As the above titled two appeals and a reference arise out of the same incident and decision; therefore, these are being consolidated and disposed off by this single judgment.
The brief facts of the instant case are that a written report was lodged by Anser Mahmood, complainant, at Police Station Afzalpur on 20.9.2006 at 11:00 p.m. alleging therein that he alongwith his brothers Muhammad Asghar and. Muhammad Irfan, and parents Muhammad Akram and Mst.
Irshad Begum was present at home when at about 11:00 p.m. accused Yasir and his father Manazir (who are brother-in-law and father-in-law of Muhammad Irfan) entered there. Manazir Hussain entered into the veranda of complainant's house. Manazir Hussain asked that he wants to take her daughter Mst. Siaqa Parveen with him but her husband Muhammad Irfan told him that he may take her with him tomorrow morning. Meanwhile, Yasir, who was armed with a pistol entered into the house and started firing. The first fire landed on the left side of abdomen of the complainant.
The second one hit Muhammad Asghar upon the right side of his neck and the third one hit Muhammad Han on his chest, who got seriously injured and was taken to DHQ Hospital Mirpur but succumbed to the injuries. The complainant along-with his brother Muhammad Asghar and parents Muhammad Akram and Mst. Irshad Begum witnessed the occurrence.
The motive behind the occurrence has been stated to be a domestic dispute and resentment.
On this report: a case under Sections 324, 458 & 34, APC was registered against the accused at Police Station Afzalpur by Nadeem Arif SI/SHO (P.W.16).
On 21st September 2006 arriving at the spot Nadeem Arif SI Police (P.W.16) prepared an inquest report Exh.PM. On the same day, he collected the blood fallen down on the bricks, the place of occurrence, vide recovery memo Exh.PC and the lead bullet of revolver vide recovery memo Exh.PD in presence of Abdul Rasheed (P.W.5) and Allah Ditta (P.W.6). The bloodstained clothing of the deceased and a lead bullet of revolver extracted from the body of the deceased during the postmortem alongwith small box were taken into possession by Zulfiqar Ali ASI police (P.W.14) vide recovery memo Exh.PE & PF in presence of abovementioned witnesses. On the same day, Nadeem Arif SI Police prepared the injury forms of Ansar Mahmood complainant Exh.PW and Muhammad Asghar (P.W.2) Exh.PV, and got them medically examined vide medical examination reports Exh.PO & PQ. He also prepared injury form of Muhammad Irfan deceased Exh.PL on 21.9.2006.
The postmortem of the dead body of Muhammad Irian deceased was performed on 21.9.2006 by Dr. Shakeel Asif Civil Medical Officer Rural Health Centre Pindi-Subhorwal AK vide postmortem report Exh.PN. He noticed the following injuries on the body of the deceased caused by fire-arm:-- Wound of entry of bullet is just front line of left side of chest 2 inches left to midline of chest. There is blackening and tattooing around edges of wound. Diameter is (3x3 cm). Margins are irregular and are marked blackened. The pathway of bullet is not straight but it is oblique running towards abdominal area & bullet is found just backside of chest near the last 11&12 ribs, damaging the muscles of back."
On 22.9.2006, the bloodstained shirt and trousers of Muhammad Asghar injured P.W. and bloodstained shirt and trousers of injured complainant Anser Mahmood were taken into possession vide recovery memos Exh.PG & PH in presence of Abdul Rasheed (P.W. 5) and Allah Ditta (P.W. 6) .
On the same day, the site-plan Exh.PS was prepared by Shahid Iqbal Patwari (P.W.10).
On 24.9.2006, the accused-persons were apprehended and on 1.10.2006 Yasir Mahmood convict- appellant led to recovery of 32-bore revolver, which was taken into possession vide recovery memo Exh.PJ attested by Abdul Aziz (P.W.7) and Khalil Ahmad (P.W.8). On the same day, the license of Revolver No, 4509 was recovered on the pointation of Manazir Hussain accused vide recovery memo Exh.PK in the presence of aforesaid witnesses.
In the light of document Exh.PYY, it was reported by Chemical Examiner vide its report dated 17.10.2006 that the cotton Shalwar, Qameez and Bunyan of Muhammad Irfan deceased, Shalwar, Qameez and Azarband of Muhammad Asghar injured and Shalwar and Qameez of Anser Mahmood injured were stained with blond.
It was reported by Director Forensic Science Laboratory Lahore in the light of document Exh.PWW that crime empties were found to be fired by .32-bore revolver recovered from Yasir Mahmood, accused. However, the lead bullets of .32-bore revolver did not bear sufficient data for comparison.
