Syed Iftikhar Hussain Shah, J.--This judgment will dispose of Criminal Appeal No, 53 of 2006 filed by Khadim Hussain convict/appellant, who was convicted and sentenced by the learned Additional Sessions Judge, Bahawalnagar vide judgment dated 21.2.2006 as under:-- Under Section 302-b, PPC Imprisonment for life and to pay compensation of RS. 100,000/-payable to the legal heirs of the deceased in default whereof to further undergo simple imprisonment for six months.
Under Section 148, PPC Rigorous imprisonment for two years with the fine of Rs,20,000/- and in default of payment of fine to further undergo simple imprisonment for three months.
Criminal Revision No, 69 of 2006 filed by the complainant Ghulam Nabi under Section 439, Cr.P.C. for the enhancement of sentence of imprisonment for life to death to Khadim Hussain respondent No,1.
2. Succinctly, the facts as mentioned in FIR Ex.PF registered on complaint Ex.PG of Ghulam Nabi son of Muhammad Zaman are that in the night between 16/17.7.2005, he was sleeping along with his family in his house while his brother Ghulam Qadir (deceased) was sleeping along with his family in his house while Liaqat Ali was sleeping outside the Haveli for guard of cattle. On hearing noise of his brother Ghulam Qadir at about 1:30 midnight, he and his brother Ghulam Rasool, son Waris Ali and servant Liaqat Ali also reached there. They saw in the light of bulb that eight accused persons were standing near the cost of Ghulam Qadir and they had caught hold of Ghulam Qadir. In their seeing one of the accused was identified in the light of the bulb as Khadim Hussain, who was armed with rifle, who fired at Ghulam Qadir, which hit on his left thigh. The other accused gave butt blow on the head of Ghulam Qadir, who fell down in injured condition. When complainant alongwith the PWs tried to intervene, all the accused persons fired at them but they were luckily saved. All the accused persons succeeded to run away after scaling over the wall. They attended Ghulam Qadir, who was severely injured was unconscious. They also found .222-rilfe of Ghulam Qadir missing. The injured was taken to Civil Hospital Minchinabad where he succumbed to the injuries suffered by him.
3. After the submission of challan, accused Khadim Hussain was charged under Sections 302/149, PPC to which he pleaded not guilty and claimed trial. The prosecution, in order to substantiate the charge, examined as many as 11-witnesses.
4. Muhammad Iqbal No,924/C PW-2, Rahim Bakhsh No,42/C PW-3, Mukhtar Ahmad ASI PW-4, Saeed Ahmad draftsman PW-5, Muhammad Rafique No,280-C-II PW-6 and Irshad Ali SI PW-7 are more or less formal witnesses. Ghulam Nabi PW-8, Liaqat Ali PW-9 are the eye-witnesses, Zulfiqar PW-10 is witness for the recovery of blood stained earth vide recovery memo. Ex.PH empty rounds, magazine of pistol and live bullets and one lock of bicycle vide recovery memo. Ex.PI, one blood stained Chadar vide recovery memo. Ex.PE and for the recovery of rifle vide recovery memo. Ex.PJ.
Ghulam Hussain SI PW-11 conducted the investigation of this case.
5. Dr. Riaz Hussain PW-1 first medically examined Ghulam Qadir and on the some day he conducted the post mortem examination on his dead body and observed following injuries:-- "INJURIES No,1 A lacerated wound 3 cm x 1 cm on inner aspect of left thigh. Margins were everted. (Exit wound).
No,2 A lacerated wound 1 cm x 1 cm on lower margin of left buttock. Margines were inverted.
No,3 A lacerated wound of 3 cm x 1 cm on the top of skull. Underlying bone was exposed."
OPINION The cause of death was haemorrhage and shock, caused by firearm, which damaged the major vessels of lower limb of left side, which was sufficient to cause death in an ordinary course of life.
The duration between injuries and death was within 12 hours and between death and post mortem examination was within 12 hours."
