ZULFIQAR AHMAD and anothers vs THE STATE

' JAVED IQBAL, J.---This appeal with leave of the Court is directed against judgment dated 12-7- 2006 passed by the learned Division Bench of Lahore High Court, Lahore whereby the appeal preferred on behalf of appellants has been dismissed.

2. Leave to appeal was granted by means of order dated 25-9-2006 which is reproduced hereinbelow for ready reference:-- "Leave to appeal is granted inter alia to examine as to whether prosecution has succeeded in establishing the guilt of murder of Anwar alias Nawaz, against the petitioners in view of the fact that on the same set of evidence three persons namely Shaukat Mehmood, Mubashar Afzaal and Muhammad Sarwar have been acquitted of the charge."

3. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "on the night of 1-9-1999 Nazir Ahmad, complainant along with Muhammad Anwer alias Muhammad Nawaz, his son and Mst. Kalsoom Bibi wife of Muhammad Anwer and Saee Muhammad father of Mst. Kalsoom went to sleep in the courtyard (without boundaries). At about sargiwela, the complainant, and Saee Muhammad were smoking huqqa while Mst. Kalsoom was lying on her cot and Muhammad Anwer son of the complainant was sleeping on .Another cot. In the moon lit light, Muhammad Nawaz, Shaukat Mahmood, Muhammad Sarwar sons of Muhammad Amin, Zulfiqar son of Muhammad Inayat, Afzal son of Dost Muhammad, all armed with .12 bore guns came there, Shaukat Mahmood raised lalkara for teaching a lesson to Muhammad Nawaz for causing injuries to Muhammad Sarwar. Upon this, Muhammad Nawaz fired a shot which landed on the head towards back side of Muhammad Anwer; the second shot fired, by Shaukat Mahmood hit on the left calf (Pindli) of Muhammad Anwer, the shot fired by Zulfiqar landed on the knee of the injured, Muhammad Anwer and Muhammad Sarwar accused also continued firing. Muhammad Anwer injured was attended to but he succumbed to his injuries at the spot." The appellants along with the acquitted accused namely Muhammad Sarwar and Shaukat Mahmood were tried by the learned Sessions Judge, Mandi Bahauddin who by means of judgment dated 27-3-2001 convicted the appellants under section 302(b), P.P.C. And sentenced to death. Being aggrieved an appeal was preferred which has been dismissed by the learned Division Bench of High Court, hence this appeal.

4. Mr. Ibad-ur-Rehman Lodhi, learned Advocate Supreme Court entered appearance on behalf of appellants and contended that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to support the said contention it is argued that the incident had taken place in a dark pitch night and the identification of the appellants was not above board which escaped the notice of learned Division Bench of High Court causing serious prejudice against the appellants. The learned Advocate Supreme Court has mentioned that on 20th of a Hijri Month at Sargi-vella, the moon would not be in a position to throw sufficient light for proper identification of the culprits and no specific role could have been assigned in such a situation. It is next contended that on the similar evidence Muhammad Sarwar, Shaukat Mahmood and Mubashar Afzaal (acquitted accused) have been acquitted and no reasoning whatsoever has been given by the. Learned Division Bench for awarding the maximum penalty of death to the appellants to whom the similar role has been attributed as to that of acquitted accused but no line of distinction could be drawn by the learned Division Bench and on this score alone the judgment impugned is liable to be set aside. It is argued that the statements of Kalsoom Bibi (P.W.5) and Nazeer Ahmad (P.W.6) should have been discarded being wife and father of the deceased as no corroboratory material is available to support their version and they can be termed as interested witnesses and their version should have been discarded having no evidentiary value at all. It is also contended that the occurrence had taken place outside the house and definitely some one else was responsible for it. In this regard the presence of one Shamsher alias Shammon has been mentioned who according to learned Advocate Supreme Court was responsible for the murder of deceased. It is also pointed out that the ocular version is not in consonance with the medical evidence and the exact time of occurrence has not been mentioned by the complainant which speaks a volume about his conduct and amounts to dishonest concealment of the factual position. The learned Advocate Supreme Court has laid much stress on the fact that no independent corroboration was available to maintain the conviction and sentence of death.

