JUDGMENT JAVED IQBAL, J. - This appeal with leave of the Court has been directed against judgment dated 28.3.2002 whereby the Criminal Appeal preferred on behalf of Muhammad Ilyas, Lehrasab anci Azhar Iqbal (appellants) has been dismissed and the judgment of learned Trial Court has been kept intact.
2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect "that F.I.R. No. 64/95 was registered on 22.2.1995 in Police Station Dinga, District Gujrat under Sections 302/460/394/34, PPC. The formal F.I.R.. Exh.PO/1 was registered on the basis of statement Exh.PO of one Muhammad Ashraf son of Ghulam Muhammad, complainant who had stated that he is a resident of Mauza Chilianwala and for the last 5/6 years had been living in a Mohallah of Dinga.
The house of his brother Muhammad Arif is adjacent to his house. On the day of occurrence 22.2.1995 around 4.00 a.m. He i.e. The complainant was present in his house. He heard the sound of firing and also the cries from his brother's house and so he rushed in. That direction. He saw four persons on the upper storey-of the house and who were Muhammad Ilyas armed with a rifle .222 bore, Lehrasib armed with a gun 12-bore, Riasat Ali armed with a pistol 30- bore and Azhar armed with a carbine and they were forcibly removing the ear rings from the ears of Mst. Razia Bibi, the sister-in-law of the complainant, Mst. Bushra wife of Tariq Mehmood and Mst. Kishwar Bibi the niece of the complainant. Muhammad Arif brother of the complainant and his nephew Qasim and also the ladies present there resisted, Muhammad Arif held Riasat Ali accused in-his fold (Jhapa) while Muhammad Ilyas, Lehrasaib and Azhar fired with their respective, weapons hitting Muhammad Arif in his chest and right flank. Riasat Ali who was the companion of the accused also injured as a result of firing of his companions. Both of them fell down. As a result of the firing, Mst.
Razia Bibi and Mst. Bushra Bibi also got injured and fell down. Muhammad Arif the brother of the complainant and Riasat Ali, companion of the accused, died at the spot. The occurrence was witnessed by the complainant and also by Qasim, Mst. Razia Bibi, Mst. Bushra Bibi and Mst. Kishwar Bibi. In the meanwhile, the police party reached there and they arrested Muhammad Ilyas and Lehrasab accused ait the spot while Azhar Iqbal accused managed to escape". It is, however, to be noted that Mst. Razia Bibi also succumbed to the injuries. After completion of usual investigation the appellants were sent up for trial and on conclusion whereof they were convicted under Sections 458, 397, 324 and 302, PPC read with Section 34, PPC and sentenced as under:- "(1) All the three accused-appellants were convicted under Section 458, PPC and sentenced Jo ten years' R.I., and a fine of Rs. 20,000/- each, in default they were ordered to suffer one year's R.I.
(2) All the three accused were convicted under Section 397, PPC and were sentenced to 20 years'R.I.
Each.
(3.) All the accused-appellants were convicted under Section 302(b), PPC read with Section 34, PPC and were sentenced to death bn two counts each with a compensation of Rs. 100,000/- each to legal heirs of the deceased Mst. Razia and Arif in equal share, and in case of default, payment of compensation shall be recovered as arrears of land revenue.
(4) The accused appellant Muhammad Ilyas was convicted under Section 301, PPC and sentenced to life imprisonment.
(5) All the three appellants were convicted under Section 324, PPC and sentenced for causing injuries under Section 337-E(i)
(c) to one year's R.I. And to pay Daman amounting to Rs. 3,000/- each.
For injuries falling under Section 337-E
(i) (v) they were sentenced to two years' R.I. And Daman of Rs. 5000/-each.
Each one of the accused-appellant was Also convicted for injuries falling under the definition of 337-D for two years' R.I. And to pay Arsh 1/3rd of Diyat i.e. An amount of Rs. 60,000/- to be paid by air convicts in equal share i.e. Rs. 20,000/- each.
All the sentences awarded to the accused-appellants were ordered to run concurrently."
Being aggrieved an appeal was preferred which has been dismissed, hence this appeal.
3. Leave to appeal was granted on 24.8.2005 which is reproduced hereinbelow for ready reference:- "We have heard learned counsel for the parties at length and perused the record who have taken us through the entire evidence and the impugned judgment.