After necessary investigation, the accused were challaned before District Criminal Court Mirpur on 13.10.2006 to face trial in offences under sections 302, 324; 337-D, 337-F (3), 337-F(4) & 458, APC read with section 13/20/65 Arms Act. The charge was framed against the accused under section 242, Cr.P.0 but they denied the guilt and claimed the trial.
In support of its case, the prosecution produced Anser Mahmood (P.W.1), Muhammad Asghar (P.W.2), Muhammad Akram (P.W.3), Allah Ditta (P.W.6), Abdul Aziz (P.W.7), Khalil Ahmad (P.W.8), Dr. Shakeel Asif (P.W.9), Shahid Iqbal Patwari (P.W.10), Maroof Akram Head Constable Police (P.W.11), FazI Ahmad police Constable No, 258 (P.W.12), Rahm Dad (P.W.13), Zulfiqar Ali ASI Police (P.W.14), Irfan Saleem DSP (P.W.15), Nadeem Arif Inspector Police(P.W.16) and Nasir `Farooq Chaudhry PP. After completion of evidence by the prosecution, the accused were asked to explain the prosecution evidence and other incriminating material produced by the prosecution, as required by Section 342, Cr.P.C. but they refuted the prosecution evidence and also did not choose to be examined on oath under Section 340(2), Cr.P.C. No evidence was produced in defense.
The District Criminal Court Mirpur, after hearing arguments of the learned Advocates for the parties and the State, convicted and sentenced Yasir Mahmood to death as `Tazeer' under Section 302(b)
APC for committing the murder of Muhammad Irfan and also awarded sentence of one year R.I. alongwith Daman Rs,30,000/- under Section 337-F(4) for inflicting fire-arm injury to Muhammad Asghar. He was further sentenced to one year R.I. and Rs,30,000/- 'Daman' under Section 337-F(3) for causing injury to Anser Mahmood. The amount of `Daman' after realization shall be paid to Muhammad Asghar and Anser Mahmood injured. He was also sentenced to six months S.I. under Section 13/20/65, Arms Act. The benefit of Section 382-B, Cr.P.0 was extended in his favour, whereas Manazir Hussain accused was acquitted of the charge by giving him the benefit of doubt vide judgment dated 30.11.2007.
It is the aforesaid judgment dated 30.11.2007, which has been challenged before this Court in two separate appeals. Appeal No, 6/2008 filed by Yasir Mahmood accused for setting aside the aforementioned sentences awarded to him by District Criminal Court and Appeal No, 14/2008 filed by Anser Mahmood complainant & two others against the acquittal of Manazir Hussain, accused, whereas a reference has also been made by District Criminal Court, Mirpur for confirmation of death sentence of Yasir Mahmood, convict-appellant.
Sardar Muhammad Azam Khan, Advocate, the learned Counsel for the accused-appellant, vehemently argued that the trial Court fell in grave error while awarding death sentence to Yasir Mahmood accused because the prosecution has miserably failed to prove its case beyond any shadow of reasonable doubt. The learned Counsel further contended that the perusal of FIR shows that no overt act has been attributed to Manazir Hussain accused; therefore, he was rightly acquitted of the charge by the Court below. The learned Counsel pointed out that according to the prosecution the blood of deceased fallen down in area of one inch was collected by the prosecution but blood is not present on the cotton taken into possession by I.O. during investigation, which creates grave suspicion upon the prosecution story. The learned Counsel maintained that Mst. Irshad Begum mother of deceased was cited as P.W.4 but withheld by the prosecution for unknown reasons. Similarly, Abdul Rasheed (P.W.5) a witness for numerous recoveries was also abandoned by the prosecution, which raises the presumption that if the abovementioned witnesses were produced they would not have supported the prosecution version. The learned Counsel also submitted that according to the report of Arms Expert lead bullet of .32-bore revolver allegedly extracted from the body of the deceased did not bear sufficient data for comparison; therefore, the report of Arms Expert does not provide any corroboration to the eye- witnesses account. The learned. Counsel criticized the recovery proceedings of revolver recovered at the pointation of Yasir Mahmood accused and submitted that the weapon of offence was recovered from an open place far off from the place of occurrence. Furthermore, no respectable of locality was associated with the recovery proceedings and both the recovery witnesses belong to village Afzalpur who are closely related to the complainant; therefore, the recovery of weapon of offence is fake and not worthy of any. credence. Similarly, the recovery of license of revolver is also fictitious because the accused was arrested on 24.9.2006 and said recovery was made on 1.10.2006. The learned Counsel zealously argued that according to the statement of Patwari the site-plan has been prepared in an illegal manner; therefore, it does not support the prosecution version. The learned Counsel laid great stress upon the preparation of injury form of Muhammad Irfan deceased Exh.PL and submitted that Muhammad Irfan deceased was straightaway taken to DHQ Hospital Mirpur from the place of occurrence where he succumbed to the injuries on 