Iftikhar Hussain Butt, J.--As both the appeal and reference arise out of the same incident and judgment; therefore, these are consolidated and being disposed off by this single judgment.
The necessary facts forming the background of instant appeal and reference are that Ghulam Hussain, complainant, filed a written F.I.R at Police Station Palandri on 2nd January 2001 at 8:30pm alleging therein that in the light of domestic property partition, his brother Karamat Hussain, accused, resides in his separate land where a thoroughfare passes through from his land and goes towards water spring. Three days prior to the occurrence, complainant's bulls while going towards water spring entered the wheat fields of Karamat Hussain upon which he hurled abuses and became animus. Today on 2nd January 2004 at 4:30pm complainant's son Maqsood Hussain took his bulls to the water spring and when he was coming back while passing through the land of Karamat Hussain, he fired shots of .12-bore gun at him with the intention to do away with his life, which did not hit him because he fled away. Thereupon, Karamat Hussain threw away .12-bore gun, took a .12-bore Carbine, chased his son and fired a shot of .12- bore Carbine with the intention to kill Muhammad Maqsood, which hit him at his chest, on left side of belly, near navel and on left arm.
On account of which, he fell down and died spontaneously. Besides complainant, the occurrence was witnessed by Muhammad Islaq, Muhammad Afzal and Muhammad Rasheed.
On this report, a case under Section 302, PC was registered by Muhammad Munaf SHO Police (P.W.14). He visited the spot where the dead body of Muhammad Maqsood, deceased, was lying, prepared the inquest report Exh.PG and thereof, sent the dead body to mortuary for autopsy. He took into possession the bloodstained clothing of the deceased vide recovery memo. Exh.PB in presence of Muhammad Afzal (P.W.2) and Muhammad Is'haq (P.W.3). He further recovered a .12- bore gun vide recovery memo. Exh.PD in presence of Jamroz Khan (P. W. 7) and Muhammad Jahangir (P.W.8). He also recovered a .12-bore carbine vide recovery memo. Exh.PC in presence of Pervaiz Khan (P.W.5) and Muhammad Taj (P.W.6). He prepared site plan Exh.PJ. He also got prepared site plan Exh.PE from Nazik Hussain Patwari (P.W.9) on 4.1.2001.
On 3.1.2001, Dr. Aftab Hussain CMO Palandn (P W.11) conducted the postmortem of the dead body of Muhammad Maqsood Khan. He found the following injuries on his dead body:-- Wound. No, I: A circular wound, 0.5 cm in diameter , with circular abraded collar , with inverted margins with no burning, blackening or tattooing, situated on the front of left side of the chest, 0.5cm below the medial 1/3rd of the (Lf) clavicle and 0.4cm above and medial to left nipple. (Entrance wound).
Wound No, II: A circular wound 0.5cm in diameter, with oval abraded collar, with inverted margins with no burning, blackening or tattooing around the wound situated on the front left side abdomen, 09cm below the left costal margin and four cm medial to left midclavicular line, 08cm lateral and 05cm above the umbilicus. (Entrance wound).
Wound No, III: An oval shape wound, making a linear furrowing of skin measuring 03cm x 0.8cm, situated on the left arm, out the junction of upper 1/3rd and middle 1/3rd lateral aspect obliquely placed.
No penetration to deeper tissue.
Wound No, IV : An oval shape wound, making a linear furrowing of skin, measuring 3.2cm x 01cm, situated on the ventral surface left forearm. No penetration to deeper tissue.
Wound No, V: A circular shape wound measuring 0.5cm in diameter, with circular abraded collar, with inverted margins, no blackening, burning or tattooing around the wound, situated in the left inguinal region, 02cm below the left anterior superior iliac spine.
(Distance between wound No, I and V is 19 inches).
The reports of Chemical Examiner Exh.PM and Forensic Science Laboratory Exh.PN were also produced.
After completion of investigation, a challan under Section 173, Cr.P.0 was presented, before trial Court. The charge was framed against the appellant but he denied the guilt and claimed the trial.