2. Learned counsel for the petitioner submits that PW-6 Ashraf has in the F.I.R. Stated that Riasat Ali, co-accused was killed due to firing of fire-arm whereas medical report arid the ocular testimony of PWs shows that deceased Riasat Ali was inflicted two stab wounds. This fact is important that there are also prima facie contradictions and inconsistencies in the evidence of the prosecution. The case of the prosecution is that Riasat Ali, co-accused was murdered by their companions is also open to exception.
3. We find that the Trial Court has not attended and addressed to the said facts. Besides the allegation of robbery with regard to gold ear rings also appears to be not worthy of credence keeping the case of the defence in juxtaposition to the prosecution case.
4. Prima facie a case for grant of leave to appeal is made out to reappraise the evidence on record in accordance with principles laid down by this Court for safe administration of criminal justice and to consider the above submissions and inconsistencies and contradictions in the prosecution evidence. Accordingly, we grant leave to appeal as said above."
4. Sardar Asmatullah Khan, learned ASC entered appearance on behalf of appellants and contended that the evidence led by the prosecution to substantiate the allegations has not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to support the said contention it is submitted that prosecution has failed miserably to prove the guilt to the hilt by producing cogent and concrete evidence and prosecution story being highly improbable and imaginary should have been discarded which was never supported by the prosecution witnesses. It is next contended that F.I.R. Was got lodged after consultation and deliberation which aspect of the matter has not been adverted to by the learned Trial and Appellate Courts. It is urged with vehemence that it was not a case of premeditation but on the contrary Riasat Ali (deceased) was invited by Mst. Kishwar Bibi in her house and wanted to accompany him but meanwhile the complainant party woke up and after exchange of hot words the unfortunate incident took place where Riasat Ali was murdered by the complainant party and Mst. Razia Bibi expired while intervening and a few prosecution witnesses also received injuries during the scuffle. It is argued that in order to protect the family honour a concocted story has been made regarding robbery and golden rings were recovered through a fake recovery which also went unnoticed by the learned Trial and Appellate Courts. It is argued with firmness that how robbery could have been committed when the appellants and complainant were residing in the same vicinity and known to each other. It is contended that Riasat Ali (deceased) was engaged with Mst. Kishwar Bibi and subsequently Muhammad Arif (deceased) failed to honour his commitment and wanted to give the hand of Mst. Kishwar Bibi to some other person which was not approved by Mst, Kishwar Bibi and on whose invitation Riasat Ali (deceased) visited the house of Muhammad Arif during the night of occurrence as Mst. Kishwar Bibi was going to elope with him which has come on record but ignored by learned Trial and appellate Courts. It is also argued that Muhammad Ashraf (PW-6) was not an eye-witness who arrived after the police had reached at the place of occurrence and accordingly his statement being vague and exaggerated should have been ignored. The learned ASC has also invited our attention to certain improvements made by Mst. Bushra Bibi (PW-7) which according to learned ASC is also in conflict with medical evidence. In order to substantiate, the. ^above- mentioned contentions the learned ASC has also invited our attention to the statement. Of Investigating Officer and according to learned ASC it was a dishonest investigation and should have been discarded. The learned ASC has emphasized much on the factum of the recovery of 30 bore pistol from Riasat Ali as the three empties found at the spot wedded with the said pistol and according to the learned ASC Riasat Ali (deceased) was responsible for the commission of murder of Muhammad Arif who apprehended Riasat Ali (deceased) at the spot and no one else can be held responsible for the incident.
5. Mr. Shaukat Siddiqui, learned ASC entered appearance on behalf of complainant and supported the judgment impugned for the reasons enumerated therein with the further submission that F.I.R.
Was got lodged with promptitude and all the necessary details furnished. It is contended that no evidence worth the name could be brought on record showing that F.I.R. Was got lodged with consultation or deliberation. It is urged with vehemence that Lehrasab and Muhammad Ilyas (appellants) v&ere arrested at the spot while Azhar Iqbal managed his escape good. It is argued that the crime weapons got recovered from Muhammad Ilyas and Lehrasab (appellants) matched with the empties got recovered from the place of occurrence. Mr. Shaukat Siddiqui, learned ASC has also referred the eye account, medical evidence, motive, recovery of weapons and apprehension of Muhammad Ilyas and Lehrasab at the spot to show that prosecution has established the guilt to the hilt. It is contended that Mst. Kishwar Bibi could have left the house and there was no justification, whatsoever to call Riasat Ali and there was no engagement between the two.
