Syed Hussain Mazhar Kaleem, J.--Above titled appeal has been directed against the judgment of Additional District Court of criminal jurisdiction, Rawaiakot dated 07.03.2007, whereby the appellant was awarded sentence of `Qisas' under Section 302, A.P.0 and one year rigorous imprisonment under the Arms Act. A reference under Section 374, Cr.P.C. has also been made by the said Court for confirmation of the sentence of Qisas.
2. Brief facts forming background of the appeal and the reference are that a case under Section 302, A.P.0 was registered at Police Station, Thorar on the complaint of Muhammad Ashfaq Tahir. It was reported that the complaint's daughter Mst.Nusrat Ashfaq was married to Irshad Sharif. They often used to visit his home. Last night they also came and stayed there. The complainant's son-in- law was principal of Iqra Public School. On 26.02.2000 at 9.15 a.m. he left the house for Thorar. When he arrived near the place of occurrence Arshad Mehmood accused armed with .12-bore gun, hiding behind the road came across and fired three shots at him but failed to achieve the target, the victim tried to escape and started running towards the house of his father-in-law. The accused followed and fired from a close distance which hit him at his chest. After receiving injury he fell down. The accused fled away after committing the occurrence, later on the victim succumbed to the injury while on the way to combined military hospital Rawalakot. The occurrence was stated to be witnessed by Maqbool Hussain, Zahid, Masood. Ashfaq, Khadim Hussain and Muhammad Karim Khan. Motive was that. Mehboob Ahmed Khan father of the appellant asked for the hands of Mst.Nusrat Ashfaq for his son but the complainant refused, upon which they nourished a grudge and committed the murder.
3. After completion of investigation, the challan was submitted against the appellant before Additional District Court of Criminal Jurisdiction, Rawalakot. The charge against him was framed on 20.04.2000. He pleaded not guilty and the prosecution was directed to produce evidence in support of the case. After necessary proceedings, the Court convicted the appellant in the aforesaid manner through the impugned judgment, hence the above titled appeal and the reference.
4. Learned Counsel for the appellant argued that an enmity w: prevailing between the parties. The F.I.R was lodged after a considerable delay. Two hours and 15 minutes were consumed in concocting the stone to rope the appellant in a false case. The alleged motive was not proved the prosecution witnesses were closely related to the deceased and they were interested in conviction of the appellant, their deposition was highly doubtful, P.W Maqbool Hussain was a previous convict, thus there was no justification to rely upon his statement. The complainant and his son despite close relations with the deceased did not make any effort to rescue him. This creates a serious doubt about their presence at the place of occurrence at relevant time. The recovery of weapon of offence was highly doubtful, it was claimed that convict appellant was arrested two days after the incident. .12-bore gun was shown to have been seized on 28.02.2000 but the record reveals that he was produced before the competent Magistrate on 29.02.2000 and the remand was sought for recovery of the weapon of offence. The claim of the eye-witnesses that the deceased was fired upon from a close distance was negated by the post-mortem report and the site plan. The ocular version given by the partisan witnesses was not corroborated by any independent material. The investigation was conducted dishonestly. The police connived with the complainant and collected false evidence against the appellant. Presence of the eye-witnesses at the place of occurrence at relevant time was not established and their deposition was not supported by any independent material, thus there was no justification to rely upon the same for recording conviction, therefore, by accepting the appeal and setting aside the impugned judgment, he may be acquitted of the charge.
5. On the other side, it was argued that the occurrence took place during broad day light, identification of the convict-appellant was not in doubt, he was nominated in promptly lodged F.I.R, names of the eye-witnesses were also mentioned therein. During trial, it was proved that the complainant refused to marry his daughter with the offender, upon which he nourished a grudge.
Later on Mst.Nusrat Ashfaq was married to Irshad Sharif deceased. On the fateful day the convict way laid and as the deceased came at the place of occurrence he committed his murder in a brutal manner. The occurrence was witnessed by Muhammad Ashfaq Tahir, Masood Ashfaq and Maqbool Hussain. Their presence at the place of occurrence was not doubtful. Being residents of the locality they were natural witnesses of the crime. They were examined by the prosecution.
