' SYED IFTIKHAR HUSSAIN SHAH, J.---The appellant Abdul Hameed son of Aweeran has assailed the judgment dated 26-2-2007 passed by the learned Additional Sessions Judge, Jampur whereby the appellant 'was convicted and sentenced to death under section 302(b). P.P.C. And was directed to pay Rs,2,00;000 as compensation to the legal heirs of the deceased under section 544-A Cr.P.C.
2. The trial Court has also submitted Murder Reference No, 290 of 2007 under section 374, Cr.P.C.
Seeking confirmation or otherwise of death penalty awarded to the appellant. Both the matters are inter-linked and inter-connected so are being taken up and disposed of together through this single judgment.
3. Ghulam Qadir (P.W.3) got registered F.I.R Exh. PB/i mentioning therein that on 31-2-2004 at about 8 a.m. He along with his brothers namely Muhammad Khan, Muhammad Aslam, and his son Meer Sahib was present in his house situated in the village Thul Chang Tehsil Jampur District Rajanpur.
His son Meer Sahib went towards south-west of his house in order to bring grass for the goats and when reached in front of the house of Aweeran, all of a sudden Abdul Harneed (appellant) armed with rifle china bore, Aweeran armed with rifle 11 Guzari and Abdul Majeed empty handed appeared and raised a lalkara that they are going to teach a lesson to Meer Sahib for insulting Abdul Hameed. The complainant along with his brothers Muhammad Khan and Muhammad Aslam after hearing lalkara came out of their house and in their view Abdul Hameed (appellant) made two successive fires which hit on the left buttock and on right side of the flank of Meer Sahib, who after receiving the fire ran towards the house of Suleman son of Bahadur. All the accused followed him and Abdul Majeed and Aweeran told Abdul Hameed that Meer Sahib is going alive. Then Abdul Hameed opened another fire of his rifle which hit on the right flank of Meer Sahib who after receiving fire fell down near the house of Suleman. The complainant and his brothers tried to intervene and, stepped forward, to save the life of Meer Sahib but all the accused threatened them to kill. Meer Sahib succumbed to the injuries at the spot.
4. The motive behind the occurrence is that a few months prior to the occurrence Abdul Hameed (appellant) and Meer Sahib (deceased) had quarreled over a watch. Latter on the matter was patched up through the intervention, of the Baradri but Aweeran, Abdul Hameed and Abdul Majeed had a grudge against the deceased and in order to take revenge, they committed the murder of Meer Sahib.
5. The appellant and his co-accused namely Aweeran and Abdul- Majeed remained absconder.
However, on 23-8-2005 the appellant was arrested and the challan was submitted against him.
6. On 8-4-2006 the formal charge under section 302/34 P.P.C. Was framed against the appellant, who did not plead guilty to the charge and claimed trial. Therefore, the prosecution was directed to produce evidence to substantiate the charge.
7. The prosecution has examined Muhammad Shafi Constable (P.W.1) who on 4-9-2005 was handed over a sealed parcel containing rifle China bore for taking to the office of the Forensic Science Laboratory. Riaz Hussain, Patwari Halqa (P.W.2) prepared the scaled site plain of the place of occurrence Exh. PA, Exh.PA/1 which is in the scale of forty karams = one inch. Ghulam Qadir (P.W.3) is the complainant and eye-witness of this occurrence. Muhammad Aslam (P.W.4) is another eye-witness of this occurrence. The blood stained earth and crime empties P.1-3 were collected from the place of occurrence by the Investigating Officer in his presence and were taken into possession vide recovery memo Exh.PC and Exh. PD attested by him and Muhammad Khan. He also identified the dead body of the deceased at the time of autopsy and after the postmortem examination doctor handed over the last worn closes of the deceased i,e, Kameez, P.2, Shalwar, P.3, Lungi P.4 along with a pair of shoes P.5/1-2 to Mujahid Hussain Constable, who produced the same before the Investigating Officer, who took into possession vide recovery memo. Exh.PE in the presence of this witness. Ata-ud-Din (P.W.5) the Moharrir of the Police Station was handed over a sealed parcel containing rifle china bore by the Investigating Officer for safe custody in the Malkhana and he handed over the said parcel to Muhammad Shafi (P.W.1) for onward transmission to the Forensic Science Laboratory. Ghulam Farid (P.W.6) investigated this case and he recorded the statement of the complainant Exh. PB and sent the same to the police station for registration of the case. He visited the place of occurrence, inspected the same and prepared the site plan of the place of murder of Meer Sahib Exh.PF and recorded the statements of the P.Ws. Under section 161, Cr.P.C. Collected the blood stained earth, three empties from the place of occurrence and took into possession the blood stained earth Exh.PC vide recovery memo Exh.PD. Mujahid Hussain constable produced the last worn clothes of the deceased before him which were taken into possession vide recovery memo Exh.PE. He also got prepared the scaled site plan of the place of occurrence took into possession the Exh. PA from Halqa Patwari and also wrote thereon his notes in red'ink. He also obtained non-bailable warrants of arrest of the accused who could not be arrested and he also obtained proclamation against them. Syed Siraj Hameed, S.I. (P.W.7) arrested the appellant on 23- 8-2005, who during interrogation made a disclosure and got recovered rifle P.6 which was taken into possession vide recovery memo Exh. PG. He also prepared the rough site plan of the place of recovery Exh. PH.