6. Mr. Muhammad Siddique Khan Baloch, learned Deputy Prosecutor General has also supported the judgment impugned and adopted the arguments as advanced by Mr. Shaukat Siddiqui, learned counsel on behalf of complainant with the further submission that prosecution has established the guilt to the hilt by producing cogent and concrete evidence which has been appreciated in accordance with law. It is also contended that ocular account has been corroborated by medical evidence, recovery and the reports of FSL. Learned Deputy Prosecution General also argued that it was a case of criminal tress pass into the house. Of Muhammad Arif (deceased) at night duly armed with sophisticated weapons with intention to commit robbery but the appellants were apprehended at the spot except Azhar Iqbal who managed his escape good and Muhammad Arif, Riasat Ali and Mst. Razia Bibi were killed. It is also argued that Riasat Ali (deceased) was killed by his companion Muhammad Ilyas who in fact wanted to inflict knife blow upon Muhammad Arif which landed at Riasat Ali (deceased). The learned Deputy Prosecutor General also contended that evidence which has come on record has been appreciated properly by the learned Trial and Appellate Courts and there is no question of misinterpretation. It is also argued that merely on the basis of improvements and contradictions the statements of prosecution witnesses cannot be discarded if corroborated by other material.
7. We have carefully examined the respective contentions as agitated on behalf of parties, perused the entire evidence by keeping the defence version in juxtaposition and perused the judgments of learned Trial and Appellate Courts with care and caution. An in-depth scrutiny of the entire record would reveal that prosecution has produced 16 witnesses to substantiate the allegation i.e. Dr. Muhammad Ali Chatha (PW-i), Dr. Munawar Hussain (PW- 2), Muhammad Akhtar (PW-3), Mehdi Khan (PW-4), Abdul Razzaq HC (PW-5), Muhammad Ashraf (PW-6), Mst. Bushra Bibi (PW-7), Mst.
Kishwar Bibi (PW-8), Muhammad Aslam (PW-9), Afzaal Mehmood (PW-10), Muhammad;Afzal, ASI (PW-11), Dr- Faruq Ahmed Bangish (PW-12), Haji Muhammad Akram (PW-13), Akhtar Naqaash, Draftsman, (PW-14), Muhammad Umar, HC (PW-15) and Faruq Hussain, Inspector (PW-16).
8. We intend to examine the eye acount first as furnished by Muhammad Ashraf (PW-6), Mst.
Bushra Bibi (PW-7) and Mst. Kishwar Bibi (PW-8) who have been mentioned as eye-witnesses. A careful analysis of the statement of Muhammad Ashraf (PW-6) would reveal that he has supported the prosecution version by mentioning all the details of unfortunate incident. He was residing adjacent to the house of his brother Muhammad Arif (deceased) and reached at the place of occurrence within a few moment and saw Lehrasab (appellant) duly armed with a gun, Muhammad Ilyas (appellant) armed with .222 rifle, Riasat Ali (deceased) armed with a pistol 30 bore and Azhar Iqbal (appellant) armed with carbine. It is stated that appellants were known to him who in his presence attempted to remove the ear rings of Mst. Razia Bibi (wife of Muhammad Arif), Mst. Kishwar Bibi and Mst. BUshra Bibi but intervened by Muhammad Arif and Qaiser (nephew of deceased). On their failure, Lehrasab, Muhammad Ilyas, Riasat Ali and Azhar Iqbal started firing.
It is also stated that Muhammad Arif caught hold of Riasat Ali when Muhammad Ilyas (appellant) attempted to inflict knife blow which hit Riasat Ali in his abdominal region whereas all the appellants fired at Muhammad Arif which hit him at his chest, right armpit and left flank. It was an indiscriminate firing as a result whereof Mst. Razia Bibi and Mst. Bushra Bibi (PW-7) also received injuries: It is further stated that Muhammad Arif and Riasat Ali died as a result of injuries instantaneously, whereas Mst. Razia Bibi and Mst. Bushra Bibi after receiving injuries remained in the room for sometime. It is also stated that after few days Mst. Razia Bibi also succumbed to the injuries.
