imprisonment for life; ' Each of the convicts was further directed to deposit and amount of Rs,50,000 to be distributed among the legal heirs of the deceased as compensation. In case of default thereof, they were to undergo R.I. For four months each. Muhammad Anwar, complainant, has filed Criminal Appeal No,103 of 2001 against the acquittal of Sanaullah. Muhammad Anwar has also filed Criminal Revision No,65 of 2001 seeking enhancement of sentence of Kafayatullah as well as amount of compensation. Murder reference is also before us for confirmation of death sentence of Shah Nawaz. All these matters are being disposed of by this judgment.
2. The prosecution story, in brief, as narrated in F.I.R. Exh.PC, recorded at Police Station City, Mianwali, by Hafiz Muhammad Aslam, S.-I. (P.W.) on 29-12-1998 on the statement of Muhammad Anwar Khan (P.W.4), was that Ghulam Majeed, complainant's brother was running a shop known as `Niazi Photo Studio' nearby southern gate of General Bus-stand Mianwali: on the same day at 6-30 p.m. When the complainant along with his brother Ghulam Majeed Khan, Zafar Ali and Ahmad Hassan after Iftari of fast was sitting in the shop, Sanaullah, Shah Nawaz and Kafayatullah along with two unknown persons called Ghulam Majeed outside the shop; as Ghulam Majeed came out of the shop, all the accused, armed with .30 bore pistols, fired at Ghulam Majeed with their respective weapons hitting on various parts of his body; complainant's brother fell on the ground and succumbed to the injuries; all the accused fled away with their weapons.
3. The motive for the occurrence, as stated in the F.I.R. (Exh.PC), was that Shah Nawaz had taken an amount of Rs,40,000 as loan from Ghulam Majeed, and Sanaullah, who was accused of a theft case, had suspicion that he was implicated in the said case at the instance of Ghulam Majeed.
4. Hafiz Muhammad Rustam, S.-I./ S.H.O. P.W.6, the investigating officer, after recording the F.I.R.
Exh.PC went to the spot and prepared injury statement and inquest report of the deceased vide Exh. PG and Exh.PH, respectively; he collected blood-stained earth from the place of occurrence vide memo Exh.PE and dispatched the dead body to the mortuary for postmortem examination. He also secured the electric bulb vide memo Exh.PF; he recorded the statement of the P.Ws. After post- mortem examination he took into possession the last-worn bloodstained clothes of the deceased, i.e, Chadar P.3 shirt P.4, Shalwar P.5, vest P.6, a pair of Chappal P.7/1-2, a cap P.8 and a sealed packet vide memo Exh.PJ and got the memo. Attested by Alam Khan Constable. On 30-12-1998 he got prepared site-plan of the place of occurrence from the Draftsman vide Exh.PB and PB/1 and gave his notes in red ink there-under. On 15-2-1999 he arrested Shah Nawaz and Kafayatullah accused. On 25-12-1999 Shah Nawaz accused while in police custody led to the recovery of pistol P.1, which was taken into possession vide memo Exh.PD, attested by Muhammad Anwar. During investigation, he found Sanaullah (acquitted accused) as innocent whereas Shah Nawaz and Kafayatullah found involved in the case. On 21-3-1999 he challaned the accused.
5. Dr. Mehr Khan, the then Medical Officer, D.H.Q. Hospital, Mianwali, P.W.1, on 29-12-1998 conducted the postmortem examination on the dead body of Ghulam Majeed, and found the following injuries:--
(1) An entry wound of fire-arm 1/2 x 2/3 c.m. On the right side of nose.
(2) An exit wound of fire-arm 2 1/2 c.m. 1 1/2 which was 1cm just to the front of the left ear and 7 c.m from the left eye.
(3) An entry wound of fire-arm 1/2 c.m. x 2/3 c.m. At the junction of the neck with right angle of the mandible (right).
(4) An exit wound of fire-arm 1 1/2 c.m. x 1 c.m. On the back of left of neck over the mid line.