21.9.2006; therefore, the preparation of injury form on 20.9.2006 is not reliable. The learned Counsel agitated that the time of death and the time of postmortem were tampered in the postmortem report, which casts serious doubt upon the veracity of postmortem report. The learned Counsel went on to argue that according to Muhammad Asghar (P.W.2), he did not go to the police station; therefore, the preparation of his injury form is also doubtful. According to the learned Counsel, the medical report of Muhammad Asghar has been tampered; therefore, it cannot be relied upon. The learned Counsel vigorously argued that at the time of filing of challan the Chemical Examiner report Exh.PZZ was produced, which relates to Muhammad Iqbal deceased and not to Muhammad Irfan deceased; therefore, till filing of challan the prosecution was not sure about the report of Chemical Examiner; therefore, the cancellation of alleged chemical examiner report Exh. PZZ and the filing of fresh report of chemical examiner Exh. PYY is not worthy of any credence. The learned Counsel further maintained that the complainant and both the eye-witnesses are closely related; thus, their evidence is not reliable. The learned Counsel pointed out that Mst. Siaqa widow of the deceased, his son Furqan and wives of P.Ws. 1, 2 & 3 were present in the house at the time of occurrence but their presence was suppressed by the prosecution, which creates serious doubt about the prosecution version. The learned Counsel submitted that the eye-witnesses' account is full of material contradictions and glaring defects and they have made numerous improvements at the trial; therefore, their evidence is not reliable. According to the learned Counsel, the recovery witnesses Abdul Aziz and Khalil Ahmad are also closely related to the complainant-party like eye- witnesses; therefore, their evidence is also not trustworthy. The learned Counsel strenuously contended that accused, Yasir Mahmood is brother-in-law of the deceased, therefore, he cannot be sentenced under Section 302(b), APC and in case, the charge is proved against him, he was liable to pay Diyat' only. The learned Counsel argued with vehemence that the defense has to create dents and doubt only in the prosecution story whereas it is the duty of the prosecution to prove its case beyond any doubt but the prosecution did not fulfill the duty of proving its case beyond any shadow of reasonable doubt; thus, impugned judgment may be recalled to the extent of Yasir Mahmood and he may be acquitted of the charge whereas the order of acquittal recorded by the trial Court to the extent of Manazir Hussain may be maintained. In support of his contention, the learned Counsel cited the following authorities:--
1. PLD 1963 (WP) Karachi 805.
2. 2001 SCM R 232.
3. 2002 M LD 808.
4. PLJ 2003 Cri. Cases Quetta 1570 (DB)
5. 2004 SD 58 SH.0 of AJ&K.
6. 2007 SCM R 1825.
8. PLJ 2 0 07 SH.0 AJ&K 98.
9. 2007 SCR 100.
10. Kitab-ul-Ikhtiar 195.
Controverting the arguments raised by the learned Counsel for the accused-persons, Raja Inamullah Khan, Advocate, the learned Counsel for the complainant, submitted that the prosecution has proved its case against both the accused-persons beyond any shadow of reasonable doubt but the trial Court failed to appraise the prosecution evidence, to the extent of Manazir Hussain, accused. According to the learned Counsel, although no overt act could be attributed to Manazir Hussain in the F.I.R but on the same day the complainant in his statement recorded under Section 161, Cr.P.0 clearly deposed that Manazir Hussain ordered his son Yasir Mahmood to do away with the lives of deceased and complainant party. Similarly, Anser Mahmood complainant, Muhammad Asghar (P.W.2) and Muhammad Akram (P.W.3) have categorically stated before the trial Court about the abovementioned attribution; therefore, Manazir Hussain is fully involved in the offence of abetment who instigated the principal accused to commit murder of the deceased and to inflict fire-arm injuries upon P.Ws. The learned Counsel zealously contended that the F.I.R was lodged within fourty minutes of occurrence and the accused were nominated therein and a specific role was attributed to Yasir Mahmood accused. As the occurrence took place in the house of complainant-party; therefore, brothers and father of the deceased are natural witnesses of fateful occurrence, argued by the learned Counsel. According to the learned Counsel, the prosecution has produced three eye-witnesses amongst them two are injured and according to medical examination reports, the deceased sustained fire-arm injury whereas both the P.Ws.
Anser Mahmood and Muhammad Asghar also sustained fire-arm injuries. The learned Counsel pointed out that the weapon of offence, .32-bore revolver, was recovered at the pointation of Yasir Mahmood accused and at the time of recovery three empties were taken into possession, which according to the Arms Expert are found to be fired by .32-bore revolver recovered at the instance of accused whereas a lead crime bullet was extracted from the body of the deceased and other is still present in the body of Muhammad Asghar (P.W.2), which could not be extracted there from.