Muhammad Ashraf (PW-6) has mentioned in a categorical manner that Mst. Bushra Bibi (PW-7) and Mst. Kishwar Bibi remained present during the occurrence and witnessed the same. It is also mentioned that police party reached the place of occurrence and apprehended Muhammad Ilyas and Lehrasab alongwith their weapons while Azhar Iqbal managed his escape good. Muhammad Ashraf (PW-6) was subjected to a lengthy cross-examination but nothing beneficial could be elicited. There are certain contradictions but they are not grave in nature and can be ignored safely as minor contradictions do creep in with passage of time. Mst. Bushra Bibi (PW-7) who is an injured witness has fully' supported the version of Muhammad Ashraf (PW-6). She has stated in a categorical manner that Lehrasab (appellant) was armed with pistol (30 bore), Azhar Iqbal with carbine and Muhammad Ilyas with 222 rifle and all of them had attempted to remove their golden ear rings by force and on their hue and cry Muhammad Arif (deceased) emerged at the scene who was sleeping in first floor alongwith Qasim (her brother-in-law) and Muhammad Ashraf (PW- 6) (maternal uncle) and intervened to save them from clutches of the appellants who started firing as a result whereof Muhammad Arif and Mst. Razid Bibi expired, while she has mentioned that Muhammad Arif (deceased/ her father-in- law) had given a blow on the head of Riasat Ali by using a cricket bat and caught hold of Riasat Ali when Muhammad Ilyas (appellant) attempted to inflict knife blow to Muhammad Arif which hit Riasat Ali in his abdomen. It is also stated that Muhammad Ilyas, Lehrasab and Azhar Iqbal (appellants) started firing which hit at chest, right armpit and flank of Muhammad Arif resultantly he succumbed to the injuries. Mst. Bushra Bibi (PW- 7) has "further stated that Mst. Razia Bibi (her mother-in-law) also succumbed to the injuries. Mst.
Bushra Bibi (PW-7) was subjected to an exhaustive cross- examination but in spite of various searching questions nothing advantageous could be elicited. Mst. Kishwar Bibi (PW-8) has supported Muhammad Ashraf (PW-6) and Mst. Bushra Bibi (PW-7) on all material particulars and stood firm to the test of cross-examination. The factum of recovery has been proved by Muhammad Aslam (PW-9), Muhammad Afzal (PW-11) who also affirmed that dead-body of Riasat Ali (deceased) was lying in courtyard in the house of Muhammad Arif (deceased). The medical evidence has been furnished by Dr. Muhammad Ali Chattha (PW-1) and Dr. Munawar Hassan (PW- 2), which is indicative of the fact that unnatural death of Muhammad Arif, Riasat Ali, Mst. Razia Bibi was not challenged. The golden rings were also got recovered from Azhar Iqbal (appellant). Faruq Hussain (PW-16) has highlighted the factual aspects and various steps taken during investigation.
The report of Chemical Examiner (Ex-PKK), report of Serologist (Ex-PLL) and report of fire-arm (Ex- PMM) were also produced in the evidence.
9. We have also kept the defence version in juxtaposition. All the appellants had denied charges emphatically. The statement of Lehrasab was got recorded under Section 342, Cr.P.C. Which is nothing but denial simpliciter. The incident was never denied but a different plea had been taken and according to Lehrasab (appellant) Mst. Kishwar was engaged with Riasat Ali but subsequently for certain reasons Muhammad Arif (deceased) failed to honour his commitment but Mst. Kishwar remained interested in Riasat Ali who used to visit their house and during night of occurrence Mst.
Kishwar had invited Riasat Ali at her house as she wanted to accompany him for ever but members of the family including Muhammad Arif woke up and inflicted knife blows upon Riasat Ali who fired to save his life as a result whereof Muhammad Arif succumbed to the injuries and Mst.
Bushra Bibi and Mst. Razia Bibi were injured, and Mst. Kishwar locked herself in a r$om of the house.
