' TARIQ SHAMIM, J.--- This judgment shall dispose of Criminal Appeal No,226-J of 2003 filed by Aqsal alias Kaloo and Murder Reference No,828 of 2002 submitted by the learned trial Court for confirmation or otherwise of sentence of death awarded to Aqsal alias Kaloo, appellant, as both the matters arise out of the same judgment, dated 14-11-2002.
2. Aqsal alias Kaloo son of Manzoor, appellant, has challenged the judgment passed by the learned Additional Sessions Judge, Shorkot, District Jhang, in case bearing F.I.R. No,292 of 1996, dated 14-6- 1996, registered with Police Station Shorkot City, for offence under sections 302, 148 and 149, P.P.C., whereby he convicted the appellant under section 302(b), P.P.C. And sentenced him to death with a direction to pay Rs,50,000 as compensation to the legal heirs of the deceased under section 544- A, Cr.P.C. And in default thereof to undergo simple imprisonment for six months.
3. The prosecution story in brief is that Zulfiqar, complainant (P.W.6) along with his son Zawar, Shaukat Hayat (P.W.7) and Sikandar arrived at Mauza Ludda Mahni from village Kohal Kalan to collect lease money for their land situated in the village. They stayed in the village overnight and the next morning i.e. On 14-6-1996, at about 7-00 a.m., the complainant along with his son Zawar and the aforementioned P.Ws. Went to the tube-well of Haji Fazil Pathan and while his son Zawar was taking a bath at the tube-well, Aqsal alias Kaloo appellant, armed with a rifle, Samander, armed with a .222 rifle, Nawaz, armed with rifle, Haq Nawaz, armed with a .12 bore gun, Manzoor, armed with a rifle and Noor empty-handed, arrived there. The accused Noor raised a Lalkara that Zawar (deceased) should be murdered for forcibly taking over possession of the land whereupon Aqsal appellant fired a shot with his rifle which hit Zawar (deceased) on his left cheek, the second shot was fired by Samandar, which landed on the backside of the right shoulder of the deceased and the third shot was fired by Muhammad Nawaz, which hit the deceased on the left side of his neck above his left shoulder. On receipt of the injuries Zawar (deceased) fell on the ground and died at the spot. The motive behind the occurrence was stated to be a quarrel between the accused and the complainant side 15/16 days prior to the occurrence over possession of land.
5.(sic) After investigation, report under section 173, Cr P.C. Was submitted in the learned trial Court.
Charge was framed against the appellant who denied the same, pleaded not guilty and claimed trial. The prosecution produced as many as 12 witnesses including Zulfiqar (P.W.6) and Shaukat Hayat (P.W.7) as eye-witnesses of the occurrence. At the conclusion of the prosecution evidence Aqsal appellant was examined under section 342, Cr.P.C. Who in response to the question as to why the case against him and why the witnesses had deposed against him, replied as under:--- "All the P.Ws. Are inter se related and belong to village Koohal Kalan District Toba Tek Singh which is about 50 miles from the place of occurrence. No body from village Ludda Mahni had supported the complainant's version, nor the persons residing in surrounding of the place of occurrence were cited as P.Ws. The P.Ws. Have deposed against me due to previous enmity. The dead body of Zawar deceased was found lying near the Khadda of tube-well owned by Haji Fazil Pathan on 14-6-1996.
The matter was reported to the police and after spot inspection the Investigating Officer had informed the parents of Zawar deceased and thereafter, on getting the information of murder of Zawar Hussain, Zulfiqar P.W. Along with Umar Daraz Lumberdar of Village Kohal Kalan came at the spot from the village Kohal Kalan and in league with the police falsely involved the accused due to his previous enmity."
' The appellant neither opted to appear as his own witness in disproof of the allegation levelled against him as required under section 340(2), Cr.P.C. Nor did he adduce any defence evidence. The learned trial Court after hearing the learned counsel for the parties, convicted the appellant and sentenced him as stated earlier which has been assailed through this criminal appeal.