8. Dr. Muhammad Rashid, Medical Officer, (P.W.8) on 31-10-2004 conducted the postmortem examination on the dead body of the deceased Meer Sahib and found the following injuries on his person:--
(1) A firearm wound of 2 c.m. x 1 c.m. x going deep. Margins inverted. Burning and blackening present, situated on just below the anterior superior iliac spine of the left leg (entry wound).
(2) A lacerated wound of 3 c.m. x 2 c.m. x margins everted, burning and blackening not present situated on right lumber region (Exit wound).
(3) A firearm wound of 1 c.m. x 1 c.m. x going deep, margins inverted. Burning and blackening present, situated on right 7th rib on lateral aspect of the right side of the chest (entry wound).
(4) A lacerated wound of 6 c.m. x 4 c.m. x margins everted. Burning, blackening not present, situated on just below the left nipple on left side of the chest (exit wound).
(5) A firearm wound of 3 c.m. x 2 c.m. x margins inverted. Burning and blackening present situated on right side of the abdomen near the 12th rib (entry wound).
(6) A lacerated wound with burning blackening crossing the skin just medial to injury No,5 (exit wound).
' In the opinion of the aforesaid medical expert all the injuries were ante-mortem and caused by firearm weapon. Injuries Nos.3 and 4 proved fatal. Death occurred due to hemorrhage and shock and injuries to the vital organs, right lung, left lung and heart. These injuries were sufficient to cause death in the ordinary course of nature.
9. The prosecution has also submitted the report of. Chemical Examiner Exh. PK and Forensic Science Laboratory Exh. PL in evidence.
10. After the close of the prosecution evidence, accused/appellant was examined under section 342 Cr.P.C. By the trial Court and incriminating evidence produced by the prosecution was put to him, which he termed as incorrect ad alleged that he is innocent and he has not committed the murder .Of Meer Sahib. Actually the deceased was murdered by his father Aweeran after seeing him in the objectionable position with his daughter. At the time of alleged occurrence he was neither present in his house nor at the place of occurrence and has been falsely involved in this case by the complainant party only to get "chatti" from him being real son of Aweeran, his co- accused. P.Ws. Being closely related inter se with the deceased and being inimical towards them have falsely implicated him. However, he has neither produced any evidence in his defence nor appeared as required under section 340(2) Cr.P.C. In disprove of the allegations levelled against him.
11. The learned trial Court after recording the evidence and hearing the parties, convicted the appellant and sentenced him to death and to pay Rs,2,00,000 as compensation to the legal heirs of the deceased. Hence, the present appeal and the murder reference.
12. We have heard the learned counsel for the appellant, learned D.P.G. For State and also the learned counsel for the complainant and have perused the record.
13. The learned counsel for the appellant has contended that the convict has been falsely involved in this case. P.Ws alleged eyewitnesses of the occurrence are closely related to the deceased. P.W.3 being father and P.W.4 being real paternal uncle, their evidence without an independent corroboration could not be relied upon, motive could not be established by the prosecution, the occurrence 'has not taken place at two places as alleged by the prosecution. It has taken place also in front of the house of Suleman as is apparent from the site plan Exh.PA and Exh.PF, from where admittedly the blood stained earth was taken, rifle allegedly recovered from, the convict was not found wedded therefore, the prosecution has failed to establish the guilt of the convict and the convict is liable to be acquitted. Furthermore, the convict was under the influence of his father and elder brother Abdul Majeed co-accused, what he did, he did on their exhortation. Therefore, the death penalty should have not been imposed. Learned counsel for the appellant has relied on Tariq and 2 others v. The State (1995 SCM R 168), Abdul Majeed alias Jaidu and others v. The State 1996 SCM R 333 and Amin All and another v. The State (2011 SCM R 323).