(5) An entry wound of fire-arm 1/2 c.m. x 2/3 c.m. On the left side of the abdomen outer side just below the rib cage.
(6) An exit wound of fire-arm 2 c.m. 1/2 c.m. Being 1 1/2 c.m. Higher to injury No,5.
6. In the opinion of the doctor, the cause of death was severe haemorrhage and shock caused by injuries Nos. 1, 3 and 5 which were sufficient to cause death in the ordinary course of nature collectively. Injuries Nos.3 and 5 were sufficient to cause death individually as well. All the injuries had been caused with fire-arm and were ante-mortem. Duration between injuries and death was immediate whereas between death and postmortem was 2 to 4 hours. He proved the post- mortem report Exh.PA and sketch of injuries Exh.PA/1.
7. To prove its case, prosecution produced as many as 10 witnesses in all. Dr. Mehr. Khan, P.W.1, conducted the post-mortem examination on the dead body of the deceased. P.W.2 Muhammad Shafique Khan, Draftsman, prepared the site-plan Exhs.PB and PB/1 on the direction of the police and pointation of the P.Ws. P.W.3 Abdul Aziz, constable, on 5-1-1999 was handed over a parcel containing bloodstained earth by Abdul Rehman MHC for onward transmission to the office of Chemical Examiner, Lahore, which he delivered to the concerned office on the next date. Ocular account was furnished by Muhammad Anwar, complainant of the case, P.W.4, and Zafar Ali Khan, P,W.5. Hafiz Muhammad Rustam, S.-I. P.W.6 conducted the investigation of the case as discussed supra. Hadayat Ullah Khan, P.W.7, identified the dead body of Ghulam Majeed at the time of autopsy. Attaullah, H.C. P.W.8, received pistol .30 bore for its safe custody in the Malkhana. He stated that on 17-3-1999 he delivered the said parcel to H.C. Khuda Bakhsh for onward transmission to the office of Forensic Science Laboratory, Lahore. The prosecution also produced in evidence report of the Chemical Examiner Exh.PK, report of the Serologist as Exh.PL and that of the Forensic Science Laboratory Exh. PM and closed its evidence.
8. After conclusion of the prosecution evidence, the accused persons made their statements under section 342, Cr.P.C. Wherein they pleaded their innocence. Shah Nawaz, accused took the plea of alibi and in answer to question No,6 "Why this case against you and why the P.Ws. Have deposed against you" he stated that:-- ' "I am resident of Samandi wala which is at distance of about 90 Kms from Mianwali city where no educational facilities are available as it is a village. My father Ghulam Sarwar who is an employee of Health Department was serving at Sikandar Abad Hospital. My father constructed a house in Mohalla Ibrahim Abad for me, my younger brothers Aamir Nawaz and Shah Zeb and for my two sisters. He got us admitted in different educational institutions at Mianwali and we started living in Mohalla Ibrahim Abad about 7/8 years before this occurrence. I got admission in the Central Model High School Mianwali and passed my Matric examination and F.Sc. (Medical) in 1st Division. In our neighborhood real sister of Ghulam Majeed deceased was residing with her husband. Zafar All P.W.
Who is a real Bhanja of the deceased was also residing in our neighborhood. Muhammad Ali his brother was my class fellow. Ghulam Majeed deceased was on visiting terms with his sister and as Muhammad Ali was my class-fellow so I knew Ghulam Majeed in that connection. I also called him as my Mamo as he was a real Mamo of my class-fellow and friend of Muhammad Ali.
