' MUHAMMAD HASHIM KHAN KAKAR, J.---Appellant Ali Gul has sent Criminal Jail Appeal No,(S)20 2009 through Superintendent, Central Jail, Mach, challenging the judgment dated 25th August, 2009, passed by the Sessions Judge, Usta Muhammad, whereby. He was convicted and sentenced under section 302(b), P.P.C. To death as tazir and to pay compensation ofRs,50,000 to the heirs of the deceased, in default whereof to undergo R.I. For six months. The appellant was also convicted under section 324 of the P.P.C. And sentenced to suffer R.I. For five years and also to pay fine ofRs,20,000 as compensation to the injured, in default whereof to further undergo RI for three months. The benefit of section 382-B of the Cr.P.C. Was also extended in favour of the pauper appellant. Whereas the Sessions Judge, Usta Muhammad has sent Murder Reference No,(S)13 of 2009 for confirmation of the sentence of death or otherwise. Since common question of law and facts is involved, therefore, both the matters are being disposed of by means of this common judgment.
2. Briefly stated facts of the prosecution case are that on 13-4-2005, a case vide Crime No,54 of 2005 (Exh.P/4-A) was registered at Police Station Usta Muhammad on the report of complainant Ejaz Ahmed (P.W.4), wherein he alleged that on above date, he, along with his brother Zulfiqar Ali, Nadir Ali and father Abdul Sattar, was busy in reaping mustard crop, when at about 8-30 a.Rn., accused Ali Gul, duly armed with a rifle, came there and fired two shots at his brother Zulfiqar Ali, due to which he, after sustaining bullet injuries, expired at the spot. The complainant further alleged that when his father tried to run towards home, the accused also fired at him, who also received injuries and the accused ran away from the crime scene. The motive behind the incident was disclosed matrimonial dispute between the deceased and his wife. Who stated to be the cousin of accused.
3. After registration of the F.I.R. Exh.P/4-A, investigation of the case was handed over to P.W.5 Zakir Hussain, SI, who visited and inspected the site, prepared site sketch Exh.P/5-A and site inspection memo. Exh.P/5-B, secured -blood-stained earth of deceased vide memo Exh.P/5-C, collected two empties of .303 bore vide memo Exh.P/5-D, also secured blood-stained earth of injured vide memo Exh.P/5-E, collected an empty of .303 bore vide memo Exh.P/5-F, recorded the statements of P.Ws., sent the dead body of the deceased and injured Abdul Sattar to Civil Hospital, Usta Muhammad for examination, prepared inquest report Exh.P/5-G of the deceased, took into possession the blood- stained clothes of the deceased and injured vide memos Exh.P/2-A and Exh.P/2-B, arrested the accused, interrogated him, who during course of investigation made disclosure on 19-4-2005, at which disclosure memo Exh.P/5-H was prepared and in consequence whereof recovery of a rifle .303 bore was effected on his pointation from his house situated near Goth Ghous Bakhsh, which was taken into possession vide memo Exh.P/2-C. He obtained Medico Legal Certificates of the deceased and injured, sent the blood-stained articles to FSL and after completion of the investigation, placed the papers before IP/SHO, who prepared incomplete challan Exh.P/5-K. On receiving report from FSL Exh.P/5-L, report of Firearm Expert Exh.P/5-N, supplementary challan Exh.P/5-M and complete challan Exh.P/5-O were prepared.
4. On the stated allegations, a formal charge was framed and read over to the appellant, to which he did not plead guilty and claimed trial. The prosecution, in order to prove its case, produced five witnesses. P. W.1 Abdul Sattar is, allegedly, injured of the incident. P.W.2 Abdul Qadir is witness to the recovery memos Exh.P/2-A to Exh.P/2-C in respect of blood-stained clothes of deceased and injured as well as rifle .303 bore from the possession of accused. P W.3 Dr. Ejaz Ali, Medical Officer, Civil Hospital, Usta Muhammad, examined the injured and dead body of the deceased and issued Medico Legal Certificates Exh.P/3-A and Exh.P/3-B respectively. P.W.4 Ejaz Ahmed is complainant of the case, who produced F.I.R. Exh.P/4-A and P.W.5 Zakir Hussain, S.I., is the investigating officer of the case. Then the prosecution closed its side.
5. In his examination under section 342 of the Cr.P.C., the appellant denied and controverted each and every allegation of fact levelled against him by the prosecution and professed his innocence.
However, he neither made statement on oath under section 340(2) of the Cr.P.C., nor he produced any witness in his defence.
6. At the conclusion of trial, the trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt, thus, he was convicted and sentenced, as mentioned in detailed above.
7. We have heard the learned counsel for the appellant as well as learned counsel for the State and have gone through the relevant record with their valuable assistance. It has been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. On the contrary, the learned counsel for the State has maintained that prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the instant appeal deserves dismissal.
8. As far as unnatural death of deceased Zulfiqar Ali and firearm injury to P.W.1 Abdul Sattar is concerned, the same has not been seriously disputed by the defence. Dr. Ejaz Ali, who had conducted the autopsy on the dead body of Zulfiqar Ali deceased and examined injured P.W.1 Abdul Sattar, came forward as P.W.3 and furnished the detail of injuries observed by him on the corpse of deceased as well as on the person of injured. In his opinion, the death resulted due to injuries on vital organs like, lungs and damage of Aorta. The injuries were ante-mortem and homicidal in character, caused by firearm.