6. The prosecution after tendering in evidence the report of Chemical Examiner Ex.PL and that of Serologist Ex.PM, closed its evidence.
7. After closing of the prosecution evidence both the accused were examined under Section 342, Cr.P.C. The incriminating evidence produced by the prosecution was put to him, which he termed as incorrect and to question as to why this case was registered and why the PWs have deposed against him, he deposed as under:-- "I have been falsely involved in this case by the complainant party with some ulterior motive. I own three acres of land. Prior to occurrence I used to live in Mauza Qadirpur Balochan. The complainant party wanted to get my land but I refused. I gave my land on lease one year prior to the occurrence and I shifted my residence to Kot Bakhsha Tehsil Arifwala District Pakpattan. I have no concern whatsoever with the occurrence. In fact it was a blind occurrence. During investigation the complainant nominated other persons as his accused who are members of Qabza group, As it was blind occurrence, so the complainant party involved me in this case in order to get my land with the connivance of the I.O. who registered the case after due consultation and deliberation. PWs have falsely deposed against me."
8. The appellant/accused opted not to appear on oath as witness under Section 340(2), Cr.P.C.
9. Learned trial Court, after hearing the learned counsel for the parties and going through the evidence on record, convicted the imprisonment for life and to pay compensation of Rs,100,000/- to be paid to the legal heirs of deceased Ghulam Qadir in default whereof to further undergo simple imprisonment for six months, He was also convicted and sentenced under Section 148, PPC to rigorous imprisonment for two years with the fine of Rs,20,000/- in default whereof to further undergo simple imprisonment for three months.
10. Learned counsel for the appellant has contended that the recovery of rifle .7-MM shown against the appellant is inconsequential as regarding empty rounds recovered from the place of occurrence, there is no report of Forensic Science Laboratory; that there are contradictions in the statements of Ghulam Nabi PW-8 and Liaqat Ali PW-9 regarding going to the Police Station and to the hospital; that there are also contradictions regarding the ownership of car in which the injured was taken to hospital; that the motive has not been mentioned in the FIR and subsequently introduced motive by PW-9 has not been proved; that the learned trial Court has not believed the motive part subsequently introduced by Liaqat Ali PW-9, therefore, case against the appellant has not been proved and he is entitled to acquittal.
11. On the other hand, learned DPG assisted by the learned counsel for the complainant has contended that the appellant was the nominated accused of the promptly lodged FIR with the specific role of firing at the deceased; that the medical evidence fully corroborates the ocular account of PW-8 and PW-9; that both the eye-witnesses have no enmity to falsely involve the appellant in this, case and there evidence is confidence inspiring and straight forward; that there are some minor discrepancies in their evidence which is immaterial as their evidence was recorded with the laps of some time.
12. While arguing criminal revision, learned counsel for the petitioner contended that it is proved beyond any shadow of doubt that this is the case of capital sentence and the learned trial Court has wrongly extended the benefit of extenuating circumstances by awarding imprisonment for life to the respondent without any basis.
13. We have heard the learned counsel for the appellant, learned DPG for the State assisted by the learned counsel for the complainant and have also gone through the record.
14. The occurrence of this case took place at about 1:30 midnight in the area of Chak No,25 within the jurisdiction of Police Station Minchinabad District Bahawalnagar inside the house of the deceased and it was reported to the police by his brother Ghulam Nabi PW-8 at about 2:45 a.m.
Ghulam Nabi complainant PW-8 and Liaqat Ali PW 9 witnessed the occurrence. Ghulam Qadir deceased was medically examined on the same night at about 2:30 a.m. whereas the post mortem on the dead body of the deceased was conducted at 9:30 a.m. The distance between the place of occurrence and the police station is about 8-k.m. In view of the prompt reporting of the matter to the police, we are of the view that the complainant had no time for consultation or deliberation in this case. The ocular account was . furnished by complainant Ghulam Nabi PW-8, who is real brother of deceased Ghulam Qadir and Liaqat Ali PW-9, who was the servant of the complainant party and was allegedly sleeping outside the Haveli in the cattle-shed.
