' CH. EJAZ YOUSAF, J.--- This criminal appeal with leave of the Court is directed against the judgment, dated 3-10-2002 passed by a Division Bench of the Lahore High Court, Lahore, whereby Appeal bearing No,439 of 1998 filed by the appellant, against his conviction and sentence recorded by the Additional Sessions Judge, Wazirabad, in case F.I.R. No,157 of 1995 under sections 320/34/109, P.P.C. Was dismissed.
2. Facts of the case, in brief, are that in the night between 17/18 May, 1995 report was lodged by one Muhammad Nazir with Police Station Saddar Wazirabad, District Gujranwala at 3-00 a.m. Wherein it was alleged that in the night of occurrence, the complainant and his wife Mst. Surrayya Begum, along with other family members were sleeping on the roof of the house. At about 2-00 a.m. They heard a sound from the rear side as some one was climbing on the roof. They woke up and saw, in the moonlight, that Ijaz Ahmad armed with pistol, Rafaqat Ali, armed with Chhuri and Asif Hussain, empty-handed, were standing around the cot of Zulfiqar Ali, son of the complainant. Zulfiqar Ali also woke up and was sitting on the cot when Asif Hussain raised Lalkara exhorting the co-accused to kill him. Thereupon Ijaz Ahmad, accused, fired two pistol shots at Zulfiqar Ali, one after the other, which landed on his right and left shoulders. Rafaqat Ali, accused gave Chhuri blow hitting Zulfiqar Ali on the left armpit. The complainant raised alarm whereupon the accused fled away from the side of the uninhabited house of Muhammad Sarwar Cheema. After their departure, they went near Zulfiqar Ali, and found that he had succumbed to the injuries. It was further stated in the report that two years prior to the occurrence the deceased had injured Rafaqat Ali and Ijaz, accused persons, in consequence whereof a case was registered and two months prior to the occurrence a compromise was effected between the parties, however, the accused persons had grudged against the deceased and on account thereof ultimately killed him. On the stated allegations formal F.I.R. Bearing No,157 of 1995 was registered at the said police station under sections 302/34/109, P.P.C. And investigation was carried out in pursuance thereof. On completion of investigation, the accused persons were challaned to the Court for trial. It would be pertinent to mention here that appellant Ijaz Ahmad, initially, remained at large for about nine months and was also declared as proclaimed offender but after arrest was challaned to the Court for trial along with the other co-accused persons.
3. Charge was accordingly framed to which the accused pleaded not guilty and claimed trial. In order to prove the charge and substantiate the allegation levelled against the accused persons, the prosecution produced 15 witnesses in all, whereafter the accused persons were examined under section 342, Cr.P.C. They, however, failed to lead evidence in their defence or to appear as their own witnesses in terms of section 340(2), Cr.P.C. On conclusion of the trial, the trial Court convicted appellant Ijaz Ahmad under section 302, P.P.C. And sentenced him to death along with a fine of Rs,1,00,000 or in default thereof to further undergo S.I. For two years. It was also ordered that half of the amount of fine, if recovered, should be paid to the L.Rs, of the deceased. The co-accused persons, namely Asif Hussain, Rafaqat Ali and Wajid Hussain, were however, acquitted of the charge.
4. Being aggrieved the appellant Ijaz Ahmad, approached the High Court by way of Criminal Appeal No,439 of 1998, which was dismissed vide the impugned judgment and Murder Reference No,285 of 1998 sent by the trial Court for confirmation of the sentence of death was answered in the affirmative, hence this appeal.
5. Qari Abdul Rashid, Advocate, learned counsel for the appellant has contended that since both eye-witnesses were related and interested in prosecution of the appellant, therefore their testimony could not have been believed; that no independent witness of the occurrence was produced; that since on the basis of same evidence three co-accused persons were acquitted by the trial Court, therefore, the appellant too, could not have been convicted; that since the recovery of revolver P.6 was not believed by the High Court, therefore, the rest of the evidence was not sufficient to record conviction thereon.
6. Mr. Muhammad Siddique Baloch, learned Deputy Prosecutor-General, Punjab, on the other hand while controverting the contentions raised by the learned counsel for the appellant, has submitted that F.I.R. Was lodged promptly just after an hour of the occurrence and not only names of all the accused persons were mentioned therein but specific roles were also attributed; that eye-witness account of the occurrence was given by inmates of the house, who were natural witnesses; that statements of eye-witnesses were duly corroborated by the medical as well as other evidence, therefore, the appellant was rightly convicted for the offence.
7. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case carefully, with their assistance.