In order to prove its case, the prosecution produce Afzal Khan (P.W.2), Muhammad Is'haq (P.W.3), Muhammad Rasheed (P.W.4), Perva.z Khan (P.W.5), Muhammad Taj (P.W.6), Jamroz Khan (P.W.7), Muhammad Jhangir (P.W.8), Nazik Hussain (P.W.9), Muhammad Khurshid Head Constable Police (P.W.10), Dr. Aftab Hussain (P.W.11), Muhammad Saleem Durani SI (P.W.12) and Muhammad Manaf SI/SHO (P.W. 14), whereas Ghulam Hussain (P.W.1) died during the proceedings and Sardar Nisar Khan DSP (P.W.13) was abandoned by the prosecution.
Amer recording the prosecution evidence, the appellant was examined under Section 342, Cr.P.C.
The prosecution evidence and other incriminating material was put to him for his explanation but he refuted the prosecution evidence and claimed to be innocent. He also got his statement recorded as a witness.
The purgation of the prosecution witnesses was also conducted who were found `Adil.
After hearing the learned Advocates for the parties, the convict-appellant was convicted and sentenced to death under Section 302(b), APC by District Criminal Court Sudhnoti-Palandri vide its judgment dated 31.3.2004. The aforesaid judgment has been assailed before this Court by convict- appellant whereas a reference has also been made by District Criminal Court Sudhnoti-Palandri for confirmation of death sentence, which are the subject matter of this judgment.
Sardar Abdul Hameed Khan, the learned Counsel for the appellant argued that a false case has been registered against the accused-appellant and it is a case of no evidence because none of the eyewitnesses was present at the spot. The learned Counsel further contended that the complainant, his sons and son-in-law were cited as eye-witnesses; therefore, the evidence of related witnesses cannot be taken into consideration. The learned Counsel agitated that at the time of occurrence, the accused-appellant was not present at the spot and the deceased was done to death by the complainant or his companions. The learned Counsel pointed out that the statement of Ghulam Hussain, complainant, was not recorded because of his death and FIR was got exhibited by Muhammad Afzal, his son; therefore, F.I.R does not support the prosecution story.
The learned Counsel further maintained that in the site plan the place wherefrom Muhammad Rasheed (P.W,4) witnessed the occurrence was not specified; therefore, his presence at the spot has become doubtful and suspicious. Similarly, Muhammad Rasheed has not stated the presence of the Afzal Khan (P.W. 2) and Muhammad Ishaq (P.W.3) during his deposition; thus, the prosecution story is not reliable because according to Muhammad Rasheed, the occurrence was witnessed by him and Ghulam Hussain deceased only, whereas the name of Muhammad Rasheed P.W. does not find place in the site plan. The learned Counsel submitted that according to site plan both brothers of the deceased Muhammad Afzal Khan (P.W. 2) and Muhammad Ishaq (P.W. 3) were shown, standing about 34/35 and 50/55 feet away from the place of occurrence, witnessing the occurrence while he was shot dead but they did not sustain any injury. The learned Counsel zealously argued that during the statement of the accused recorded under Section 340 (2), Cr.P.C, he testified that he was not present at the place of occurrence but he was not cross-examined on the aforesaid point; therefore, it has been proved on the record that the prosecution has admitted his absence at the time of occurrence. The learned Counsel also criticized the evidence of recovery and submitted that no crime empty of .12-bore gun was taken into possession and no empty was found in the gun at the time of recovery, which was allegedly recovered from the house of the accused. Similarly, the carbine was taken into possession from' the house of the sister of accused; therefore, the evidence of recovery cannot be relied upon. The learned Counsel finally submitted that the prosecution has miserably failed to prove its case against the appellant; therefore, he may be acquitted of the charge, otherwise lesser sentence may be awarded to him. In support of his contentions, the learned Counsel cited the following authority:-