According to the appellants Muhammad Ashraf and Qasim had arrived subsequently and false and concocted case of robbery was got registered. The appellants had stated that Riasat Ali was murdered by Muhammad Arif. It is also the case of appellants that witnesses being interested and in order to save the honour of the family had distorted the factual aspects of the case. Azhar Iqbal has stated nothing in his defence except that he was falsely roped in the case being relative of Riasat Ali (deceased). Muhammad Ilyas (appellant) has adopted the statement got recorded by Lehrasab (appellant). It is worth mentioning that appellants had not recorded their statements on oath under Section 340(2), Cr.P.C. Lehrasab (appellant) produced Nikah Nama (Ex-PC) on 25.10.1996 and no defence witness could be produced. Muhammad Ilyas and Azhar Iqbal (appellants) also refused to produce defence evidence on 25.1.1996. It may not be out of place to mention here that on 23.1.1996 they had undertaken to produce defence witnesses which could not be done for the reasons best known to them.
10. We have carefully examined the entire evidence by keeping the defence version in juxtaposition with the assistance of learned counsel of the parties. There are certain admitted features of the case such as the unnatural death of Muhammad Arif, Riasat Ali and Mst. Razia Bibi which has been proved by medical evidence. The prosecution has established the factum of apprehension of Muhammad Ilyas and Lehrasab from the place of occurrence and subsequent arrest of Azhar Iqbal. The prosecution has substantiated the presence of appellants at the place of occurrence by producing cogent and concrete evidence. In this regard, the statements of Muhammad Ashraf (PW-6) Mst. Bushra Bibi (PW-7) and Mst. Kishwar Bibi (PW-6) cannot be discarded. We are conscious of the fact that there are certain contradictions but in our view the same being minor in nature can be ignored safely. The. Learned ASC on behalf of appellants has stressed much on these contradictions in oblivion of the fact that merely on the basis of contradictions, statement of a prosecution witness cannot be discarded if.
Corroborated by other incriminating material. The ocular version also finds support from medical evidence which is not in conflict with oral evidence. Even otherwise it is well-settled by now that if there is forthright and convincing eye account that will be preferred as compared to that of medical evidence. In this regard, we are fortified by the dictum laid down in Sarfraz v. The State (2000 SCM R 1758), Muhammad Hanif v. State (PLD 1993 SC 895). It may not be out of place to' mention here that medical evidence irrespective of the fact whether it is consistent with ocular version or otherwise it cannot be corroborated with ocular evidence which is tainted by enmity. It is not the medical evidence to determine the question of guilt or innocence but it is ocular version which is required to be taken into consideration at first instance. In this regard reference can be made to Machia v. State (PLD 1976 SC 695). We are not persuaded to agree with Sardar Asmatullah, learned ASC on behalf of appellants that statements of Muhammad Ashraf (PW-6), Mst. Bushra Bibi (PW-7) and Mst. Kishwar (PW-8) should have been discarded being relative of the deceased for the simple reason that "Principle of law enunciated by this Court from time to time is that merely for the reason that a witness is an interested one, his testimony will not be discarded perse for this reason but for safe administration of justice Courts are required to apply the rule of caution by seeking corroboration to the statement of a so-called interested witness on its material parts from other admissible evidence. Reference in this behalf may be made to Iqbal alias Bhalla and two others v. The State (1994 SCM R 1) and Abdul Ghafoor v. The State (2000 SCM R 919). Thus, in view of the dictum laid down by this Court from time to time discussing evidentiary value of interested witnesses in criminal cases we are persuaded to hold that unless it has not been brought on record by the defence that the involvement of accused in the case is on account of ulterior motives coupled with mala tides to ensure his conviction, evidence so furnished by such witness cannot be-discarded. In this context it is important to add that truthfulness or falsehood of a prosecution witness can be verified by making reference to other incriminating, material available on record which may be in the shape of oral testimonies of co- witnesses of the incident or recovery of crime empties if they had wedded with the crime weapons used in commission of the offence and recovery has been made in accordance with law and it also connects the accused with the commission of the offence, promptly lodging report of incident, circumstantial evidence etc. It has been time and again emphasized by this Court that for safe administration of justice the Court seized with the matter may rely upon the testimony of interested witness and to satisfy its conscious firstly close scrutiny of the prosecution evidence keeping in view the attending circumstances must be undertaken and thereafter may look for independent corroboration to the testimony of interested witness and if the prosecution fulfils these test's then it should be accepted to saddle the accused with criminal liability. However, facts vary from case to case and the Court comes across to such a situation where except the evidence of a witness who is interested in prosecution of the case either being close relative of the complainant or on account of some previous animosity between the parties is desirous that the accused must be punished adequately and there is absolutely no corroborative evidence available on record, therefore, in such a unique situation the responsibility of the Court increases to double and it may accept the evidence of solitary witness alone if it is trustworthy. As far as verification of the statement of a witness being trustworthy is concerned it depends upon appreciation of evidence by the Court with its clear and honest conscience". (Sarfraz v. The State 2000 SCM R 1758).
