' SYED IFTIKHAR HUSSAIN SHAH, J.---This judgment will dispose of Criminal Appeal No.151-J of 2008 filed by Muhammad Ismaeel convict/aPPellant, who was convicted and sentenced by the learned Additional Sessions Judge, Faisalabad vide judgment dated 17-7-2006 as under:-- ' Under Section 302-b, P.P.C.
' Death and to pay compensation of Rs. E00,000 under section 544-A, Cr.P.C. Payable to the legal heirs of the deceased in default whereof to further undergo simple imprisonment for six months.
' Murder Reference No.181 of 2007 of 2007 for confirmation or otherwise of death sentence of the appellant Muhammad Ismaeel through this judgment.
2. Suctinctly, the facts as mentioned in the F.I.R. Exh.PA registered on the complaint Exh.DA/1 of Muhammad Safdar, his younger brother Javed Akhtar was Imam of Jamia Masjid Norani of the village, who used to reside in the adjoining Ihata of the said mosque. Javed Akhtar deceased had, got constructed the place for ablution and "Taharat Khanas" for the said mosque. Muhammad Ismaeel along with other co-accused had forbidden Javed Akhtar not to construct the same. On 4- 1-2004 at about 8-00 a.m. Muhammad Ismaeel armed with repeater .12-bore, Muhammad Ishaq armed with hatchet, Muhammad Yaqoob and Ramzan alias Jani both empty handed all sons of Imam Din came there. Accused Muhammad Ismaeel armed with repeater .12-bore, remained standing there while the other co-accused started dismentling the "Taharat Khanas". Javed Akhtar, who was imparting Dars-eQuran in the mosque, came there and tried to stop them from dismentling the "Taharat Khanas". On hearing noise, the complainant and the witnesses Muhammad Akram and Samuel Masih along with many other residents of the village attracted there. Muhammad Ishaq accused raised lalkara that Javed Akhtar be taught a lesson for constructing "Taharat Khana", whereupon accused Muhammad Ismaeel fired two shots which landed on the backside of the left shoulder of Javed Akhtar and he fell down. The complainant and the P. Ws. Did not go near. Due to fear. The accused persons fled away from the spot while making aerial firing and raising lalkaras. Javed Akhtar succumbed to the injuries at the spot.
' The motive behind the occurrence as narrated in the F.I.R. Was that Javed Akhtar deceased had constructed "Taharat Khanas" of the mosque and Muhammad Ismaeel accused etc. Had forbidden him to leave the said place vacant as the passage leading to the house of the accused persons would become narrow.
3. After the submission of challan, accused Muhammad Ishaq, Muhammad Yaqoob, Ramzan alias Jani and Muhammad Ismail were charged under section 302/34, P.P.C. To which they pleaded not guilty and claimed trial. The prosecution, in order to substantiate the charge, examined as many as 13-witnesses.
4. Muhammad Ali No.3850/C P.W.1, Muhammad Akram No.4256/C P.W.2, Muhammad Aslam No.1854/C P.W.3, Akbar Ali Nizami, draftsman P.W.5, Saleh Muhammad No.1973/C P.W.6, Attiqullah No.3152/C P.W.7, Mehmood Ahmad No.1828/HC P.W.8, Haji Ghulam Rasool P.W.9 are the formal witnesses. Muhammad Safdar Farooqi P.W.10 and Muhammad Akram P.W.11 are the eyewitnesses and Habib Ullah S.-I. P.W.12 and Ghulam Muhammad Inspector (Rtd.) conducted the investigation of this case.
5.Dr. Allah Rakha P.W.4 conducted the post mortem examination on the dead body of deceased Javed Akhtar and he observed following injuries:-- ' INJURIES ' No.1-A. 9 number of lacerated fire arm wounds of entrance in area of 10 x 11 cm on the front of left chest upper part, lower boarder of this area started from the left nipple. Size of each injury was 3/4 x 1/2 c.m. No burning or blackening were present on clothes or on the wounds.
' No.1-B. 7 Numbers of lacerated fire arm wounds of exit each measuring 0.5 x 0.5 c cm at back of left chest, middle part, in area of 11 x 8 cm,. 3 cm from the mid vertebral line.
(2) Burnt skin area of 1/4 x 1/4 cm on front of left chest on inner and of left clavicle.