Unfortunately prior to this occurrence I was in need of photographs for my admission forms. I went to the shop of the deceased who was running a photo studio. The deceased offered me tea and put some intoxication in it and I became unconscious after taking the tea. Ghulam Majeed deceased got some naked photos of mine and after some days he started blackmailing me. He not only demanded money from me but also pressurized me for illicit relations. At that moment I came to know that Ghulam Majeed deceased was record-holder, dacoit and man of bad character having every connection with underground criminal mafia and was also dealing in narcotics. I told all the facts to my father who contacted the deceased and his family and the matter even went up to the level of S.S.P. Mianwali. Ghulam Majeed deceased promised not to blackmail me and also that he will destroy all the photographs. After a silence of some days he again started blackmailing. My father took me to Rawalpindi where I got admission in an academy known as Col. Saeed Academy Mareet Chauk Rawalpindi. My father arranged a rented house in Madina town Lane No,3/B Faiz Abad Rawalpindi. The owner of the house was Riaz Hussain son of Mansab Dad Khan caste Rajput who was resident of Dhoke Dadan Khan Shamas Abad Rawalpindi and was permanently r/o village Kothi Tehsil Gujar Khan District Rawalpindi. I started living in the said rented house and started studying in the aforesaid Academy. Riaz Hussain aforesaid was supervising me as no one except him was there at Rawalpindi of mine. I fell ill seriously and was shifted to General Hospital Rawalpindi where, I was got admitted by the aforesaid Riaz Hussain on 28-12-1998 at Srl No,328, C.R. No,3634. I was admitted in Ward No,4 I remained admitted in the said hospital from 28-12-1998 to 1-1-1999. I have got nothing to do with the above said occurrence and that I am absolutely innocent. The deceased was killed by some unknown assailants and I have been wrongly involved in this case only due to suspicion and previous enmity. The motive has been even created by the complainant. My father owns 150 Kanals of land which is irrigated one and also getting pay equal top Rs,8000. Riaz Hussain son of Mansab Dad who got me admitted in the hospital and in whose house I was residing at Rawalpindi died of heart attack on 25-10-2000".
' Kafayatullah accused in answer to question No,3 stated that:- ' "I am innocent. I have been involved in this case by the complainant party due to longstanding enmity with the complainant and their relatives. I am also inimical towards Shahnawaz co- accused due to the dispute about giving the hand of his sister in marriage of my brother in exchange. I have got no relation, or friendship with other co-accused persons. I appeared voluntarily soon after the occurrence before the police but my arrest was in connivance with the complainant party deferred. I was . Shown arrested much later by the local police in order to show my avoidance of arrest."
' Sanauallah, acquitted accused, in answer to question No,4 stated that:-- ' "I have been falsely involved in this case at the instance of Dost Muhammad Khan and Saleh Muhammad sons of Muhammad Ramzan who run photo studio shop adjacent to the shop of Ghulam Majeed deceased. Dost Muhammad and Saleh Muhammad aforesaid have got old enmity with me and my family was prevailed upon the complainant party and got him falsely involved in this case. During investigation I produced my defence evidence which was accepted and I was declared as innocent even by the complainant party and all the investigating agencies and the complainant party ultimately satisfied himself about my innocence and the P.Ws. Made statement before the Investigating Officer about my innocence."
' None of the accused opted to make statement in his defence under section 340(2), Cr.P.C. Shah Nawaz and Kafayatullah, accused produced in their defence five DWs, namely, Muhammad Sultan, Naib Moharrir, DW-1, Mehr Khan, MHC D.W.3, Ghulam Murtaza, Inspector/ S.H.O., DW-4, Zafar Habib, MHC DW-5. These DWs produced the record of different criminal cases registered against Ghulam Majeed, deceased showing that he was a criminal. D.W.2 Dr. Khaqan Qadir, Medical Officer, General Hospital, Rawalpindi produced the record showing that Shah Nawaz, accused, was admitted in the hospital on 28-12-1998 at 1-15 p.m. For treatment of some disease and discharge on 1-12-1999.
9. After conclusion of the trial the learned Additional Sessions Judge convicted Shah Nawaz and Kafayatullah, as aforesaid, and acquitted their co-accused Sanaullah of the charge by extending the benefit of doubt.