1. 2002 P.Cr.LJ (F.S.C) 1183; Sardar Akhter Hussain, the learned Counsel for the complainant controverted the arguments raised by the learned Counsel for the convict-appellant and submitted that the F.I.R was promptly lodged and the place of occurrence, the manner of occurrence, the names of the eye-witnesses, seat of injury and the use of deadly weapon have been recorded therein. The learned Counsel further contended that the F.I.R was proved not only by the eye-witnesses but also by I.O. The learned Counsel also submitted that the P.W.s are not only related-to the deceased but are also closely related to the accused-appellant because the wife of the accused is first cousin of P.Ws Muhammad Afzal and Muhammad lshaq, even otherwise the evidence of the related witnesses cannot be discarded on the basis of relationship. The learned Counsel pointed out that the defense has taken three inconsistent pleas in their defense. First plea of false implication, second plea of substitution and third plea of alibi, but none was proved on the record. The learned Counsel agitated that it is admitted by the accused that he had seen the dead body of the deceased. He also admitted the presence of Muhammad Rasheed (P.W.4) at the place of occurrence during his statement, therefore, it is not a case of false implication and the question of substitution also cannot arise. The learned Counsel laid great stress upon the point, that site-plan is not substantial piece of evidence, otherwise it was not confronted to Muhammad Rasheed (P.W.4). The learned Counsel vigorously argued that during the cross-examination and the suggestions put to eye- witnesses and I.O., the time of occurrence, the place of occurrence, the usage of deadly weapons, the death of the deceased, the presence of accused and the eye-witnesses have been admitted; therefore, the prosecution has proved its case beyond any shadow of reasonable doubt and the judgment of the trial Court has been recorded in a legal fashion, which does not warranty any interference by this Court. The learned Counsel for the complainant cited the following case law in support of his arguments:-
1. 2003 P.Cr.L.J 1420;
2. PLJ 2005 (Sh.0 AJK) 23;
3. 1998 SCR 47;
4. 1999 SCM R 2722 & 1469;
5. 2004 MLD (Karachi) 1276;
6. 1998 P.Cr.L.J (Lahore) 247;
7. 2002 P.Cr.L.J 773;
8. 2002 P.Cr.L.J (Lahore) 1965;
9. 2009 P.Cr.L.J (Lahore) 1563; Raja Ejaz Khan, the learned Assistant Advocate General appearing on behalf of the State fully owned and supported the arguments raised by the learned counsel for the complainant.
We have given our due consideration to the arguments addressed at Bar and examined the record with care alongwith case law cited.
The case of prosecution mainly rests upon the ocular version, medical evidence and recoveries made by I.O. In the instant case, F.I.R Exh.P1 was promptly lodged. The accused was nominated therein. The place of occurrence the manner of occurrence, the names of the eyewitnesses, seat of injuries and use of lethal weapons have been recorded in detail. The F.I.R was proved not only by both the eye-witnesses Muhammad Afzal Khan, (P.W.2) and Muhammad Ishaq (P.W.3) but also by I.O. As the complainant died during the trial therefore, his evidence could not be recorded, thus F.I.R in circumstances of the case was brought on record in a law-full manner. (2003 P.Cr.L.J 1420 Lahore) The prosecution produced (3) eye-witnesses in support of its version.
We have carefully taken into consideration the argument of the learned counsel for the defense that the name of the Muhammad Rasheed (P.W.4) does not find place in site-plan Exh.PE. Further more, Muhammad Rasheed (P.W.4) during his statement before the Court below did not depose the presence of Muhammad Afzal Khan and Muhammad Ishaq the eye-witnesses, therefore, according to the learned counsel, his presence at the spot is doubtful. It may be mentioned here that the site-plan is not substantive piece of evidence. It may be an comission on the part of I.O. It relates only to the place of occurrence and particularly in the present case, it looses its importance because the convict-appellant has admitted in his statement on oath recorded under Section 340(2), Cr.P.0 that soon after the occurrence, he reached at the spot and found Muhammad (P.W.