11. On the touchstone of the criterion as laid down and mentioned hereinabove the statements of Muhammad Ashraf (PW-6), Mst. Bushra Bibi (PW-7) and Mst. Kishwar Bibi (PW-8) have been examined and we are of the considered opinion that their statements have rightly been considered and relied upon by the learned Trial and Appellate Courts. No serious enmity whatsoever was either alleged or substantiated. It is worth mentioning that Mst. Bushra Bibi (PW-7) received injuries during the unfortunate incident and. Hence the question of friendship or enmity would not be relevant but intrinsic value of the statement of Mst. Bushra Bibi (PW-7) is to be considered by whom a specific role has been assigned to the appellants and besides that she stood firm to the test of cross- examination.
12. The upshot of the above discussion is that the prosecution has established the guilt to the hilt, however, after having gone through the entire evidence we are of the view that factual aspects have been concealed rather distorted and the complainant as well as the appellants had not come forward with true and actual background which culminated into the unfortunate incident rather they had attempted to suppress their. Own part in the occurrence. In* our view no evidence has come on record showing the engagement between Mst. Kishwar Bibi and Riasat Ali (deceased). The statement of Mst. Kishwar Bibi was recorded by the Trial Court wherein she has stated in a categorical manner that she was never engaged with. Riasat Ali (deceased). She also denied that her father Muhammad Arif (deceased) failed to honour his commitment as no engagement had taken place. She also refuted the suggestion while answering one of the questions during cross-examination that Riasat Ali (deceased) was invited by her for the purpose of elopement during the odd hours of night and they were caught red-handed by Muhammad Arif (deceased) and other relatives. Even otherwise, the story of elopement oc engagement does not appeal to logic and reason. The only inference which could be drawn on the basis of an in-depth scrutiny of evidence which has corfie on record, background and circumstances of the case is that Riasat Ali (deceased) had trespassed the house of Muhammad Arif (deceased) to abduct Mst.
Kishwar Bibi but failed to accomplish the task as it was resisted by Muhammad Arif and other family members who woke up during hue and cry by Mst. Kishwar Bibi (PW-8) and Mst. Bushra Bibi (PW-7). Had Mst. Kishwar Bibi been a consented party she could have left the house very conveniently being a mature/grown. Up girl and there was nothing to stop her. It is to be noted that in a case of this type the parties do not generally come out with the true story. It is a normal incident of an "adversary proceeding" to minimize one's own part in the incident. In such a case the Court must not be deterred by the incompleteness of the tale from drawing the inferences that properly flow from the evidence and circumstances"' (Syed Ali v. Nibaran Mollah PLD 1962 SC 502).
In our considered view the question of robbery as alleged by the complainant does not arise as the appellants could not have taken such risk in odd hours of night just for the sake of ear rings. Arrival of the appellants with deadly weapons was not meant to snatch or remove the ear rings but it was for the forceful abduction of Mst. Kishwar Bibi. It is hardly believable that while residing in the same vicinity and known to each other the appellants could have taken the risk of robbery and that too for ear rings. In view of the distortion and concealment of reality by the complainant and other circumstances as mentioned hereinabove the conviction and sentence awarded under Section 302(bX PPC to Muhammad Ilyas, Lehrasab and Azhar Iqbal is converted to that of life imprisonment. The conviction and sentence awarded to the above appellants under Section 397, PPC is set aside. All the remaining sentences as awarded by the learned Trial Court and kept intact by the High Court hardly needs any interference except as mentioned hereinabove. The appeals are disposed * of subject to above modification.