ATTAULLAH KHAN, J.---Through this single judgment we propose to decide Criminal Appeal No,69 of 2008 filed by appellant Mustafa son of Muhammad Amir against his conviction passed by learned Additional Sessions Judge-V, D. I. Khan dated 25-9-2008 vide which he has been convicted and sentenced under section 302(b), P.P.C. for life imprisonment with a fine of Rs,1,00,000. In default of payment of fine the appellant was further ordered to undergo six months' simple imprisonment.
The fine if recovered was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. However, benefit of section 382-B, Cr.P.C. was extended.
2. Complainant Amjid Kamal, brother of the deceased Nisar Ahmad has filed Criminal Revision No,19 of 2008 for enhancing the sentence of accused/appellant from life imprisonment to normal penalty of death and also for increasing the compensation amount. The above criminal appeal and revision are arising out of the same judgment/order passed by the learned trial Court, therefore are taken together for decision, through this single judgment.
3. Succinct facts according, to the F.I.R. are that on 12-1-2006 at 0845 hours complainant Amjid Kamal brought the dead body of his brother Nasir Ahmad to Emergency Room of Civil Hospital, D. I.
Khan and lodged the report to the police that he (complainant) and his brother Nisar Ahmad at 0800 hours were present in the field near the Bhaithak of Qasim. His brother Nisar Ahmad was having pet bird (Teeter) and was sitting at some distance from the complainant. Some other persons namely Shafique son of Ramzan, Ramzan son of Hatiz Ahmad and Salim son of Ramzan were also present there. In the meantime accused Mustafa, son of Muhammad Amir and Pappa son of Rabbani came there and Mustafa pulled out his, pistol and fired three shots on his brother Nisar Ahmad due to which he fell down on the ground, thereafter both the accused ran away from the spot. He further reported that when he reached near his brother Nisar Ahmad, he was seriously injured and was taken to Hospital on a Datsun with the help of co-villagers where he succumbed to his injuries. Complainant further reported that the occurrence has been witnessed by Shafique, Ramzan and Salim. The motive behind the occurrence was stated to be that Mustafa had doubted the illicit relation of deceased with his sister, therefore, accused Mustafa with the help of Pappa has committed the murder of his brother Nisar Ahmad , hence F.I.R. No,23 dated 12-1-2006 registered under section 302/34, P.P.C. at Police Station, Saddar District D. I. Khan.
4. Challan against the appellant was filed before the learned trial Court and the learned trial Court took cognizance of the case. Appellant refused to plead guilty in response to the charge framed against him: therefore prosecution was directed to record its evidence to prove guilt of the accused.
5. The prosecution examined fifteen witnesses during trial against the accused and then closed its evidence. Whereafter statement of accused was recorded under section 342, Cr.P.C.
Accused/appellant denied to have' committed any offence, however, did not produce evidence in his defence and also declined to be examined on Oath under section 340(2), Cr.P.C.
6. The learned trial Court after hearing, arguments of both sides convicted the accused appellant and sentenced him as per detail given in first Para of this judgment.
7. Learned counsel for the accused/appellant argued that:- (a)The prosecution evidence is interested because they are related to the deceased and contain material contradictions.
(b)The medical evidence has not corroborated the ocular version rather it contradicts the stand of prosecution in respect of number of tire arm injuries.
(c)The case become doubtful on the ground that according to the F.I.R., the injured was shifted to the Hospital by complainant while according to the doctor, the injured was brought by local police.
(d)Regarding F.I.R. it is submitted that it was recorded by local police and not by police present in Emergency Ward.
(e)F.I.R. discloses that one accused effected tiring while in evidence two accused have been charged for firing.
(t) It is also contended that P.W.13 Abdus Sattar, who is father of the deceased has admitted before the trial Court that the deceased was done to death by a person from Budhani.
(g) The last submission is that the FSL report has no value because the items were sent to the Jahoratory about two months after the recovery.
8. On the other hand, learned State counsel assisted by learned counsel for complainant, strongly rebutted the arguments advanced by learned counsel for the accused/appellant. They argued that the case has been fully proved through ocular evidence which has been corroborated by independent source. They further stated that three fire shots were attributed to the accused and correspondingly three empties have been recovered from the spot. They lastly submitted that - contradictions, if any, are minor in nature, which are bound to occur after- the lapse of sufficient time.