Despite lengthy cross-examination the defense failed to obtain anything favorable. They successfully passed the test and narrated what they saw. Their deposition was confidence inspiring. The allegation of firing against the appellant was corroborated by post-mortem report which shows that the deceased died of the injury caused by .12-bore gun. It was also supported by recovery of weapon of offence at instance of the convict-appellant, the crime empties seized from the spot and confirmatory Forensic Science Experts's report. Though the witnesses were closely related to the deceased but there was nothing on record showing that they were inimical towards the convict or were interested in his conviction. The complainant had no reason to implicate the convict in a false case by leaving the real culprit. The ocular version was proved beyond doubt. The required standard of evidence for awarding the sentence of `Qisas' was available, thus the trial Court did not commit any error while passing the impugned judgment and the same being correct and in accordance with law warrants no erence, therefore, the appeal may be dismissed.
7.We have heard the learned counsel for the parties, A.A.G and gone through the record of the case with care.
8. Since the appeal and the reference arises out of the same case, therefore, these shall be disposed off through this common judgment.
9. The prosecution evidence was that father of the convict-appellant asked for the hands of complainant's daughter for his son, but he refused, upon which they nourished a grudge. Later on she was married to Irshad Sharif. The husband and wife often used to visit the house of the complainant. On 25.02.2000 they also came and stayed there. The victim was principal of Iqra Public School. On the following day he left for Thorar. Arshad Mehboob armed with .12-bore gun was waiting for him in the way. As the victim came across he fired but failed to hit him. He fired two more shots but could not succeed in achieving the target. The deceased tried to escape and ran towards the house of his father-in-law. The convict chased, fired and caused injury at the right side of his chest. The victim fell down and started bleeding. The occurrence was witnessed by Maqbool Hussain, Muhammad Ashfaq and Masood Ashfaq. In the meantime Razzak Razeeque, and Zahid Rafique also came there. The offender fled away after committing the crime. The deceased succumbed to the injury while on the way to hospital.
10. In support of the above mentioned story, the prosecution examined P.Ws Muhammad Ashfaq Tahir, Maqbool Hussain and Masood Ashfaq as the eye-witnesses. Zahid Rafique and Razzak Razeeque who saw the offenders running away from the spot after committing the offence were also examined. The post-mortem report, weapon of offence recovered at instance of the convict- appellant, three crime empties seized from the place of occurrence, a confirmatory Forensic Science Expert's report and blood stained clay seized from the spot were produced in support of the eye-witnesses account. The trial Court by putting reliance on the aforesaid evidence convicted and awarded the sentence of Qisas to the appellant.
11. Learned counsel for the convict-appellant emphasized that the motive was not proved as it was not supported by any of the witnesses except the complainant. It will not be out of place to mention here that during trial Muhammad Ashfaq Tahir categorically deposed that father of the convict-appellant came to him and asked for the hands of his daughter for his son but he refused.
This clearly shows that it was only in the knowledge of the complainant and the father of the convict, there was nothing on record indicating that the others were also aware of this fact. Besides the said witness successfully proved the claim and the defence failed to negate it, thus, no further evidence to prove the alleged motive was required.
12. It was contended that the first information report was lodged after a considerable delay and the time was consumed in concocting the false story. It may be stated here undoubtly the occurrence took place at 9.15, a.m. The deceased suffered fire arm injury at his chest. The blood was oozing from the wound. The complainant being his father-in-law was more concerned about his life because of which he alongwith others arranged to shift him to the hospital from the place of occurrence but unfortunately the victim died in the way. Thereafter, he came to the Police Station situated at a distance of one and half kilometer and reported the matter to the Police at 11.30,a.m, thus in the circumstances it cannot be said that the delay of two hours and 15 minutes was intentionally caused by him or the time was consumed in concocting a false story. Besides there was no evidence on record indicating that the complainant had any reason to falsely implicate the convict, therefore, the contention merits no consideration and it is hereby repelled.