The learned Counsel also submitted that .32-bore revolver, the weapon of offence, is owned by Manazir Hussain father of the accused, which was also taken into possession. The learned Counsel agitated that the relationship of the eye-witnesses with the deceased or the complainant is not sufficient to discard their evidence because according to the facts and circumstances of the case, the P.Ws. are natural witnesses; therefore, their evidence is reliable and confidence inspiring. The learned Counsel pressed into service the submission that besides ocular account, the prosecution story is corroborated by medical evidence, by the evidence of recoveries and by the reports of experts. According to the learned Counsel, the motive as alleged by the prosecution has also been proved. The learned Counsel laid great stress upon the point that Mst. Irshad Begum is an old lady and mother of the deceased, who could not be produced by the prosecution because of her ailment and old age, whereas Abdul Rasheed (P.W.5) was won over by the defense; therefore, could not be produced; however, according to the learned Counsel, it is prerogative of prosecution to produce as many witnesses as it considers necessary to prove its version. The learned Counsel finally submitted that the prosecution has discharged its duty to prove its case beyond any reasonable shadow of doubt; therefore, the impugned judgment may be maintained to the extent of Yasir Mahmood convict-appellant and accused Manazir Hussain may also be sentenced in accordance with law. The learned Counsel referred to me the following case law in support of his arguments:--
1. PLD 1986 Quetta 26 .
2. 2000 SCR 123.
3. 2001 SCR 240.
4. 2007 SCR 1.
Fayyaz Ahmad Nawabi, the learned Assistant Advocate General appearing on behalf of the State, fully owned and supported the arguments raised by the learned Counsel for the complainant.
I have very carefully taken into consideration the respective contentions of the learned Counsel for the parties after perusing the record made available. The prosecution case rests upon ocular version furnished by Anser Mahrnood complainant (P.W.1), Muhammad Asghar (P.W.2) and Muhammad Akram (P.W.3) alongwith medical evidence and recoveries made at the pointation of accused-persons and other supportive evidence.
Let me first deal with statement of eye-witnesses. Anser Mahmood complainant (P.W.1) deposed that on 20.9.2006 on the day of occurrence he was present in his house alongwith his parents Muhammad Akram, Mst: Irshad Begum and his brothers Muhammad Asghar and Muhammad Irfan, deceased at about 11:00 p.m. when Yasir Mahmood brother-in-law of Muhammad Irfan deceased alongwith his father Manazir Hussain entered into the house. Manazir Hussain entered into the veranda and asked to take his daughter Mst. Siaqa Parveen with him whereas Yasir Mahmood accused was standing in the main gate. Irfan deceased told him that it is night time therefore, he should take away his daughter in the morning. Thereupon Yasir Mahmood, who was armed with pistol, entered into veranda and started firing with the intention to commit murder. His first fire landed upon his left chest whereas he fired second shot upon Muhammad Asghar which hit him on right side of his neck. The accused fire third shot upon Irfan which hit him upon his chest, who got severely injured and taken to Mirpur hospital but succumbed to the injuries. The occurrence was witnessed by him alongwith Muhammad Asghar, Muhammad Akram and Mst.
Irshad Begum. The complainant further stated that the accused-persons have committed the occurrence in a preplanned manner on account of family dispute. The complainant further deposed that he alongwith Muhammad Asghar went to police station and lodged FIR Exh.PA.
Thereafter I.O. prepared their injury forms and sent them for medical examination to Mirpur hospital.
The aforesaid statement of Anser Mahmood was fully supported by the evidence of Muhammad Asghar (P.W.2) and Muhammad Akram (P.W.3).
Muhammad Asghar (P.W.2) testified that on the night of 20th September 2006 he alongwith his brothers Muhammad Irfan and Anser Mahmood, his father Muhammad Akram and mother Mst.
Irshad Begum was present in his house when at about 11:00 p.m. Yasir Mahmood brother-in-law of Muhammad Irfan deceased and Manazir father-in-law of the deceased came there. Manazir Hussain accused entered in the veranda whereas Yasir Mahrnood kept standing in the gate.
Manazir Hussain asked them that he wants to take away his daughter Mst. Siaqa Parveen with him whereas Muhammad Irfan deceased told him that this is nighttime and he can take her in the morning. Thereupon Yasir Mahmood entered inside, who was armed with a pistol. As soon as Yasir Mahmood entered, Manazir Hussain asked him to fire shot. Thereupon Yasir Mahmood started firing. The first fire hit Anser Mahmood upon his left chest. The second fire hit him, the witness, upon right side of his neck whereas the third fire hit Muhammad Irfan upon his chest and he sustained severe injury who was taken to Mirpur Hospital but succumbed to the injuries. According to the P.W, the occurrence was witnessed by him, his brother Anser Mahmood, his father Muhammad Akram and mother Mst. Irshad Begum. The accused committed the occurrence in a preplanned manner on account of family dispute. Muhammad Asghar further stated that he alongwith brother went to the police station where his brother Anser Mahmood lodged report. The police officer prepared the injury forms and they were medically examined and later on referred to Mirpur Hospital.