9. We have considered the arguments from both sides, in the light of evidence of prosecution and plea of defence with care and caution, which lead us to the following conclusion.
10. We would first discuss the ocular evidence which consists of, three witnesses namely Amjid Kamal P.W.10, who is also lodger of F.I.R., Muhammad Ramzan P.W.11 and Muhammad Shafique P.W.12. Out of these three witnesses, two witnesses namely Amjid Kamal P.W.10 and Muhammad Shafique P.W.12 are closely related to the accused while the 3rd witness Muhammad Ramzan P.W.11 is not related to the deceased as well as accused/appellant. In this way one of them is independent witness. It is settled principle that mere relation of a witness with the victim is not a disqualification. If his statement is trustworthy, confidence-inspiring and true it may be considered. As a matter of abundant precaution the statement of such witness should also be corroborated. It is held in case reported in 2007 SCM R 518, that relationship is not sufficient to discard the statement of interested witness.
"Both the courts below after proper appreciation of evidence had given finding of fact that the aforesaid piece of evidence duly corroborated the confession made by the petitioner and his co- accused. It is also a settled law that mere relationship is not sufficient to discard the statement of the interested witnesses as laid down by this Court is Roshin's case. PLD 1977 SC 557. The prosecution witnesses had faced lengthy cross-examination but the defence had failed to shake their veracity."
In some cases capital punishment may be awarded even on the basis of circumstantial evidence if sufficient to connect the accused beyond any reasonable doubts.
11.: From the case-law it follows that in case where eye-witness charging a person with commission of offence, the Court is required to firstly determine whether he saw the occurrence, was in position to identify the accused, secondly can he be believed for the conviction of accused without corroboration. If it is found by the court that the charge of the witness is reasonable from the available circumstance then in the absence of corroboration of witnesses it may be believed. Thus the corroboration of an interested witness in the above circumstances is not necessary always through some independent source. Reference may be given 1999 SCM R 1418. It is also held in the above mentioned case-law that mere relation of the witness with the deceased is no ground for discarding his evidence. It is held that; "An interested witness in a criminal case is one, who has motive to involve the accused falsely in the case. Therefore, mere friendly relation or relationship of the witness with the deceased or complainant party is no ground to discard his evidence describing him as an interested witness (See Iqbal alias Bhala v. State 1994 SCM R 1."
12. The same principle is adopted in case reported in PLD 2007 Supreme Court (AJ&K) 102, that conviction can be recorded on the basis of ocular testimony of natural and reliable witness without seeking any corroboration but the said testimony is required to be scrutinized with great care and caution. In some cases it is also held that relationship of a witness with the deceased is not. alone sufficient to discard his testimony. The principle laid down in the above referred case is reproduced below; "It is well-settled principle of appreciation of evidence that mere fact of witnesses being related inter se to deceased is not sufficient to discard their testimony outrightly if such witnesses otherwise found to be witnesses of truth. The witnesses found to be interested and inimical in sense of having a motive to falsely implicate innocent person from other party be scrutinized very carefully and cautiously by the Court in order to eliminate the chances of false implication. This view finds support from a case reported as Mehtab Khan v. The State PLD 1979 SC (AJ&K) 23 which reads as under:- "After studying these authorities and considering the arguments, we have come to the conclusion that:
(a) The mere fact that the witnesses are related inter se or related to the deceased is not sufficient to discredit outright their testimony if otherwise such witnesses are found to be witnesses of truth.
(b)But where the witnesses are found to have been interested and inimical in the sense that they have a motive to implicate falsely innocent persons from other party, the Court should be on guard and cautiously look for some supporting circumstance with a view to eliminating the chances of false implication especially in cases where there is a background of blood-feuds between the parties or a chain reaction of retaliatory murders."
13.Now we would see as to whether defence is succeeded to point out any material in the evidence of witnesses to be termed as material contradiction or any to prove that they falsely implicated the accused/appellant or substituted them. We have gone through the entire evidence of the three P.Ws. but have come across nothing as contradictory. They are natural witnesses. The deceased and his brother Amajid Kamal P.W.10, were present on the spot and Muhammad Shafique P.W.12 was also present in the nearby field. Their presence was quite natural.
14.The time of occurrence is mentioned 0800 hours while the report was lodged at 0845 hours.