4) over there. The statement of the appellant reads as under-- {{URUD TEXT}} Our aforesaid view finds support from a case reported as Misroo V. The State (2004 M LD 1276) wherein it has been held that "site-plan is not substantive piece of evidence and cannot be used to discard the evidence of a witness unless he is confronted with the site-plan."
It has been further observed in case titled Muhammad Yar Vs. The State (1998 P.Cr.L.J 247 Lahore) "that the omission to indicate the position of the eye-witnesses in the site-plan could not lead to the inference of such witness being not present particularly when the presence of such witness at the spot at the time of occurrence is natural in circumstances of the case."
If for the sake of the arguments, the statement of Muhammad Rasheed (P.W.4) is ruled out of the consideration even then the statement of both eye-witnesses Muhammad Afzal Khan (P.W.2) and Muhammad Ishaq (P.W.3) is cogent, consistent and confidence inspiring.
Afzal Khan (P.W.2) clearly stated that when the deceased entered in the land of the convict- appellant, the appellant hurled abuses and fired two shots with .12-bore gun but it did not hit the deceased because he fled away but the appellant threw away the rifle and took into his hand a Carbine, went close to the deceased where he alongwith his brother Muhammad Ishaq, the deceased-father Ghulam Hussain and the deceased were present. He hurled abuses but deceased Maqsood asked him not to abuse instead fire a shot upon him, whereupon the appellant fired a shot which hit Maqsood deceased on his left side of chest, left arm and near navel who fell down and died spontaneously.
It is worth mentioning here that in the cross-examination Muhammad Afzal Khan (P.W.2) deposed that on hearing a sound of firing the above mentioned witnesses and Muhammad Rasheed reached at the spot.
Muhammad Ishaq (P.W.3) fully supported the evidence of Muhammad Afzal Khan who testified that on 2.1.2002 when Maqsood deceased entered in the land of the appellant, he fired shots with .12- bore gun and threw the gun and took a Carbine went close to the deceased, started abusing him whereupon his father requested him not to fire upon his sons, but Maqsood deceased asked the accused not to abuse better to fire a shot, thereupon the appellant fired a shot with .12-bore Carbine which hit the deceased on his chest, left arm and near navel who fell down and died instantly. He further stated that the occurrence was witnessed by him, his father Ghulam Hussain, his brother Muhammad Afzal and Rasheed P.Ws. In spite of lengthy cross-examination, the defense failed to shatter the evidence of both the eyewitnesses rather in the light of suggestions put to Muhammad Ishaq (P.W.3), the place of occurrence, the firing shots with deadly weapon and the death of the deceased by firing shots, the presence of the accused, the presence of Ghulam Hussain, the deceased complainant and Muhammad Afzal (P.W. 2) have been admitted by the defence. The above mentioned suggestions were pub in the following Manner:-- {{URUD TEXT}} Similarly, the same type of suggestions were put to Muhammad Rasheed Khan (P.W.4) which also proves that defense admits the presence of complainant party, the presence of Maqsood deceased, his death by firing a shot with a lethal weapon and the presence of the accused, at the time of occurrence.
The perusal of the above mentioned statements of the eye-witnesses when read with suggestions put by the defense reveal that ocular version is clear, cogent, reliable and trust-worthy. Thus, it has been proved on the record that Muhammad Maqsood was done to death by the firing of Karamat Hussain appellant who hit the deceased by a .12-bore Carbine and the deceased after sustaining injuries fell down and died spontaneously.
The learned counsel zealously argued that the eye-witnesses Muhammad Afzal and Muhammad Ishaq are real brothers of the deceased and sons of the deceased-complainant whereas Muhammad Rasheed is their brother-in-law therefore, their evidence could not be taken into consideration. It is by now settled principle of law that the evidence of related witnesses cannot be ignored on the ground of relationship until and unless the eye-witnesses are found animus or hostile to the accused to falsely implicate or substitute him in a murder case in place of real culprit.
The prosecution witnesses had no grudge grouse, malice or spite against accused persons and they stated all material facts honestly, plainly and with exactitude. The small discrepancies or omissions appearing in their statements are not sufficient to brush aside their solid and cogent deposition, especially when their presence at the spot was natural. A host of case law can be cited in support of the above mentioned principle but we choose to refer the following cases only:--
1. 2006 SCR 365.