5. Mr. Zulfiqar Abbas Naqvi, learned Advocate Supreme Court entered appearance on behalf of complainant and supported the judgment impugned for the reasons enumerated therein with the further submission that prosecution has established the guilt to the hilt by producing cogent and concrete evidence. In this regard the statements of Kalsoom Bibi (P.W.5) and Nazeer Ahmad (P.W.6) have been referred. It is contended that the evidence which has come on record has been appreciated properly and in accordance with the settled principles qua appreciation of evidence as enunciated by this Court on different occasions in such like cases. It is next contended that the eye account is in consonance with the medical evidence and thus has rightly been relied upon by the learned trial and appellate courts. It is also contended that being inmates of the house there is no justification whatsoever to discard the statements of Kalsoom Bibi, wife (P.W.5) and Nazeer Ahmad, father (P.W.6) of the deceased.

6. Mr. M. Siddique Khan Baloch, learned Deputy Prosecutor-General entered appearance on behalf of State and has adopted the arguments of Mr. Zulfiqar Abbas Naqvi, learned Advocate Supreme Court for the complainant with the further submission that all the pros and cons of the case have been examined by the learned Division Bench and the conclusion as arrived at being well based does not warrant interference. It is also contended that the prosecution has proved the guilt to the hilt by producing forthright eye account duly supported by recovery, medical evidence and motive.

7. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of evidence by keeping the defence version in juxtaposition. We have also perused the judgments of learned trial and appellate courts with the. Eminent assistance of learned counsel for the parties. After having gone through the entire prosecution evidence we are of the view that the prosecution has substantiated the guilt by producing convincing and forthright evidence. There is no lawful justification whatsoever to discard the statements of Kalsoom Bibi (P.W.5) and Nazeer Ahmad (P.W.6) on the basis of inter se relationship as pressed time and again by the learned Advocate Supreme Court on behalf of appellants. Kalsoom Bibi (P.W.5) has fully supported the prosecution version and stood firm to the test of cross-examination and nothing advantageous could be elicited. We have observed a few contradictions in her statement which can be ignored safely being minor in nature having no substantial bearing on merits of the case. It is worth mentioning that minor contradictions do creep in with the passage of time and can be ignored.

Nazeer Ahmad (P.W.6) has supported the contents of F.I.R. By assigning a specific role to the appellant and head injury was attributed in a categoric manner to Muhammad Nawaz which according to medical evidence was sufficient to cause death of the deceased. It is to be noted that Nazeer Ahmad (P.W.6) being real father could not have substituted the real culprits with that of appellants without having any serious enmity and which was never so alleged. We are not persuaded to agree with the prime contention of learned Advocate Supreme Court that being interested witnesses the statements of Kalsoom Bibi (P.W.5) and Nazeer Ahmad (P.W.6) should have been discarded for the simple reason that it is not the question of enmity or relationship but the intrinsic value of the statement of prosecution witness which is required to be considered. It is well-settled by now that merely on the ground of inter se relationship the statement of a witness cannot be brushed aside. The concept of "interested witness" was discussed elaborately in case titled Iqbal alias Bala v. The State (1994 SCM R 1) and it was held that "friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of even an interested witness are set out in Nazir v. The State (PLD 1962 SC 269). In Khalil Ahmed v. The State (1976 SCM R 161) the testimony of deceased's son aged 15 years was accepted as he was not personally involved in any act of enmity and his statement was consistent, corroborated by the presence of injuries on his person, human bloodstained articles recovered from the accused and supported by two other witnesses. In Allah Ditta and others v. The State (1970 SCM R 734) the testimony of four P.

Ws. Out of which two had sustained injuries was accepted although they were related to the deceased because they were natural witnesses, injures sustained by two prosecution witnesses proved their presence and involvement in the occurrence and there was motive on the part of the accused to attack the deceased. Further their evidence found support from the medical evidence.