Muhammad Akram (P.W.3) deposed that on 20.9.2006 he, his sons Anser Mahmood, Muhammad Irfan and Muhammad Asghar alongwith the wife of Muhammad Irfan, his son aged six months and Mst. Irshad Begum were present in his house. He alongwith his son Anser Mahmood and Muhammad Asghar was sitting in the drying room whereas other persons were present in the room when Yasir Mahmood and Manazir Hussain entered from the main gate. Manazir Hussain asked him to take away his daughter Mst. Siaqa Parveen w/o Muhammad Irfan deceased but Muhammad Irfan told him that it is 11:00 p.m. you may take her away in the morning. Thereupon Manazir Hussain and Yasir entered inside the house. Yasir was armed with pistol. Manazir asked him to fire shot. Yasir fired first shot which hit Anser Mahmood upon his left side of rib. The second fire hit Muhammad Asghar upon his neck whereas the third fire hit Muhammad Irfan upon his chest. All three of them sustained injuries. Thereafter Irfan was taken to Mirpur hospital in ambulance where he succumbed to the injuries. According to the P.W, the occurrence was committed on account of family dispute, which was witnessed by him (the P.W), Anser Mahmood, Muhammad Asghar Mahmood and Mst. Irshad Begum.
A careful perusal of above narrated ocular version reveals that Muhammad Irfan deceased, after sustaining fire-arm injury fell down and later on succumbed to the injuries, was done to death by the firing of Yasir Mahmood accused. The learned Counsel for the defense has pointed out some minor infirmities appearing in the statements of eyewitnesses but these discrepancies are natural and speak of the truthful version of the witnesses. The P.Ws. are mentioned in the F.I.R which was promptly recorded. The minute scrutiny of the abovementioned ocular version is clear, coherent, reliable and confidence inspiring; therefore, the minor discrepancies do not make the prosecution case doubtful. The contention of the learned Counsel for the defence is devoid of any force that the P.Ws. have made numerous improvements; therefore, the prosecution evidence is not worthy of any credence. (Firstly), the P.Ws. have not made any material improvement, which could make the prosecution version doubtful. (Secondly), the deposition of P.Ws. about raising Lalkara by Manazir Hussain co-accused is not a dishonest improvement because on that very day the complainant Ansar Mahmood and Muhammad Asghar (P.W.2) and on the next day of occurrence Muhammad Akram (P.W.3) categorically deposed about raising Lalkara by Manazir Hussain, accused and asking the principal accused to do away with the lives of deceased and P.Ws. In this regard, the case law cited by the learned defence Counsel does not render any help to him because of distinguishable facts. For instance, Dhani Baksh & 2 others case (2007 PCr.LJ 1859) deals with a bail matter, whereby the bail was granted to the accused because the State Counsel had conceded that it was a case of improvement in the statement of the complainant during investigation coupled with delay in lodging F.I.R and presence of previous enmity between the parties. Similarly, in Farhan Ahmad's case (2007 SCM R 1825), the Apex Court observed the improvement as deliberate and dishonest because Farhan Ahmad (P.W.2) stated that all the accused-persons fired at the deceased but the deceased sustained one injury only in the light of medical evidence. In the case under report the F.I.R was lodged after delay of 17 hours without any explanation and dying declaration was in conflict with the medical evidence; therefore, the order of acquittal passed by High Court was upheld and leave to appeal was declined but in the instant case the eye-witnesses have not made such deliberate or dishonest improvements affecting the foundation of the case and the contention of the learned Counsel remains to the extent that the complainant did not attribute to Manazir Hussain raising a lalkara in F.I.R and later on an addition in his statement under Section 161, Cr.P.C. and likewise in the deposition of other eye-witnesses is a dishonest improvement. It is an enriched principle of criminal jurisprudence that a Criminal Court has to sift the grains of truth from the chaff of falsehood; therefore, the statement of the eye-witnesses was rightly rejected to the extent of Manazir Hussain and relied upon to the extent of Yasir Mahmood by the trial Court. My aforesaid view finds support from the following authorities:--
1. Zahir Hussain Shah's case (2000 SCR 123).
2. Abdul Rasheed's case (2001 SCR 240) &
3. Muhammad Khurshid Khan's case (2007 SCR 1).
It transpires from the perusal of above-mentioned authorities that in a criminal case, the Court is empowered to reject the testimony of P.Ws. to the extent of an accused and to rely upon the same testimony to the extent of other accused.