2. 2007 SCR 39.
3. 2009 SCR 71.
We do not find any substance in this argument of the learned counsel for the defense that the convict-appellant has taken plea of alibi during the statement recorded under Section 340(b), Cr.P.0 but was not cross-examined on the aforesaid point therefore, it has been proved on the record that he was not present at the time of occurrence. Suffice to note, as recorded earlier, the convict appellant has admitted his presence at the spot alongwith the presence of complainant and Muhammad Rasheed (P.W.4) during his statement mentioned above, therefore, the arguments being mis-conceived is hereby repelled. The plea of alibi, as such, has not been established and that has rightly been discarded by the trial Court.
In the instant case beside ocular version, sufficient and strong corroboratory evidence has been produced by the prosecution. Before discussing the corroborative evidence in detail it will be pertinent to note that conviction can be recorded on the deposition of eye-witnesses only provided it is worthy of credence but the Courts look for the corroboration as a rule of caution to exclude the involvement of an innocent person. In such state of affairs the corroboratory evidence can be produced by any circumstance which satisfies the conscious of the Court that the witness is reliable and truthful person. (2000 SCR 123), (2009 SCR 71).
In the present case Dr. Aftab Hussain (P.W.11) testified the postmortem report Exh.PF and found the bullet injuries exactly on the same part of the body of the deceased at which the eye-witnesses stated. According to him injury of the shot gun is cause of death of the deceased who died less then 5 minutes of the injuries. In this manner, the ocular version is fully supported by the medical evidence. Although the recovery of .12-bore rifle could not be proved however, the recovery of a .12- bore Carbine on the pointation of the appellant alongwith an empty has been duly proved by Parvez Khan (P.W.5), Muhammad Taj (P.W.6) and I.O. In this regard, a suggestion was put to Parvez Khan (P.W.5) in the following manner:-- {{URUD TEXT}} The perusal of the above suggestion shows that the recovery of weapon of offence is admitted to the defence.
The report of Forensic Science Laboratory Exh.PN confirms that the crime empty was fired from .12- bore Carbine which was taken into possession on the pointation of the appellant. Similarly, the report of Chemical Examiner Exh.PM also confirms that the clothing of the deceased were found stained with, blood, the inquest report Exh.PG, the recovery of a bottle P-7, having two pellets, which were extracted from the body of the deceased during postmortem are also in nature of supportive evidence.
The contention of the learned counsel for the appellant is devoid of any force that the recovery evidence is not trustworthy. It may be mentioned here that the recovery of Carbine along-with pallets extracted from the body of the deceased during postmortem have been fully proved by evidence of Muhammad Taj (P.W.6), Muhammad Jahangir (P.W.8), Dr. Aftab (P.W.11) and Muhammad Munaf, I.O. (P W.14), thus, the recovery of articles has been fully corroborated by P.Ws mentioned above.
In view of the above stated corroboratory and confirmatory evidence we are satisfied that the ocular version is clear, convincing confidence, inspiring and trust-worthy. On this account, it is held that the prosecution has successfully brought home guilt to the appellant by producing eye- witnesses who are wholly reliable, the recovery of weapon of offence from the appellant at the time of his arrest, the empties, the reports of experts and the medical evidence.
The above mentioned evidence is free from all sought of doubt, suspicion and pollution. The normal sentence of murder is death as held in Muhammad Ramzan' s case 1998 SCR 47, Nom- Muhammad's case 1999 SCM R 2722 and Waris Ali alias Dulli and other's case 1999 SCMR 1479. No extenuating circumstances are available therefore, we are satisfied that the sentence awarded by the trial Court does not need any indulgence by this Court.
For the reasons mentioned above, the appeal is dismissed being merit less. Death sentence awarded to the appellant is confirmed and murder reference is answered in affirmative. A copy of the judgment shall be annexed with the other file.