Reference can also be made to Muhammad Akbar v. Muhammad Khan and others (PLD 1988 SC 274) and Shehruddin v. Allah Rakhia (1989 SCM R 1461 at 1465) where testimony of injured witness was accepted. In assessing the value of evidence of eye-witnesses it is necessary to examine whether in the facts and circumstances of the case their presence at the scene of occurrence in such a situation as would make it possible for them to witness it should be believed and further that whether there is anything inherently improbable or unreliable in their evidence. In Din Muhammad v. Crown (1969 SCM R 777) it was observed that to test the testimony of a witness Court should not only consider whether there is consistency in the narrative, but should also consider whether the version is probable or not" (Shoukat Ali v. The State PLD 2007 SC 93), Kalsoom Bibi (P.W.5) and Nazeer Ahmad (P.W.6) are inmates of the house and thus can be termed as natural witnesses and their statements have rightly been relied upon by the learned trial and appellate courts. We have also examined the medical evidence and found the same in consonance with ocular account and thus can be considered as a corroboratory factor which has rightly been taken into consideration by the learned trial and appellate courts.

8. We have also examined the prime contention of Mr. Ibadurur-Rehman Lodhi, learned Advocate Supreme Court on behalf of appellants that no corroboration whatsoever is available on record connecting the assailants with the commission of alleged offence but it cannot be considered for the simple reason that corroboration is not a principle of law but a rule of prudence and while dilating upon the rule' of corroboration it was held in case titled Shahzad v. State (2002 SCM R D 1009) as follows:- "We would like to mention here at this juncture that corroboration is not a rule of law but that of prudence. There is no denying the fact that acid test of the veracity of the prosecutrix's statement is the inherent merit of her statement because corroborative evidence alone could not be made a base to award conviction. It is well-settled by now that "the extent and the nature of corroboration required may, no doubt, vary from witness to witness and from case to case, but as a rule it is not necessary that there should be corroboration in every particular, all that is necessary is that the corroboration must be such as to effect the accused by connecting or tending to connect him with the crime. The corroborative evidence should tend to show that the witness or witnesses evidence that the accused took part in the crime is true. To say that certain witnesses required corroboration and then to lay clown that the corroborative evidence must show that the accused did not precise act attributed to him by the witnesses is tantamount to doing away with the evidence of those witnesses. And the same would be the result if the corroborative evidence required in such as is incompatible with the innocence of the accused. The true rule governing such situation is that the corroborative evidence should at least tend to show that the evidence of the witnesses when they name the accused as taking part in the crime is true. Corroboration of the interested testimony should be such as would remove the doubt that the accused have been falsely implicated"

(Ramzan Ali v. State (PLD 1967 SC 545), Ashraf v. Crown (PLD 1956 FC 56).

9. We are not convinced that the occurrence had taken place outside the house as trend of cross- examination would reveal that occurrence had taken place in the house but by some unknown persons. Even otherwise sufficient evidence has come on record that the occurrence had taken place in the house and that too in the presence of Kalsoom Bibi (P.W.5) and Nazeer Ahmad (P.W.6).

As mentioned herein above, there is no question of any substitution of the real culprits with that of appellants which otherwise is a rare phenomena. Insofar as acquittal of co-accused is concerned, there is a drastic distinction between the role assigned to the appellants to that of acquitted accused and more so the fatal shot has been attributed to Muhammad Nawaz (appellant) which caused the death of Muhammad Anwar alias Muhammad Nawaz (deceased). It further transpired from the scrutiny of record that appellants got recovered .12 bore gun at their own. The defence plea being false and fabricated has rightly been discarded after assigning cogent reasoning. Be as it may, the prosecution has established the guilt to the hilt.

10. We have also adverted to the alternate plea of learned Advocate Supreme Court that death sentence should have not been awarded in view of the acquittal of co-accused namely Muhammad Sarwar, Shaukat Mahmood and Mubashar Afzaal as motive was attributed to Muhammad Samar which aspect of the matter should have been taken into consideration. It transpired from the scrutiny of evidence that fire made by Zulfiqar Ahmad (appellant) hit at the ankle of deceased and the fatal shot has been attributed to Muhammad Nawaz (appellant). No evidence whatsoever has come on record showing the prior concert of mind or common intention and thus a lenient view can be taken but it must not be lost sight of that Zulfiqar Ahmad (appellant) had accompanied Muhammad Nawaz (appellant) and played a vital role by extending full facilitation and connivance. However, in view of the overall scenario and the acquittal of co-accused namely Muhammad Sarwar, Shaukat Mahmood and Mubashar Afzaal, the death sentence awarded to Zulfiqar Ahmad (appellant) is converted to that of life imprisonment. This appeal is dismissed subject to the above modification.