There is only 45 minutes delay which is explained by the fact that after the fire shot of the accused, the deceased was injured and was shifted to the Hospital for treatment. This delay is because of arrangement for shifting the injured to the Hospital but he died during treatment. The first thing to be noted here is that F.I.R. was lodged with reasonable promptitude and secondly there was no time used by complainant for deliberation and consultation in order to falsely rope in the accused/appellant. Moreover, there is nothing on record to show that these witnesses have substituted the real culprits. One of the witnesses is not related to the deceased. At the time of occurrence he was present in his shop where he noticed two persons sitting in front of the shop and he also noticed that deceased was coming having pet bird (teeter) in his hand. In the meantime two persons stood up and opened firing. He has also stated that the person who was targeted by two persons (accused) was not visible to him but somebody told him that the deceased Nisar was fired by the accused. He also recognized the accused as Mustafa. This witness also informed the police who reached on the spot. He also confirmed the presence of P.W.
Muhammad Shafique with him.
15.If we consider the statement of this witness, firstly we would find that this witness is independent and having no relationship with an of the party. He has given a very straightforward statement which fully connects the accused/appellant with the commission of offence. If we believe that the remaining two witnesses are related even then their statements become trustworthy as their version have been corroborated by P.W.11 Muhammad Ramzan. We have come across no ambiguity in their statements. In spite of long cross-examination the defence has failed to shatter their evidence.
16.Coming to the medical evidence we may refer to the statement of Dr. Muhammad Zahidullah M.O. DHQ, Hospital, I/ I. Khan recorded as P.W.1. According to his statement one injury is available on the body of the deceased which corroborates the statement of prosecution witnesses to the effect that the deceased was hit by one of the fire of the accused. The medical evidence thus corroborates the ocular version.
17.An effort has been made on behalf of defence to create doubts about the charge against the accused. According to the report of Mustafa, accused has fired with his pistol three shots with which the deceased was hit and subsequently died. The stand of defence is that P.W.12 stated in his statement that two accused had made effective firing. According to defence this creates doubts as to with which fire shot the deceased was hit. If we look to Murasila Exh.P.W.3/1 it discloses that only Mustafa has been charged for three shots. Here again: the defence has tried to make the case doubtful because according to them, there should have been three injuries because effective firing has been attributed to two accused and not one. But this effort has been failed by defence itself by cross-examining one of the witnesses. According to defence it is contradictory with the version of eye-witness as well medical evidence. We have looked all aspects of the' case. Complainant has not charged two persons, the F.I.R. is clear in this regard. He attributed the fire shot to Mustafa accused/appellant and not to the other accused. Similar is the statement of other P.Ws. , so accused is charged for effecting three fires. Moreover, he has not stated that three tires were proved effective which could cause three injuries. This situation has been suggested by defence itself. A question was put in cross-examination to Amjid Kamal P.W.10. In his reply he has stated that he cannot say as to which fire proved fatal. The relevant portion of his statement is reproduced as below; "I cannot say any whether my brother deceased was hit by first fire shot, second or the third".
' This reply given by witness, in cross is sufficient to clear the situation in respect of effective tire shots. The defence itself negated their stand. It is proved that only one fire proved effective which caused one injury which is in consonance with medical report suggesting one injury.
18.Coming to the recording of report, it was objected by learned counsel for accused/appellant that the report was scribed by local police and not by police staff deployed in Emergency Ward in Hospital. The Murasila is Exh.P.W.3/1. To this effect P.W.3 Syed Iqbal Hussain Shah ASHO appeared in the trial Court and stated that on receiving information he rushed to the Hospital, where complainant reported th, occurrence and he drafted Murasila on his report. It is true to this effect the Mut-hila was drafted by local police and not by those deployed in the Emergency Ward of Hospital. We have considered this point but unable to treat it illegality because it is not required under any law or rule that the report of incident regarding the victim in Hospital should be recorded by Police of Emergency Ward of Hospital and not by local police. The presence of P.W.3, who is ASHO of concerned police station is natural in the Hospital because after receiving information about the occurrence he went to the Hospital and recorded the Murasila. It was his duty because the occurrence had taken place in the jurisdiction of his police station. In our mind the recording of Murasila by local police has no adveise effect upon prosecution case.