I also do not find any substance in this argument of the learned Counsel for the defense that the blood collected by I.O. is not present on the cotton produced by the prosecution. In this regard reference may be made to the statement of Allah Ditta (P.W.6) whereby Allah Ditta, after examining the blood deposed before the trial Court that cotton is stained with blood whereas the trial Court also observed that the cotton is stained with some blackish material. Even otherwise, the style of cross-examination and suggestions put to the P.Ws. show that the defence has admitted the place of occurrence. According to the defence, the occurrence took place one day prior to fateful day of murder and furthermore the occurrence took place while the family members of the deceased were sleeping.
It will not be out of place to mention here that as stated earlier, the eye-witnesses have categorically fixed the place of occurrence, the veranda of the deceased; therefore, even if it assumed that blood was not collected from the spot, will not adversely affect the prosecution case.
My aforementioned view is fortified by the following authorities:--
1. Dr. Munir Ahmad's case (PLD 1986 Quetta 26).
2. Falak Sher's case PLJ 2003 Cri. Cases (Lahore) 301 (DB).
The learned Counsel also laid great stress upon the point that Mst. Irshad Begum (P.W.4) and Abdul Rasheed (P.W.5) were cited in the calendar of challan but withheld by the prosecution; therefore, it makes the case of prosecution suspicious and doubtful. Furthermore, Mst. Siaqa, the wife of deceased, and his son Farhan according to the prosecution were present at the time of occurrence, were also not produced before the trial Court. Suffice to note that the prosecution has produced sufficient ocular evidence. The complainant Ansar Mahmood and Muhammad Asghar, both the eye-witnesses, are injured whereas Muhammad Akram (P.W.3) is also an eye-witness. It has been argued by the learned Counsel for the complainant that due to ailment and old age, Mst.
Irshad Begum (P.W.4), was not produced by the prosecution; however, Abdul Rasheed (P.W.5) was won over by the accused; therefore, he was abandoned, whereas Mst. Siaqa did not witness the occurrence , and Farhan is five years old, a minor son of the deceased; therefore, they were not produced as P.Ws. In this regard, Qadir Baksh's case (PLJ 2003 Cri. Cases Quetta 157 (DB) cited by the learned Counsel for the accused-persons) is beyond the controversial issue and have nothing common with the facts of the instant case because in the case under report two ladies witnesses were not mentioned in Fard-e-Bayan; however, they were introduced as witnesses after victim succumbed to the injuries but the complainant could not give any specific explanation as to why names of both ladies were not mentioned in his statement. Furthermore, the person who took the deceased to hospital was not produced in evidence who was an important witness.
It is a celebrated principle of criminal jurisprudence that it is prerogative of prosecution to produce such witnesses to whom it deems necessary to prove its case and the prosecution is not duty bound to produce each and every witness cited in the calendar of challan. In this regard, reference can be made to a case titled Abdul Aziz V. Muhammad Lal & two others (2000 SCR 375), whereby the following principle was enunciated:-- "After hearing the respective contentions of the learned Counsel for the parties and perusing the record, it may be stated at the very outset that it is not the duty of the prosecution to produce each and every witness cited in the calendar of challan. It depends on the will of the prosecution to produce such witnesses whom it deems necessary for proving the guilt of the accused. However, if the evidence of any of the witnesses is so material that in absence of it no just decision could be pronounced by the Court, the Court is competent to summon such witness and record his statement. Therefore, the argument advanced by the learned Counsel for the complainant- appellant that for proving the prosecution case the evidence of P.Ws.5 and 9 was not material is not without substance. The prosecution was not bound to produce each and every witness cited in the calendar of challan. If the evidence of P.Ws.5 and 9 was at all material that would damage prosecution case and not the defence. In this view of the matter, we agree with the contention of the learned Counsel for the appellant that in the circumstances of the case when the other recovery witnesses on the same point were examined by the prosecution, the evidence of P.W. 9 which relates to certain recovery memos was not essential. Similarly, as stated by the learned Counsel for the complainant-appellant that if the motive as alleged by the prosecution stands established from other material brought on record, the evidence of P.W.5 was also not material.
Thus the ground made basis for remand of case, in our view, does not sound good and the same is therefore rejected." In the present case not only sufficient ocular evidence has been produced by the prosecution but Rehm Dad (P.W. 13) driver of the ambulance who took Muhammad Irfan deceased to the hospital, was also produced before the trial Court, who fully supported the version of the prosecution.