10. Before us, Khawaja Sultan Ahmad, Advocate, learned counsel for Shah Nawaz, convict- appellant, argued that the prosecution has failed to prove any motive; no reliance can be placed on the testimony of the eye-witnesses because the same is based on contradictions and discrepancies; medical evidence is not in line with the ocular account and the recovery is not helpful to the prosecution because not a single empty was recovered from the spot; eye-witnesses are closely related to the deceased and therefore their statements cannot be relied upon within any Independent corroboration; Ghulam Majeed, deceased, was a habitual offender; he was involved in number of cases therefore his client is entitled to acquittal. It has been vehemently argued that initially five persons were nominated in the F.I.R. But the entire prosecution story has been changed and during trial three persons were made responsible for causing the death of Ghulam Majeed.
11. Mr. Amir Abdullah Khan Niazi, learned counsel for the. Kafayatullah, convict-appellant, maintained that there are improvement in the statement of the prosecution witnesses made during the trial; statement of the Investigating Officer negates the prosecution case; the case of his client is distinguishable from the case of Shah Nawaz, appellant, because according to the Investigating Officer he was empty-handed at the time of occurrence; and two unknown persons have not been challaned.
12. On the other hand, Malik Saeed Hassan, learned counsel for the complainant vehemently argued that Shah Nawaz, convict-appellant introduced an afterthought plea of alibi which cannot be accepted. He further contends that the witnesses are reliable and trustworthy and their relationship with the deceased is no ground to reject the testimony of the truthful witnesses; they cannot be treated as interested witnesses because they had no malice to involve the accused falsely in the case; statements of the witnesses are corroborated by the medical evidence and the prosecution was able to prove its case beyond any shadow of doubt.
13. Before we proceed to discuss the motive in this case, we would like to advert to the ocular account furnished by Muhammad Anwar, P.W.4, and Zafar Ali, P.W.5. The case of the prosecution was that the above mentioned Muhammad Anwar and Zafar Ali along with Ahmad Hassan (not examined) and Ghulam Majeed after Iftar were sitting in the Niazi Photo Studio when Shah Nawaz, Kafayatullah and Sanaullah along with other two unknown persons came and called Ghulam Majeed. When Ghulam Majeed stepped out of the shop at their call, all the accused, who were identified in the light of electric bulb, fired at him with their respective weapons, which hit the deceased on various parts of his body. The learned counsel for the appellant has laid much stress on the improvements made by the prosecution regarding the number of the accused. To our mind, this objection cannot sustain, because it is not possible for the prosecution to give a photographic details of the occurrence in the F.I.R. In panic situation. The maxim falsus in uno falsus in omnibus is not applied in the administration of criminal justice in Pakistan. The Courts have to sift the grain from chaff as held in the case reported as Ahmad Khan v. Nazir Ahmad etc. (1999 SCM R 803). After thorough investigation, convict-appellants were found guilty and therefore they were sent for trial.
Both the P. Ws. Of the ocular account are consistent before the Court regarding the number of accused, fire-arm weapons used by them in the commission of the Murder, regarding time and place of occurrence. The testimony of Muhammad Anwar and Zafar Ali, P.W.4 and 5, respectively, cannot be rejected on the ground that they are related to the deceased. It has been held in the case of Abdul Rashid 1997 SCM R 373 that mere relationship of witnesses does not necessarily render the account of occurrence subject to doubt. We have noted that though Kafayatullah, convict-appellant, is uncle (Mamo) of Shah Nawaz, convict-appellant, whereas he is also Mamo of complainant Muhammad Anwar. We have also noted that Kafayatullah and Shah Nawaz are also related with Muhammad Anwar and Zafar Ali P.Ws. In this view of the matter, there is no reason for the said witnesses to falsely involve their relatives, namely, Kafayatullah and Shah Nawaz in the base. There is no motive available to the witnesses to falsely implicate the convict-appellants in the case. Therefore, these witnesses cannot be termed as interested witnesses. It has been ruled in the case of Shafat Ali (1999 SCM R 329) that 'interested witness' is one who has a motive to falsely implicate a person. Mere relationship with deceased is no basis to discard evidence of such a witness. It is true that the deceased was involved in a number of cases, but this is no ground to reject the testimony of eye-witnesses. The other argument of the learned counsel for the convict- appellants is that no independent witness has come forward to support the prosecution version. It is the quality of evidence which is relevant and not the murder and quantity of the witnesses.