8. The prosecution case rests on the ocular evidence, account whereof, at the trial, was furnished by P.W.1 Muhammad Nazir, complainant, and P.W.2 Surrayya Begum, who are father and mother of the deceased, respectively, the medical evidence, the evidence of abscondance and other circumstantial evidence. Though recovery of revolver P.6 has been declared by the High Court to be of no use for the prosecution as neither empty was recovered from the place of occurrence nor was sent and matched with the recovered weapon yet, the learned Judges in the High Court were of the opinion that rest of the evidence was sufficient to base conviction thereon. It would be pertinent to mention here that in the instant case occurrence took place at about 2-00 a.m. In the night between 17/18 May, 1995, whereas the report was lodged at 3-00 a.m. Just after an hour with the police station situated at a distance of about four kilometers from the place of occurrence, hence, there was hardly any delay. Further in the report not only names of all the accused persons were mentioned but specific roles were also attributed to them. Since the present appellant had enmity with the deceased and litigation was also going on between the parties, therefore, he being previously known, to the eye-witnesses, possibility of mistaken identity has to be ruled out and likewise it was not the case of substitution of the accused which otherwise is a rare phenomenon.
Both the eye-witnesses, at the trial, have given consistent and coherent statements which are corroborative of each other on all material points, hence their statements were rightly believed by both the Courts below. The medical evidence, account whereof at the trial was furnished by P.W.9 Dr. Muhammad Yousaf, further strengthen the prosecution case and leads to the conclusion that occurrence has taken place in the manner as suggested by the prosecution.
9. As regards the contention that both the eye-witnesses were related and thus, interested, therefore, their testimony could not have been believed, it may be pointed out here that mere relationship of a witness with the deceased is no ground for discarding his evidence if he, otherwise appears to be truthful and his presence at the place of occurrence is probable. Mere relationship of a witness with any of the parties would not dub him as an interested witness because interested witness is one who has, of his own, a motive to falsely implicate the accused, is swayed away by a cause against the accused, is biased, partisan, or inimical towards the accused, hence any witness who has deposed against the accused on account of the occurrence, by no stretch of imagination can be regarded as an "interested witness". In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him. This view receives support from the following reported judgments:---
(i) Sheraz Tufail v. The State 2007 SCM R 518, (ii) Khair Muhammad and another v. State 2007 SCM R 158, (iii) Amal Sherin and another v. State through A.-G. N.-W.F.P. PLD 2004 SC 371, (iv) Dosa and others v. The State 2002 SCM R 1578, (v) Mulla Riaz Ahmad v. The State 2002 SCM R 626, (vi) Feroze Khan v. The State 2002 SCM R 99, (vii) Farmanullah v. Qadeem Khan and another 2001 SCMR 1473,
(viii) Muhammad Amin v. The State 2000 SCM R 1784, (ix) Saeed Akhtar and others v. The State 2000 SCM R 383, (x) Mir Hassan and others v. State and others 1999 SCM R 1418, (xi) Sharafat Ali v. The State 1999 SCM R 329, (xii) Sardar Khan and others v. State 1998 SCM R 1823, (xiii) Wahid Bukhsh and others v. The State 1997 SCM R 1424, (xiv) Muhammad Arshad alias Achhi v. The State 1995 SCM R 1639, (xv) State of Rajasthan v. Hanaman AIR 2001 SC 282 and (xvi) State of Punjab v. Wassan Singh and others AIR 1981 SC 697.
' What to speak of related witnesses, evidence of an interested witness even, cannot be outrightly discarded unless it is proved that the witness had involved the accused for some ulterior motive and in case of interested witness, only as a rule of prudence and not as a rule of law, the Courts have emphasized that testimony of the witness may be evaluated with more than ordinary care and corroboration may be sought from the evidence. In this view, we are fortified by the following reported judgments:- (0 Abdul Majeed v. The State 2001 SCM R 90, (ii) Suraj Pal v. State of UP AIR 1994 Sc 748, (iii) State of Karnataka v. Bheemappa 1993 Cr.LJ 2609 (SC) and (iv) State of U.P. v. Ballabh Das and others AIR 1985 SC 1384.
' In the instant case both P. Ws. 1 and 2 being father and mother were natural witnesses and therefore, their presence in the house, at the relevant time, was rightly believed by both the Courts below. The contention, therefore, has no force.
10. As to the next contention that since on the basis of same evidence, co-accused persons, namely, Asif Hussain, Rafaqat Ali and Wajid Hussain were acquitted of the charge, therefore, the appellant could not have been convicted for the offence, it may be mentioned here that no doubt aforementioned accused persons were acquitted of the charge, by the trial Court, for want of proof, yet, it cannot be said that C the appellant was convicted on the basis of same evidence, because both the afore mentioned eye-witnesses had, at the trial, categorically stated that though they had charged Rafaqat Ali for inflicting Chhuri blow to the deceased yet, they were not sure as to whether it actually hit the deceased or otherwise and no overt act whatsoever was attributed to the third accused, namely, Wajid Hussain. On the contrary the present appellant was specifically charged by them for inflicting gunshot injuries to the deceased therefore, it can, by no stretch of imagination, be said that on the basis of same evidence the co-accused persons were acquitted.
This contention therefore, is devoid of force.
11. Upshot of the above discussion is that this appeal being misconceived is hereby dismissed.
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