13. On the other hand, learned D.P.G. As well as the learned counsel for the complainant has contended that it was a day light occurrence. The appellant was fully nominated in the promptly lodged F.I.R with the specific role; P.Ws. Have fully implicated the under trial accused/appellant in the commission of the offence. The medical evidence is in-consonance with the ocular account.
Therefore, the conviction is based on merits and is liable to be maintained.
14. The ocular account has been furnished by Ghulam Qadir (P.W.3) and Muhammad Aslam (P.W.4)
Ghulam. Qadir (P.W.3) has re-. Iterated the contents of his statement Exh.PB. Muhammad Aslam his brother (P.W.4) has fully corroborated him on all the material aspects of the case. Both of them have categorically stated that on 31-10-2004 at about 8 a.m. They reached after hearing of lalkara raised by the accused and in their view Abdul Hameed (appellant) had fired at Meer Sahib deceased with his rifle which hit on his left buttock, right side of flank and right side of the belly near the flank. Both of them have further stated that after receiving the two successive fire shot of the appellant, the deceased went towards the house of the Suleman Chang where he received the third fire. Learned counsel for the appellant has assailed the testimony of these witnesses on the ground of their close relationship with the deceased.
15. It is an admitted fact that the eye-witnesses of this case were related to the deceased but on this score their statements cannot be discarded. It is now a well settled law that merely on the basis of inter se relationship, the statements of the P.Ws. Who stood firm to the ordeal of cross- examination, cannot be discarded especially when sufficient corroboratory material evidence is also available. It is to be noted that only for the safe dispensation of justice, corroboration is necessary in the given circumstances but the scope of the principle cannot be extended to the case of ancillary facts testified by the witnesses: Reliance can be placed on Riaz Hussain v. The State (2001 SCM R 177) .
16: It is the intrinsic value of the statement, of the prosecution witness which is to be examined and not the relationship. Reliance can be placed on Khadim Hussain v. The. State (PLD 2010 SC 669).
17. In the instant case both the F'.Ws. Remained firm to the ordeal of cross-examination. Their statements are confidence inspiring and the same have been rightly relied upon by the learned trial Court and the learned counsel for the appellant could not point out any material contradiction in their statements. Version of the P.Ws. Remained firm, consistent, straightforward and worthy of credence on all material particulars. Statements of both eye-witnesses got due corroboration from medical evidence to the extent of nature of injuries, kind of weapons used for causing such injuries and duration.
18. So far as the motive on the part of the case is concerned, it is alleged by. The prosecution that the deceased and the appellant had a quarreled over a wrist watch and later on the matter was patched up with the intervention of the Baradri. It has been mentioned in the complaint Exh.PB and the F.I.R. Exh.PB/1 that a few months before the occurrence the appellant Abdul. Hameed and the deceased Meer Sahib quarreled over a wrist watch but the matter was patched up. Ghulam Qadir (P.W.3) and Muhammad Aslam (P.W.4) have deposed that a few months prior to the occurrence, the deceased and the appellant had quarreled over a wrist watch. Ghulam Qadir (P.W.3) has stated in the cross-examination that the aforesaid quarrel took place, two months before the occurrence which took place in the land owned by the parties and no other witness was present at the time of said altercation. Later on a compromise was affected between the parties at the request of the accused Abdul Hameed (appellant), his father and one Jallab. None of the P.Ws. Has deposed that the aforesaid altercation took place in their presence. They have not even mentioned the day and exact place of the aforesaid alleged altercation between the deceased and the appellant. Muhammad Aslam (P.W.4) has frankly admitted in his cross-examination that he was not present at the time of the aforesaid altercation. He had not seen the said wrist watch which was the bone of contention between the accused Abdul Hameed (appellant) and the deceased Meer Sahib and the dispute of watch was told to him by Meer Sahib deceased. The prosecution has failed to establish alleged motive through independent and trustworthy evidence.