(3) Burnt skin area of 1/2 x 1/4 cm at front of neck right side at its base.
' OPINION ' In his opinion death was due to injury 'No.1 caused by fire-arm weapon which damaged the left lung and blood vessels and excessive loss of blood, shock and finally cardio-pulmonary arrest, which was sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem and caused by fire-arm weapon.
' The probable time that elapsed between injury and death was one hour and between' death and post mortem within six hours."
6. The prosecution after tendering in evidence the report of Chemical Examiner Exh.PM, report of Serologist Exh.PN, report of Forensic Science Laboratory Exh.PQ, copy of F.I.R. No.136 of 2004 registered at Police Station Chuchak District Okara and copy of Jamabandi for the year 1999-2000 as Exh.PR and Exh.PS closed its evidence.
7. After closing of the prosecution evidence all the accused were examined under section 342, Cr.P.C. The incriminating evidence produced by the prosecutions was put them, which they termed as incorrect, to question as to why this case was registered and why the P.Ws. Have deposed against him, appellant Muhammad Ismail deposed as under:- "This case has been booked up against me and my brothers to snatch our residential house which is adjacent to the said mosque."
8. Learned trial Court, after hearing the learned counsel for the parties and going through the evidence on record, acquitted accused Muhammad Ishaq, Muhammad Yaqoob and Ramzan alias Jani by extending the benefit of doubt while accused/appellants Muhammad Ismail was convicted and sentenced to death and to pay compensation of .Rs.100,000 to be paid to the legal heirs of the deceased Jawed Akhtar in default whereof 18 further undergo simple imprisonment for six months with the benefit of section 382-B, Cr.P.C.
9. Learned counsel for the appellant has contended that both the eye-witnesses are real brothers of the deceased; that they are interested and inimical witnesses and they have improved their statements keeping in view the post mortem examination report because in the F.I.R., the case of the prosecution is that the deceased received tire-arm injury at the back of his shoulder whereas according to the post mortem examination report, there was single injury on the person of the deceased on, the front side of his chest; that the recovery of gun in this case is inconsequential as no empty was recovered from the spot; that there is the report of Forensic Science Laboratory only to the extent that the gun was in working condition; that there are material contradictions in ocular account; that three co-accused have been acquitted on the basis of same evidence and their acquittal has not been challenged by the complainant or the State and for maintaining the conviction of the appellant, strong corroboration is necessary regarding the same evidence which has been disbelieved for three co-accused; that it was fogi day and the witnesses could not see the occurrence as they have deposed; that independent witnesses were, present at the seen of occurrence but no one appeared to support the prosecution version; that if the Court is not persuaded with the arguments for acquittal of the appellant and it is not the case of the appellant for capital punishment for the reason that this is a case of single fire shot; that there is contradiction in the medical as well as the ocular account regarding receipt of injury; that the recovered weapon of offence is inconsequential as no empty was recovered from the spot; that there is report of Forensic Science Laboratory regarding the recovered weapon so in working order; that the construction of wash room in the street is apparent from Exh.PE; that the element of sudden provocation cannot be excluded by the deceased in this case, who blocked the only passage leading to the home of the appellant/accused.
10. On the other hand. Learned D.P.-G. Assisted by the learned counsel for the complainant has vehemently opposed this appeal and contended that the appellant is nominated in the promptly lodged F.I.R.; that it is a daylight occurrence with the specific role of causing fire-arm injury on the vital part of the deceased; that motive in this case is admitted between the parties; that the ocular account is straightforward and even after lengthy cross-examination, there is no contradiction; that the accused remained absconder for more than eight months; that mere acquittal of three co accused is not of any help to the appellant as the Court has to sift the grain from chaff and the principle of "Falsus in uno falsus in omnibus" does not apply in the prevailing circumstances; that during cross-examination the Investigating Officer stated that the appellant, in his first version, has stated before the police that it was only the appellant who is responsible for this occurrence and the remaining' accused were not involved in the occurrence; that the eye-witnesses are the resident of same place and their presence at the place of occurrence at the time of occurrence is natural. Relies on "2011 SCM R 429".
11. We have heard the learned counsel for the appellant, learned D.P.-G. For the State assisted by the learned counsel for the complainant and have also gone through the record.