Similarly, the recoveries of incriminating material would not be deemed unproved by giving up Abdul Rasheed (P.W.5) witness for the certain recoveries because aforesaid recoveries have been fully corroborated by the evidence of Allah Ditta (P.W.6), Zulfiqar Ali ASI police (P.W.14) and Nadeem Arif Inspector Police (P.W.16); therefore, the evidence of Abdul Rasheed (P.W.5) was not essential for just decision of the case. However, the defence also did not produce him in support of its version.
The law now stands settled that police witnesses are as good witnesses as any other witness especially when no suggestion was made by the defence that such police officials are partial or inimical to the accused-persons. The above stated principle underlines the judgments reported as Khalid & another V. The State (PLJ 1983 SC (AJK) 98) and Muhammad Asif V. The State (2002 SCR 108). The prosecution story is supported by eye-witnesses amongst two are injured witnesses. The deceased was done to death by a fire-arm. It has also been fully established on the record that both the eyewitnesses sustained injuries of the fire-arm. Although the eye-witnesses are members of one family and they are closely related to the deceased but according to the facts and peculiar circumstances of the case, they are natural witnesses because the occurrence took place in the house of deceased and on mere ground of relationship their evidence cannot be discarded. Similarly, the relationship of witnesses of recovery memo is not a ground to reject their testimony and strict compliance of Section 103, Cr.P.O is not necessary when the recovery is made by police official. A reference may be made to the following authorities:--
1. Abdul Rasheed & 3 others V. Abdul Ghaffar & 5 others (2001 SCR 240).
2. 2007 SCR 1.
3. It is now settled position of law that mere relationship is not sufficient to brush aside the evidence of a relative witness until and unless he is found animus to the accused but in the instant case, the accused-persons are also closely related to the deceased. Yasir Mahmood is brother-in-law and Manazir Hussain is father-in-law of Muhammad Irfan, deceased. In this view of the matter; it is not possible that P.Ws. had any such enmity or rancor as to falsely implicate the accused and it is humanly impossible to involve some innocent person instead of real culprit without any reason. In this manner, the ocular evidence is by itself sufficient to bring guilt home to accused Yasir Mahmood. However, the ocular account is also fully supported by sufficient corroboratory and confirmatory evidence.
It will not be out of place to mention here that conviction under law can be based without any corroboration, if the Court is satisfied that the testimony of a witness is probable, natural, confidence inspiring and worthy of credence. (PLD 1978 SC (AJ&K) 146). However, the Courts always look for the corroboration as a rule of caution and in order to exclude the possibility of involvement of an innocent person. The corroboration can be offered by anything in the circumstances of a case which should satisfy the conscious of the Court that the evidence is reliable and trustworthy.
(2000 SCR 123).
Coming to the instant case, Dr. Shakeel Asif (P.W.9) testified the postmortem report Exh.PN, who found fire-arm injury exactly on the same part of the body of the deceased whereat the eye- witnesses stated. According to him, the bullet injury is cause of death of the deceased and probable time, which elapsed between injury and death, is hour. The distance of firing is less than one feet.
The recovery of lead bullet P-7 extracted from the body of the deceased during the postmortem, the lead bullet P-17 recovered from the place of occurrence, the weapon of offence (32-bore revolver) P-19, three empties P-20 to P-22 recovered at the pointation of Yasir Mahmood convict- appellant, the blood-stained clothing of the deceased, the trousers P-2, shirt P-3, vest P-4 & string P-5, the trousers P-9 and shirt P-10 of Muhammad Asghar injured P.W., the trousers P-12 and shirt P- 13' of Anser Mahmood injured P.W. and recovery of bloodstained cotton from the place of occurrence P-15 provide sufficient supportive evidence. The report of Chemical Examiner Exh.PYY is also on the record which shows that the cotton of Muhammad Irfan deceased alongwith his clothes, the clothes of Muhammad Asghar injured P.W. and the clothes of Anser Mahmood injured complainant are stained with blood. The report of Forensic Science Laboratory Exh.PWW shows that the crime empties had been found to be fired by .32-bore revolver recovered at the instance of Yasir Mahmood accused-appellant. The aforementioned circumstances are also in nature of corroboratory and confirmatory evidence.
I cannot subscribe to the view of the learned Counsel for the defense that the production of report of chemical examiner Exh.PYY instead of Exh.PZZ, is fatal to the prosecution case, similarly, recovery of four empties instead of three makes the prosecution case doubtful because it has been clearly mentioned in letters Exh.PZZ/I and Exh.PYY/I that report Exh.PZZ was issued because of typographical mistake and report Exh.PWW itself shows that one test empty was sent in the parcel of the weapon; therefore, four empties were recovered from the parcel instead of three.