19. It is also contended by the defence that the occurrence took place in front of the house of Suleman from where only the blood stained earth was taken as is apparent from the site plan Exh.PA and Exh.PF. Admittedly there is an intervening distance of 18/19 karam from the place of first shot but no trail of blood was seen on the path nor any P.Ws. Have deposed about it and admittedly it is the place in front of the house of Suleman from where the blood stained earth was taken which establishes that the place of occurrence was in front of the house of Suleman.
20. The defence version as suggested to the P.Ws. 3 and 4 is that Aweeran the father of the applicant had fired at the deceased while seeing him with his daughter at the house of Suleman in an objectionable manner but the witnesses to whom this version was put have categorically denied the same and the defence has not produced any evidence to substantiate its version.
21. We have examined with care and caution, the defence version which is nothing but a simple denial and mere substitution that the deceased was fired at by the father of the appellant namely Aweeran, who had seen the deceased in an objectionable position with his daughter. As discussed above, this defence version could not be substantiated by the defence through any evidence. The P.Ws. Whose presence at the spot was natural had fully implicated the appellant in the commission of offence.
22. We have carefully examined the respective contentions as agitated on behalf of the appellant and for the State, scrutinized the entire prosecution evidence by keeping the defence version in juxta position and have also perused the judgment of the trial Court carefully. After going through the entire evidence, we are of the view that the prosecution has established the guilt to the hilt by producing forthright and convincing evidence. In this regard statements of P.Ws. 3 and 4 can be referred. It was a day light occurrence. The F.I.R. Was promptly lodged. The incident was witnessed by P.Ws. 3 and 4, who have attributed specific role of firing to the appellant, who was armed with the firearm at the time of occurrence. In spite of the lengthy and exhaustive cross-examination of the eye-witnesses, nothing beneficial could be elicited rendering any help to the appellant.
23. We do not agree with the contention of the learned counsel for the appellant that the ocular version could not be substantiated by the medial evidence. Three fire arm injuries were attributed to the appellant and according to postmortem report there were three entry and three exit wounds on the person of the deceased. The ocular version finds fully support from the medical evidence as is evident from the nature of the firearm injuries received by the deceased.
24. In the light of what has been discussed above, we are of the view that the prosecution has substantiated the guilt of the appellant by producing worthy of credence and confidence inspiring evidence. The judgment is free from any illegality or irregularity. However, the prosecution has failed to established the motive as alleged by it and the place of occurrence was withheld by the prosecution. The blood stained earth was collected only from one place in front of the house of Suleman where the dead body was lying as is apparent from the site plan Exh.PA, PA/1 and Exh.PH.
25. The accused appellant was admittedly a young boy of 19/20 years old at the time of occurrence and it is alleged by the prosecution itself that father of the appellant and his brother namely Abdul Majeed had been exhorting the appellant to fire at the deceased and done him to death which has been mentioned in the F.I.R. Itself that Meer Sahib ran towards the house of Suleman, who chased him. Aweeran and Abdul Majeed told Abdul Hameed that the deceased is going alive and then Abdul Hameed (appellant) again fired at the deceased. It has clearly established that the appellant committed the offence under the command of his father and his elder brother.
26. The Hon'ble Supreme Court of Pakistan in a case titled Abdul Majid alias Jaidu and others v. The State 1996 SCM R 333 has held that nothing was wrong in awarding the sentence of imprisonment for life to two brothers/convicts, who have participated in the occurrence under the influence of their elder brother and maintained the decision of the Division Bench not confirming the death sentence and awarding imprisonment for life. In the case titled Tariq and 2 others v. The State (1995 SCM R 168) the Hon'ble Supreme Court held that convicts of the said case namely Arif and Tariq acted under the influence of their mother and sister's exhortation, attacked on the deceased with their dagger and injured him fatally. Considering that Arif appellant acted under the influence of his mother and sister's exhortation it was held that he was entitled to the lesser penalty and while maintaining the conviction and sentence under section 302(b), P.P.C. Altered the sentence to the imprisonment for life.
27. Keeping in view all aspects of the case and the case-law cited above, we are of the view that it is not a case of capital punishment, therefore while maintaining the conviction of the appellant under section 302(b), P.P.C. We, alter sentence of death awarded to him into imprisonment for life.
The order with regard to payment of compensation is also maintained. Benefit of section 382-B, Cr.P.C. Shall be extended to the appellant.
28. Resultantly, this appeal stands dismissed with the above modification.
29. The death sentence awarded to the appellant is NOT confirmed and Murder Reference is answered in the negative.
Sentence reduced.