12. The prosecution has mainly relied upon the statements of complainant Muhammad Safdar Farooqi P.W.10 and Muhammad Akram P.W.11, who are real brothers of deceased Javed Akhtar.
Muhammad Safdar Farooqi P.W.10 has deposed that two years and four months back at about 8- 00 p.m. Ismail, the appellant, armed with hatchet .12-bore repeater along with his co-accused Muhammad Ishaq armed with hatchet, Yaqoob and Ramzan came at the spot and started demolishing "Taharat Khana" of the mosque. At that time real brother of the complainant namely Javed Akhtar, who was imparting Dars-e-Quran to the children of the village, came out of the mosque and retrained the appellant and his aforesaid co-accused from doing so. The complainant and his brother Muhammad Akram along with Samuel Masih attracted to the place of occurrence on hearing noise. Many other persons also reached the spot and within their view, Ishaq accused raised Lalkara that _Javed Akhtar be given a lesson for constructing "Taharat Khana" whereby Muhammad Ismail accused fired two shots hitting Javed Akhtar on his chest, who expired at the spot. Motive for occurrence was a dispute over the construction of "Taharat Khana".
13. Muhammad Akram P.W.11, has also made a similar statement and has corroborated him on all material and major aspects of the case. Learned counsel for the appellant has assailed the testimony of both the aforesaid P. W. Being real brothers of the deceased and inimical towards the appellant. But it is now well-settled law that merely on the basis of inter se relationship of the witnesses with the deceased, their testimony cannot be discarded. The occurrence of this case has taken place near the house/place of residence of the P.Ws. And the deceased and their presence at the place of occurrence at the time of occurrence is natural one. Both the P.Ws. Have given plausible explanation of their attraction to the place of occurrence and witnessing the incident.
Both the P.Ws. Were subjected to lengthy cross-examination who stood firm to the ordeal of the cross-examination. It has been held by the Hon'ble Supreme Court of Pakistan in case titled "Iqbal alias Bhala and 2 others v. The State (1994 SCM R 1)" as under:- "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."
"Muhammad Amin v. The State (2000 SCM R 1784 (Supreme Court of Pakistan)".
"Mere friendship or relationship with the deceased does not make a witness an interested one and testimony of such a witnesses, who otherwise seems to be truthful witness, cannot be rejected on the such ground."
"Khadim Hussain v. The State (PLD 2010 Supreme Court 669)".
"Mere relationship of a witness with the deceased is not sufficient to discard his statement, if he stands firm to the test of cross-examination and is corroborated by sufficient material".
"Khizar Hayat v. The State (2011 SCM R 429)
"The statement. Of witness on account of being interested witness can only be discarded, if it is proved that an interested witness has ulterior motive on account of enmity or any other consideration. Succinctly, this proposition has been considered in a number of cases and this Court has declined to give weight to it in the absence of any reason, leading to show that for some ulterior motive or on account of enmity the statement has been falsely given. There is no rule of law that statement of interested witness cannot be taken into consideration without any corroboration and even uncorroborated version can be relied upon if supported by the surrounding circumstances." .14. Therefore, we do not find any reason to doubt the testimony of P.W.10 Muhammad Safdar Farooqi and P.W.11 Muhammad Akram qua the appellant which otherwise is fully supported by the medical evidence on record as the Dr. Allah Rakha (P.W.4), who conducted the post-mortem examination of the deceased has observed firearm injuries on the person of the deceased Javaid Akhtar and it is case of the prosecution that the appellant had caused first firearm injuries to the deceased.
15. Learned counsel for the appellant has contended that according to the F.I.R., the deceased had received firearm injury from the back side of his left shoulder which went through and through but the Prosecution witnesses while appearing as P.W.10 and P.W.11 have made improvement in their deposition and have stated that two successive fires of Ismail convict had hit on the chest of the deceased. According to the post modem examination and the statement of Dr. Allah Rakha P.W.4 the fire arm injury and the entry wounds were on the front of the left chest but both the P. Ws. Were not cross-examined on this aspect that they have made improvement in their statements or have purged in the Court that the fire shot was received by the deceased on front of his chest.