19.One of the objections of defence is that the deceased then injured was shifted by complainant to Hospital while according to doctor he was brought by local police. It is mentioned in the F.I.R. that the injured was shifted by complainant with the help of his co-villagers to the Hospital. It is also mentioned by the doctor while appearing as P.W.1 that the injured was brought to the Emergency Ward by local police of Police Station, Saddar D. I. Khan. It is not a noval thing because the local police had reached to the Hospital after receiving information about the occurrence. So their presence in the Hospital with the deceased is natural and again it would not affect the case of the prosecution and is of no avail to the accused/appellant.
20.Now coming to the statement of P.W.13, who is the father of the deceased, the objection of defence is that he has not charged the accused by name. According to Abdus Sattar P.W.13, he charged one Ameer for bringing man from Budhani and killed his son through that person: The first point is to be considered in this regard is that P.W.13 is not an eye-witness. He is witness of the motive. If we considered the statement of this witness regarding calling a man from Budhani by Anieer who killed his son, even then we find that it is neither fatal nor contradictory because one of the co-accused namely Peppa is the resident of Budhani. So this is again a circumstance which goes against the accused/appellant and it also corroborates the ocular version.
21.The next point is regarding the FSL, report Which is objected on behalf of the accused/appellant to the effect that the items were sent for examination on 24-4-2006 while the occurrence took place on 12-1-2006 with the delay of more three months. According to the defence this report cannot be considered. Through this report the Expert has opined that empties were fired from .30 bore pistol. This pistol was recovered on the pointation of accused/appellant. This is positive evidence. against the accused/appellant but due to the objection of the accused/appellant if we rule it out of consideration even then the prosecution case would not effect because of ,other pieces of evidence which includes of ocular as well as medical and recovery of empties are available. In the presence of ocular evidence the FSL report loses its value.
Moreover, it is not a negative report to favour the accused/appellant but a" positive piece of evidence against him, so this objection is also of no avail..
22.In this case motive is also relevant. The motive set up in the F.I.R. is that the 'deceased was suspected illicit relation with the sister of the accused/appellant. P.W.13 has- appeared in the trial Court and supported the motive. According to him this matter was settled amicably between the parties through the efforts of local Nazim and in' that connection fine of Rs,1,00,000 was also imposed which was paid. In cross examination, the defence has totally failed to cross-examine the witness regarding the motive. So the motive is also proved. Moreover, it was never challenged by the accused/appellant in their defence. 'We may rely on 2005 PCr.L.J 667 wherein it is held that:- "As far as motive is concerned, that was never challenged by the prosecution which stands proved. Not even a single suggestion was put to the eye-witness regarding false implication of the appellants in the present case. Even in their statements recorded under section 342, Cr.P.C. nothing has been said which could appeal to the mind of a man of normal prudence." ' and we also rely upon 2005 PCr.LJ 667.
23.The above discussion, evidence and record on file shows that the report in this case was lodged with reasonable promptitude for the reasons mentioned above, no time has been spent by complainant party for deliberation and consultation for false implication of the accused. It is a daylight occurrence and there is no chance of mistaken identity because the accused/appellant was already known to the complainant party, eye-witnesses including the complainant are unanimous with each other on material particulars. Motive has also been confirmed. The ocular account furnished by eye-witnesses is accurate and credit-worthy. The discrepancies, if any, in ocular testimony are to be ignored because these are minor as sufficient time has been lapsed in recording evidence and some minor defects in evidence may arise. Medical evidence has fully supported the prosecution case in respect of locale of injuries and weapon used. The pistol was attributed to the accused/appellant which has been fully proved from the recovery of three empties of pistol. The complainant party had no apparent reason to let off the real culprit in order to falsely implicate the accused/appellant in the crime.
24.The result of our above discussion is that the conviction awarded by the trial Court on the basis of ocular evidence fully corroborated by independent source and needs no interference. The appeal in hand is being without force, therefore, dismissed and the conviction of the accused/appellant is maintained.
25.As far as criminal revision for enhancement of sentence 'is concerned, we may point out that in this case the murder has been committed because of alleged illicit relation of the deceased with the sister of the accused. Keeping in view this motive, we are of the view that the life imprisonment is sufficient which cannot be enhanced. Hence, Revision Petition No, 12 of 2008 is dismissed.