9. The question arises as to who has caused these injuries and was responsible for the homicidal death of the deceased and causing injury to P.W.1 Abdul Sattar. In this regard, the connection of the appellant with the crime in question is sought to be established by the evidence of P.W.1 Abdul Sattar and P.W.4 Ejaz Ahmed, who claimed to have seen the occurrence. It is the case of the prosecution that on 13-4-2005 at about 8-30 a.m., the appellant, while armed with rifle, went to the fields near Goth Ghous Bakhsh Brohi, where deceased Zulfiqar, along with his brother Ejaz Ahmed and father Abdul Sattar, was busy in cutting the mustard crops. The appellant, allegedly, fired two shots at Zulfiqar Ali, who fell down and succumbed to the injuries on the spot and, subsequently, he also fired at Abdul Sattar (P.W.1), who sustained firearm injury on his right leg and, thereafter, the appellant made his escape good from the scene or occurrence.
10. Undoubtedly, P.W.1 Abdul Sattar is father of deceased Zulfiqar Ali, whereas P.W.4 Ejaz Ahmed is his real brother. It is by now settled that mere on account of relationship of the witnesses with the deceased, their statements cannot be brushed aside nor they can be termed as interested witnesses, for the reasons that they had no direct animosity with the appellant. In this regard the Hon'ble Supreme Court in a judgment-reported in 2000 SCM R 727, while dealing with the proposition of related and interested witnesses, observed as under:-- "Moreover, we find that none of the two eye-witnesses could be termed as interested witness because none had any previous ill-will or grudge against the petitioner, merely because P.W.4 is the father of deceased and P. W. S belongs to the "Baradari" of the deceased would not make them interested as they had no reasons to substitute the petitioner for the real killer."
11. Despite lengthy cross-examination, the defence failed to create any dent in their veracity, except a few discrepancies, which are immaterial and not fatal to their evidence. Being the residents of same village and closely related to the deceased, their presence could not be doubted by any degree of seriousness.
12. The occurrence has also taken place in broad-daylight and under such circumstances, no question of mistaken identification arises at all. Their evidence is not suffering from any material contradiction, discrepancy or inherent infirmity and consistent with the probabilities materially fitting in with other evidence, more particularly the medical evidence and supported by the recovery of rifle from the possession of appellant Ali Gul and positive report of the Firearm Expert.
13. The fact that the F.I.R. Was promptly lodged, wherein the appellant was nominated shows that the complainant has narrated truthful account of the incident. The promptness of the F.I.R. And the fact that the complainant had gone alone to the police station situated at a distance of 8/9 kilometers from the place of occurrence, proves that, prior to lodging of the F.I.R., no deliberation or consultation was made, nor there was any time for him to concoct the story.
14. It was vehemently contended by learned counsel for the appellant that the prosecution case is doubtful for want of availability of independent corroboration to the ocular account of related witnesses. We are not impressed by the contention of the counsel for the reasons that the case of the prosecution is supported/corroborated by the circumstantial evidence, such as, preparation of the inquest report, site inspection memo and site sketch, recovery of empties, collection of blood- stained earth and clothes and production of the Chemical Examiner report, Firearm Expert report as well as the motive alleged in the F.I.R. Exh.P/4-A. In this regard, we have noticed that the motive behind the occurrence is mentioned in the F.I.R. Exh.P/4-A, as deceased Zulfiqar had given beatings to his wife Mst. Sakina (who is cousin of the appellant) one day prior to the instant unfortunate incident, which culminated in unfortunate death of deceased Zulfiqar Ali. The same motive has been deposed by P. W.1 Abdul Sattar during the trial in his deposition recorded on 4-10-2006. In this regard, our view fortified from the judgment-reported in 1999 PCr.LJ 1179 (Karachi), the relevant portion whereof is as under:- "Where motive was specifically pleaded in the F.I.R. And was deposed at trial by the complainant against an accused person and corroborated by another prosecution witness, the same was proved against the accused person."
15. Reverting to the insufficiency of the motive, as contended by learned counsel for the appellant and confirmation of the death sentence, awarded to the appellant, we have noticed that the appellant had taken away life of an innocent person, caused firearm injury to an aged person.
There are no mitigating circumstances to award lesser penalty, because only on the ground of insufficiency of motive, death sentence cannot be withheld, which is otherwise normal penalty for committing the murder. The Hon'ble Supreme Court of Pakistan, in a judgment-reported in 2000 SCM R 383, maintained the death sentence, despite insufficiency of motive and relationship of the witness with the deceased, the relevant observations of the Hon'ble apex Court is reproduced hereinbelow:-- "Insufficiency of motive would not be a bar for imposition of normal penalty of death. It is not a case where motive can be said to be shrouded in mystery but even if for arguments' sake it had been so even then awarding of lesser penalty would not have been justified in absence of proving any mitigating circumstance."
In view of what has been stated above, we are of the considered view that the prosecution has successfully proved that appellant Ali Gul son of Tota Khan committed the murder of deceased Zulfiqar son of Abdul Sattar and caused injury to P.W.1 Abdul Sattar and the trial Court, after proper appraisal of the evidence, has rightly convicted and sentenced him. There is hardly any substantial ground for lawfully challenging the impugned judgment, thus, the appeal is dismissed being meritless and the impugned judgment is maintained. Resultantly, the Murder Reference made by the Sessions Judge, Usta Muhammad is answered in affirmative.