16. The learned counsel for the appellant has stressed a lot that three accused on the same evidence have already been acquitted by the learned trial Court, therefore, the appellant could not be convicted. This argument of learned counsel is not helpful, as the case of appellant is quite distinguishable from the case of co-accused Ishaq, Yaqub and Ramzan, who were acquitted by the trial Court. Ramzan and Yaqub were empty handed at the time of occurrence, and Ishaque was armed with hatchet but aforesaid Ishaq had not attacked the deceased and role attributed to .Him is of lalkara. It was the appellant, who had fired at the deceased resulting in his death, weapon of offence with which Ishaq was armed (hatchet) was not recovered. The prosecution has miserably failed to establish its case against the aforesaid acquitted accused. It is by now well- settled that principle of "Falsus in uno falsus in omnibus" has no universal application and grain has to be sifted from the chaff to ensure justice. In this regard, we refer an observation of the honourable Supreme Court in judgment reported as "Khadim Hussain v. The State" (2010 SCM R 1090) in the following words:-- "In fact a futile exercise appears to have been made to press into service the doctrine of falsus in uno falsus in omnibuss" (false in one thing false in all) which is admittedly not applicable in prevalent system of criminal administration of justice and more so there is no rule having universally applicable that where some accused are not found guilty, the other accused Ipso facto stand acquitted because the Court has to sift the grain from the chaff "Samara v. State"
(1973 SCMR 162). There is no cavil to the preposition that the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the Superior Courts of the country without reservations and cannot be accepted as one of universal application. In the last analysis as stated in some of the eminent decisions, the grain has to be sifted from the chaff in each case in the light of its own peculiar circumstances as per case law in "Riaz Hussain v. The State (2001 SCMR 177)."
17. Motive behind the occurrence is the construction of "Taharat Khana" by the deceased in the lane, which was being used by the appellant as path and path was blocked by the construction of "Taharat Khana", therefore, due to this grudge, the appellant had attacked upon the deceased and committed his murder. It is an admitted fact that there was a path of 5-feet leading from the house of the appellant towards the mosque and admittedly, the construction of "Taharat Khana" had narrowed the said path, therefore, the motive stands established.
18. The appellant has neither appeared as required under section 340(2), Cr.P.C. Nor he produced any evidence in his defence. Howeverer, the defence version as emerged during the examination of appellant under section 342, Cr.P.C. Is that the deceased wanted to snatch the house of the accused adjacent to mosque, but the defence has failed to produce any evidence to substantiate the defence plea, which is false and appears to be afterthought.
19. Learned counsel for the appellant has contended that if the Court is not persuaded with the arguments of acquittal, even then the case of the appellant is not of capital punishment for the reason that this is a case of single fire shot. The recovery of Gun from the appellant is inconsequential as no crime empties were recovered from the spot and even the pellets recovered from the dead body were not sent to the Forensic Science Laboratory and the report of the Forensic Science Laboratory is that Gun was in working condition cannot be used as corroborative piece of evidence, but even if the recovery of Gun is excluded from the consideration, there remains sufficient evidence in the forum of ocular account fully supported by the medical evidence to prove the prosecution case beyond any shadow of doubt against the appellant. Therefore, the conviction of the appellant (Ismaeel) under section 302(b), P.P.C. Recorded by the learned trial Court is based upon the well-settled principles of appreciation of evidence and is liable to be maintained.
20. So far as the quantum of sentence not a: case of capital punishment as there is concerned, we have observed that it is are certain circumstances leading towards H the lesser sentence, the recovery of Gun remained inconsequential, further more the appellant has fired a single shot and as is apparent from the site plan Exh.PE, the deceased of the case had blocked the only passage to the house of the appellant; that may had provoked the appellant to commit this occurrence. It is well-recognized principle that the accused is entitled to the benefit of doubt as extenuating circumstances while deciding the quantum of sentence. Reliance is placed upon "Mir Muhammad alias Miro. v. The State" (2009 SCM R 1188).
21. Resultantly, while maintaining the conviction of the appellant (Ismail), under section 302(b), P.P.C., his sentence of death is altered to imprisonment for life I with the benefit of section 382(b), Cr.P.C. However, the penalty of compensation and sentence in default thereof as awarded by the trial Court is maintained.
' The criminal appeal is hereby dismissed with the aforementioned modification and the Death Sentence awarded to the appellant is NOT confirmed and Murder Reference No.603 of 2006 is answered in negative.
Sentence reduced.