Therefore merely because no witness from the locality has been produced, it cannot be said that the prosecution was not able to prove its case. Even otherwise, it is to be observed that on account of fear of creating enmity with any party generally people do not come forwards to give evidence in such like cases. The medical evidence also corroborates the ocular evidence furnished by P.W 4 and 5 Muhammad Anwar and Zafar Ali. Dr. Mehr Khan. P.W.1 has opined that the death was caused due to shock caused by injuries Nos. 1,3 and 5, which were result of fire-arm and were ante- mortem. These injuries were entry wounds, whereas injuries Nos.2,4 and 6 were exit wounds. Injuries Nos.3 and 5, in the opinion of the Medical Officer, were sufficient to cause death individually.
14. Shah Nawaz while in police custody led to the recovery of pistol. No empty was recovered from the place of occurrence, therefore, the recovery in this case is inconsequential Promptly lodged F.I.R. Within half arr hour of the occurrence ascribing role to the accused eliminates the possibility of false implication. The plea of alibi taken by accused Shah Nawaz that he was admitted in the General Hospital, Rawalpindi and remained under treatment there from 28-12-1998 to 1-1-1999 is not acceptable because this is after-thought as this plea of alibi was not taken by the appellant during investigation. The accused has not been able to prove that he was same Shah Nawaz who remained admitted in the General Hospital, Rawalpindi, and was patient of acute myeloid leukemia commonly known as blood cancer. The parentage, age, caste of Shah Nawaz who remained admitted in the Hospital was not given in Exh.DG. In this view of the matter, the learned trial Court has rightly rejected the plea of alibi of Shah Nawaz, convict-appellant.
15. The plea raised by Kafayatullah convict-appellant in his defence was that the P.Ws. Were inimical to him for longstanding enmity between their families. He has relied on the copies of F.I.Rs, No,80 of 1957 and No,70 of 1965. These F.I.Rs relate to the occurrence took place about 35/45 years back, which cannot be a valid ground for false implication of Kafayatullah, particularly when he is equally related to the complainant and the deceased.
16. So far as Sanaullah, acquitted accused, is concerned, the investigating agency has declared him innocent. The motive against him is not proved. The opinion of the investigating agency has not been challenged.
17. This brings us to discuss the motive. The case of the complainant was that Shah Nawaz owned Rs,40,000 from the deceased. As the loan was not returned by the accused to the deceased in spite of repeated demands, Shah Nawaz and Kafayatullah, appellants, planned to kill the deceased. It was further asserted that Sanaullah was challaned in a theft case and he had suspicion that he was implicated in the said case as per information furnished by the deceased.
The learned trial Court has recorded a finding that, "The motive is guess work of prosecution. It is always a double edged weapon." In the presence of this finding of the trial Court in the impugned judgment coupled with the principle of law that the accused can take as many pleas as are available to him, he cannot be convicted for non-proving of any of the pleas taken by him. It is the prosecution who is to prove the case beyond any reasonable doubt under the law. There is not evidence that Shah Nawaz had owed the amount of Rs,40,000 from the deceased. The motive as alleged by the prosecution was not proved on the record. It has been ruled in the case of Muhammad Ashraf (1998 SCM R 1764) that, where motive is not proved as mentioned on F.I.R., capital punishment is not at all warranted. Therefore, we are led to the conclusion that the prosecution has failed to prove the motive as set up by it.
18. For the reasons stated above, the appeals of the convict-appellant fail and are dismissed.
However, we convert the death sentence of Shah Nawaz into imprisonment for life. The sentences of fine, or imprisonment in default whereof, of both the convicts are also maintained.
19. For the same reasons, criminal revision filed by the complainant seeking enhancement of sentence of Kafayatullah and in the amount of compensation is also dismissed.
20. Sanaullah has been acquitted through the well-reasoned judgment, which needs no interference. Resultantly the criminal appeal of the complainant filed against the acquittal of said Sanaullah is also dismissed.
' Murder reference in answered in the negative.