13. The next point raised on behalf of the convict-appellant was that recovery of weapon of offence was doubtful and it was fabricated in order to strengthen the prosecution case. It was pointed out that as per record the weapon of offence was shown to have been seized on 28.02.2000 through recovery memo.. Exh.PO while after arrest the convict-appellant was produced before the Magistrate for remand on 29.02.2000 and it was requested that he was physically required for the recovery of weapon of offence. Thus, it was clear that weapon was not seized on 28.02.2000 and the recovery memo. was fake. The argument merits no consideration as the recovery memo.
Exh.PO was proved by the Investigating Officer and Nazakat Hussain attester. Mere facts that he was produced before Magistrate on 29.02.2000 and remand was sought for recovery of weapon of offence was not sufficient to discard the deposition of the above mentioned witnesses, particularly when a reasonable explanation that "it was done mistakenly" was given by the Investigating Officer.
Thus the seizing process of weapon of offence does not suffer from any infirmity. Besides it is settled law that where the deposition of the eye-witnesses rings true and the case against an accused stands proved beyond doubt, the recovery of weapon of offence hardly matters.
14. Another point raised by the learned counsel for the convict- appellant was that the prosecution witnesses were closely related to the deceased. They were partisan and were interested in conviction of the appellant. P.W Maqbool Hussain was a previous convict, thus his statement was not safe to be believed for recording conviction. No doubt in a case under Section 13/20/65 of the Arms Act registered against him, he was punished with fine Rs,500/- but since he was not the sole witness of the occurrence and had no enmity with the convict. The evidentiary value of his statement was only to the extent that it was a confirmatory narration to the ocular version given by P.Ws Muhammad Ashfaq Tahir and Masood Ashfaq, thus no illegality was committed by the Court below while taking his deposition into the consideration. So far as the question that the prosecution witnesses were closely related to the deceased is concerned. It has been held in a number of cases that mere relationship is no ground to discard the statement of a prosecution witness if it rings true. Reliance can be placed upon 1995 SCM R 900, wherein it was observed that:-- "the eye-witnesses though related are not inimical to the appellant. Mere relationship with the deceased would not discredit particularly as they have made consistent statement and have not shaken in cross-examination."
15. In the present case though the eye-witnesses were closely related to the deceased but they had no enmity with the convict appellant and also had no reason to rope him in a false case by leaving the real offender. During trial they proved the claim and stood at the test stone of the test of cross-examination.
16. It was evident from the record that the convict-appellant wished to marry daughter of the complainant. His father tried but it was refused upon which they nourished a grudge. Later on she was married to Irshad Sharif deceased. On the fateful day, when the victim was going to Thorar from the house of his father-in-law, he was attacked upon and done to death by the convict- appellant. The above mentioned facts were proved by the eye-witnesses beyond doubt. Their deposition was confidence inspiring. They gave the true account of the occurrence. No discrepancy or contradiction existed in their statements. It may also be added here that the place and time of occurrence were not disputed. Origin of fight and manner of occurrence were also proved. The incident took place during broad day light. Identification of the convict-appellant was not in doubt. Presence of the eye-witnesses at the spot was natural. They were residents of the locality. It was also established during trial and was confirmed by the statement of Razzak Razeeque and Zahid Rafique. Allegation of firing with .12-bore gun and causing death of the deceased was corroborated by the post-mortem report. It was further supported by the confirmatory Forensic Expert's report regarding the weapon of offence and the crime empties seized from the spot, thus there was no doubt that the offence was committed in the manner alleged by the prosecution.
In light of the facts listed above, we are of the opinion that the case against the convict-appellant was proved beyond doubt. The trial Court appreciated the evidence on record in a judicial manner and arrived at a correct decision. The impugned judgment being in accordance with law and facts of the case warrants no interference, therefore, the appeal merits no consideration and is hereby dismissed, resultantly the reference made by the trial Court for confirmation of the death sentence is accepted.