6. The learned counsel for the appellant argued that the F.I.R. Was lodged after preliminary investigation; that there were material discrepancies and improvements in the statements of the eye-witnesses; that the evidence adduced by the witnesses was unreliable as they were closely related to the deceased and no independent witness was produced by the prosecution in support of its case; that the eye-witnesses did not belong to the place where the occurrence took place but in fact were residents of Toba Tek Singh; that the occurrence was an unwitnessed one; that the medical evidence was in conflict with the ocular account; that the recovery of weapon of offence from the appellant was of no consequence as the proceedings were conducted in violation of the law; that the appellant fired only one shot and did not repeat the fire and that the motive for the occurrence was not established by the prosecution through any cogent evidence at the trial, therefore the appellant deserved to be acquitted.
7. Conversely, the learned Additional Prosecutor-General, Punjab appearing on behalf of the State .Argued that the prosecution had successfully proved its case against the appellant through credible eyewitness account, evidence of motive, recovery of weapon of offence from the appellant and the medical evidence which was in conformity with the eye-witness account.
8. We have heard the learned counsel for the appellant, the learned Additional Prosecutor-General, Punjab and gone through the record with their able assistance.
9. It has been noticed that the F.I.R. In the instant case was lodged with reasonable promptitude and since the occurrence had taken place in daylight, the possibility of misidentification of the appellant or his false implication in the case stands excluded. The question of substitution also does not arise as there is no convincing reason for the complainant and others to let off the real culprit in order to falsely implicate the appellant. Substitution even otherwise is a rare phenomenon. Bloodstained earth was collected by the police from the place of occurrence which was taken into possession vide memo. Exh.P.D. And sealed into a parcel. Although the place of occurrence is disputed by the appellant, however, the recovery of blood-stained earth from the spot stands fully proved through evidence adduced by Shaukat Hayat (P.W.7) and the Investigating Officer (P.W.11).
10. The occurrence was witnessed by Zulfiqar, complainant (P.W.6) and Shaukat Hayat (P.W.7). The complainant deposed that about two years back he along with his son Zawar, Shaukat Hayat and Sikandar P.Ws. Arrived at Mauza Ludda Mahani from village Kohal Kalan in order to collect lease money in respect of their land situated in the village. They stayed overnight in the village and at about 7-00 a.m. The next morning Zulfiqar complainant along with is son and the aforementioned P.Ws. Proceeded to the tube-well of Haji Fazil Pathan. While his son Zawar Hussain was taking bath at the tube-well, the appellant armed with a rifle, Samander, P.O., armed with a .222 rifle, Nawaz, acquitted accused, armed with rifle, Haq Nawaz, acquitted accused, armed with .12 bore gun, Manzoor, P.O., armed with rifle and Noor empty-handed, arrived there. The accused Noor raised a Lalkara that Zawar (deceased) should be murdered for forcibly taking over possession of the land whereupon the appellant fired a shot which hit Zawar deceased on his left cheek, the second shot was fired by Samandar (P.O.) which landed on the backside of the right shoulder of the deceased and the third shot was fired by Muhammad Nawaz, acquitted accused, which hit the deceased on the left side of his neck above his left shoulder. On receiving the injuries the deceased fell on the ground and died at the spot. The motive behind the occurrence was stated to be a quarrel between the accused and the complainant over possession of land a few days prior to the occurrence. The other eye-witness of the occurrence namely Shaukat Hayat (P.W.7) deposed on the same lines as Zulfiqar complainant (P.W.6) and corroborated him in all material aspects of the case. This witness also signed the memo. Of recovery of blood-stained earth from the place of occurrence (Exh.P.D.) as well as eight crime-empties taken into possession by the police from the spot vide memo. Exh.P.E. Both the eye-witnesses have given a detailed account of the events leading to the murder of the deceased and are unanimous on all material points. It was vehemently argued by, the learned counsel for the appellant that Zulfiqar (P.W.6) was the father of the deceased whereas Shaukat Hayat (P.W.7) was also related to him, therefore, their evidence could not be relied upon without independent corroboration from some independent source which was not forthcoming from any quarter. We are afraid the arguments is without any substance as in the first instance mere relationship of the witnesses with the deceased is not a valid ground for excluding their testimony from consideration and secondly it has been observed that Shaukat Hayat (P.W.7) is a distant relative of the deceased. The eye-witnesses are natural witnesses whose presence at the place of occurrence is well-explained. Insofar as the contention regarding absence of any independent corroborative piece of evidence in support of ocular account is concerned, it has been noticed that the medical evidence which was furnished by Dr. Ejaz Haider Khan (P.W.10) is in conformity with the eye-witness account and has provided necessary corroboration thereto. According to the F.I.R., the appellant had caused an injury on the left cheek of the deceased which fact is fully borne out from the statement made by Dr: Ejaz Haider Khan (P.W.10). The injuries observed by the doctor on the person of the deceased are noted hereinbelow:---
(1) An abrasion 2 c.m x 1-1/2 c.m. On the back of right chest -upper most part.