15. Learned defence counsel has assailed the testimony of these witnesses on the ground of their close relationship with the deceased and being interested witnesses. Ghulam Nabi complainant PW-8 is the real brother of the deceased and is admittedly residing in the adjacent house and there is no denial of the fact that Liaqat Ali PW-9 was their servant and their presence at the place of occurrence at the time of occurrence is neither improbable nor can be doubted and only due to mere relationship of the witnesses with the deceased, their evidence cannot be discarded in the absence of any inconsistency or inherent infirmity in their statements especially when no motive for false implication has been alleged against them. Both the eye-witnesses have categorically stated that they saw and fully recognized Khadim Hussain appellant firing at Ghulam Qadir deceased. They attributed only one fire shot to him and only one fire arm entry wound on the dead body of the deceased B was observed in the medical evidence. So the statements of both the PWs is in line with the medical evidence. It is well settled by now that mere relationship of the witnesses is not a ground itself to discredit their testimony. In this respect, we respectfully refer the case of "Khizer Hayat us. The State (2011 SCM R 429)" wherein Hon'ble Supreme Court observed as under:-- "The statement of the 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. Essentially this proposition has been considered in number of cases and this Court had declined to give weight to it, in 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 corroboration and even uncorroborated version can be relied upon if supported by the surrounding circumstances."
16. We have further observed that even in cross-examination, both the eye-witnesses remained consistent on all material aspects of the prosecution case and their evidence, is substantially corroborated by the medical evidence qua the appellants and is trustworthy one and we can safely rely on the same. The medical evidence of PW-1 Dr. Riaz Hussain fully supports the ocular account and there is no material contradiction qua the role of the appellant in any manner whatsoever. There are, minor contradictions in the statements of PWs, which are natural and does not cast any adverse effect on their credibility. The prosecution has fully established the guilt of the appellant beyond any shadow of doubt. The findings of the learned trial Court are based on cogent reasons. The appellant has rightly been convicted under Section 302(b), PPC. The conviction and sentence awarded by the learned trial Court is hereby maintained and the appeal of appellant Khadim Hussain stands dismissed.
17. So far as criminal revision regarding enhancement of sentence is concerned, we have observed that there are certain extenuating circumstances in this case. We have observed that no motive was alleged in the FIR and it was introduced later on in the statement of Liaqat Ali PW-9, which could not be substantiated. Respondent No,1 Khadim Hussain fired a single shot and did not repeat fire at the deceased. Furthermore, rifle .7-MM was allegedly recovered on the pointation of Respondent No, 1 but the same was not sent to the ballistic expert for opinion, therefore, the recovery of weapon of offence remained inconsequential.
18. It is well recognized principal by law that the accused is entitled for benefit of doubt as extenuating circumstances while deciding the question of sentence. Reliance can be placed on 'Mir Muhammad @ Miro vs. The State (2009 SCM R 1188).
19. In case titled 'Ansar Ahmad Khan Barki vs. The State and another. (1993 SCM R 1660)", Hon'ble Supreme Court of Pakistan has held that the prosecution is bound by law to exclude all the possible extenuating circumstances in order to bring the charge home to the accused for the award of normal penalty of death. We have also fortified our view qua the quantum of sentence by case reported as Sharafat Ali Khan vs: The State (2010 SCM R 1205), where Hon'ble Supreme Court of Pakistan observed as under-- "In Muhammad Riaz and another vs. The State {2007 SCM R 1413), while considering the penalty for an act of commission of qatl-e-amd it was observed No doubt, normal penalty for an act of commission of qatl-e-amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case. Reference in the context may also be made to Iftikhar Ahmad Khan vs. Asghar Khan and another (2009 SCM R 502).
20. In view of above, we are of the considered view that the learned trial Court has rightly withheld the penalty of death and has awarded the life imprisonment and no cogent reason or legal justification exist for the enhancement of the punishment. Therefore, the revision petition is without any merits, the same stands dismissed.