It is necessary to mention that an objection about postmortem, inquest report and injury sheets prepared by the prosecution are also not fatal to the prosecution story because these are material when the cause of death is doubtful whereas in the present case the cause of death has been admitted by the defence in light of suggestions put to the P.Ws. As the incident took place at midnight of 20th & 21st September 2006; therefore, an inadvertence about mentioning of date is hardly material. As far as an objection about preparation of injury form of Muhammad Irfan, deceased is concerned, is also not tenable because it is clearly mentioned in the injury form of deceased Exh.PL that it was prepared after the death of deceased on 21.9.2006.
Let me deal with another objection of learned Counsel for the defence that Yasir Mahmood, accused-appellant, is not liable to Qisas being brother-in-law of the deceased rather if any offence is proved against him then he shall be liable to Diyat' under Section 308, APC. The contention of the learned Counsel is, therefore, repelled being misconceived and without substance because Wali of the victim is widow and son of the deceased and not his brother-in- law.
The learned Counsel also criticized the evidence of site-plan Exh.PR but it is settled position of law that site-plan by itself is not substantial piece of evidence and it could only be referred for determination of the position of the deceased and the prosecution witnesses. In this regard, the learned Counsel has stressed upon the statement of Patwari but at the same time it may be mentioned here that a causal assertion by a witness or inability or incompetence of a witness while deposing before the Court, cannot destroy over all affect of the case, which is fully established by the ocular version.
It transpires from the record that defence never raised a clear-cut counter version. The version of the defence emerged from suggestions made by the eye-witnesses during the cross-examination.
It was suggested to the eye-witnesses that deceased was murdered a day before the occurrence while all family members were sleeping. On the other hand, the prosecution took a specific version from the day one that the deceased was done to death by Yasir Mahmood, accused by firing a shot upon him with .32-bore pistol on account of family dispute. When both the versions are taken into juxtaposition and appreciated into their true perspective, the version setup by the defence seems to improbable and vague.
It needs to be emphasized that eye-witnesses were found `Adil' in purgation. The ocular version of the prosecution is cogent, clear, consistent and truthful, which could not be shattered despite of lengthy cross-examination of the defence and it lends more strength by strong corroboratory and confirmatory evidence. The motive alleged by the prosecution has been established that due to family dispute, the deceased was done to death. In such state of affairs, it has been abundantly proved on record that the occurrence took place in the manner as alleged by the prosecution and not as suggested by the defence. On this account, the prosecution has brought guilt home to accused Yasir Mahmood and in view of aforesaid position, it is not deemed expedient to interfere in the impugned judgment.
So far as the case of Manazir Hussain co-accused is concerned has been alleged to raise lalkara directing Yasir Mahmood accused to do away with the life of deceased. No overt act has been attributed to him. He was not armed with a lethal weapon. He did not actively participate in the occurrence. He has not been ascribed to inflict any injury to the deceased or P.Ws. The prosecution also failed to prove on the record that co-accused was aware of the fact that his son Yasir Mahmood was armed with a revolver; therefore, his mere presence at the spot and only a proverbal lalkara is not sufficient to implicate him with the commission of heinous offence like murder and it will be in the interest of justice to maintain the order of acquittal. The abovementioned view finds support from a case titled as Liaquat Hussain & another V. Ulfat Khan & another, Mst. Rajbi & 3 others v. Liaquat Hussain & 2 others, Khan Muhammad V. Ulfat Khan & another (2007 SCR 39).
For the reasons listed above, the eye-witnesses' account finds ample support from corroboratory and supportive evidence, as mentioned above. The prosecution has brought guilt home to accused Yasir Mahmood beyond any shadow of doubt and he has been found guilty of the offence of murder of Muhammad Irfan, deceased, as recorded by the trial Court. I do not find any mitigating circumstance for lesser punishment to the accused because death being normal sentence of murder shall meet the ends of justice. However, the trial Court has not awarded any compensation to the legal heirs of the deceased as required by Section 544-A, Cr.P.C; therefore, the judgment of trial Court stands modified to this extent and it is ordered that the convict- appellant shall also pay rupees one lac as compensation which after realization shall be paid to the heirs of the deceased, in default whereof the accused-appellant shall undergo six months rigorous imprisonment. In this manner, the reference made by District Criminal Court Mirpur is confirmed and the sentence of death awarded to Yasir Mahmood, accused-appellant, vide judgment dated 30.11.2007 is maintained. The impugned judgment to the extent of Manazir Hussain accused does not suffer from any illegality, which is also upheld.
Resultantly, Appeal No, 6/2008 filed by Yasir Mahmood, accused-appellant, and Appeal No, 14/2008 filed by Ansar Mahmood & others, complainant-party, fail. The reference is answered in the manner indicated above. The copies of judgment shall be annexed with the relevant files.