(2) Almost rounded wound 3-1/2 c.m. x 3 c.m. On the left cheek.
' The margins were lacerated, inverted and blackened. This was entry wound caused by fire-arm weapon. No corresponding exit wound was found. On exploration of the wound, the following noticed:-
(i) Fracture of left maxilla along with upper teeth of this side.
(ii) Fracture of right maxilla along with teeth.
(iii) Fracture of cervical vertebrae No,2.
(3) An oval wound 4-1/2 c.m. x 3 c.m. In between the left side of neck and tip of left shoulder -- more towards neck. The margins were lacerated, inverted and blackened. This was entry wound caused by fire-arm weapon. No corresponding exit wound was found. On exploration of this wound, it was found that after piercing the left scapula bone it entered the left chest.
' Injury No,2 corresponds with the injury attributed to the appellant by the eye-witnesses and according to the doctor, this injury had caused extensive internal damage and was a direct cause of death of the deceased. The time placed by the doctor between death and post-mortem examination was between 8 to 12 hours which also corresponds with the time of occurrence as narrated by the witnesses.
11. The learned counsel for the appellant has laid much emphasis on the argument that there are material contradictions and improvements in the statements made by the eye-witnesses. We are afraid the argument is devoid of any merit as despite being subjected to lengthy cross- examination the testimony of these witnesses has remained unshattered. In fact the defence despite having made a concerted effort to extract anything favourable from the said witnesses has completely failed to do so. In any case, minor discrepancies in the statements of the witnesses can crop up due to passage of time between the date of occurrence and recording of their statements by the trial Court which in the present case comes to about 2 years. Even otherwise, the discrepancies pointed out by the learned counsel for the appellant are trivial in nature and in our opinion do not in any way affect the merits of the prosecution case or cast doubt on the veracity of the witnesses.
12. It has been argued by the learned counsel for the appellant that the motive as stated by the complainant behind the occurrence was weak and not proved at the trial. It is pointed out that mere insufficiency of motive, lack, non-proof or total absence thereof is of no consequence as it is only a supporting piece of evidence which relates to the state of mind of an accused and can be formed even at the spur of the moment. However, we have noticed that with the exception of statement made by Zulfiqar complainant (P.W.6) as to the motive behind the murder there is no other evidence on the record in support thereof. The allegation that an altercation had taken place between the deceased and the appellant 15/16 days prior to the occurrence has also remained unsubstantiated. Thus, to the extent of motive, the prosecution evidence is lacking. However, as stated earlier, it is only a supporting piece of evidence and nothing turns on it alone.
13. The other incriminating piece of evidence against the appellant is the recovery of a .7 mm rifle (P.2) used by him in commission of the murder which was recovered from the appellant by the Investigating Officer on his arrest. The empties of .7 mm rifle recovered from the place of occurrence and taken into possession vide memo. Exh.P.H. Were wedded with the rifle recovered from the appellant which is evident from the report of the Forensic Science Laboratory (Exh.P.Q.).
Therefore, in view thereof, the factum of recovery of weapon of offence stands conclusively proved.
14. Insofar as the plea taken by the defence that the deceased was murdered at the tube-well of Haji Fazal Pathan by Qalb Ali who had abducted the mother of the deceased, the same is not tenable as firstly the abduction of mother of the deceased by the said Qalb Ali was not proved through any evidence by the appellant and secondly it does not appeal to mind that the real father of the deceased would let off Qalb Ali in order to falsely implicate and involve the appellant.
The documents Exhs.D.B to D.G. Produced by the accused in his defence at the trial in our opinion do not materially further the case of the appellant.
In view of what has been discussed above, we have no hesitation in holding that the prosecution has succeeded in proving its case against the appellant beyond any reasonable doubt through credible ocular account corroborated by the medical evidence and the evidence of recovery of weapon. Consequently, the appeal filed by the appellants fails and the same is "dismissed." The conviction and sentence of death awarded to him by the learned trial Court is maintained. The murder reference is answered in the "affirmative."