' 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, P.P.C.
' 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, P.P.C.
' 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..
' Succinctly, the facts as mentioned in. FA.R.. Exh.PF registered on complaint Exh.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 cot of Ghularn 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 along with the P. Ws. 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 section 302/149, P.P.C. 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 P.W.2, Rahim Bakhsh No.42/C PW-3, Mukhtar Ahmad ASI PW-4, Saeed Ahmad draftsman P.W.5, Muhammad Rafique No.280-C-II P.W.6 and Irshad Ali S.-I. P.W.7 are more or less formal witnesses. Ghulam Nabi P.W.8, Liaqat Ali P.W.9 are the eye-witnesses, Zulfiqar P.W.10 is witness for the recovery of blood-stained earth vide recovery memo Exh.PH empty rounds, magazine of pistol and live bullets and one lock of bicycle vide recovery Memo Exh.PI, one blood- stained Chadar vide recovery memo Exh.PE and for the recovery of rifle vide recovery memo Exh.PJ.
Ghulam Hussain S.-I. P.W.11 conducted the investigation of this case.
5 Dr. Riaz Hussain P.W.1 first medically examined Ghulam Qadir and on the same day he conducted the post mortem examination on his dada 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. Margins 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 Exh.PL and that of Serologist Exh.P.M., closed its evidence.
7. After closing of the prosecution evidence both the accused were examined under section 342, Cr.P.C The incriminating evidence produed 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 P.Ws. 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 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, Pakpattaon. 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 delibercttioa. P.Ws 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, .Bearing 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, P.P.C. 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 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 P.W.8 and Liaqat Ali P.W.9 regarding going to the Police Station 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 F.I.R. And introduced motive by P.W.9 has not been proved; that the learned trial Court has not believed the motive part subsequently introduced by Liaqat Ali P.W.9, therefore, case against the appellant has no been proved and he is entitled to acquittal.
11. On the other hand, learned D.P.-G. Assisted by the learned counsel or the complainant has contended that the appellant was the nominated accused of the promptly lodged F.I.R. With the specific role of firing at the deceased; that the medical evidence fully corroborates the ocular account of P.W.8 and P.W.9; that both the eye-witnesses have no enmity to falsely involve the appellant in this case and there evidence is confidence-inspiring and straightforward; that there are some minor discrepancies in their evidence which is immaterial as their evidence was recorded with the lapse 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 D.P.-G. 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 virus reported to the police by his brother Ghulam Nabi P.W.8 at about 2-45 a.m.
Ghulam Nabi complainant P.W.8 and Liaqat Ali P.W.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 P.W.8, who is real brother of deceased Ghulam Qadir and Liaqat P.W.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 can the ground of their close relationship with the deceased and being interested witnesses. Ghulam Nabi complainant P.W.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 P.W.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 was observed in the medical evidence. So the statements of both the P.Ws. 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 v. 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 "The statement of the witness on account of being interested witness can only he 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 eyewitnesses 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 P.W.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 P.Ws., which are natural and does not cast any adverse effect on their credibility. The prosecution has fully established the guilt it 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), P.P.C. 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 F.I.R. And it was introduced later on in the statement of Liaqat Ali P.W.9, which could not be substantiated. Respondent No.1 Khadim Hussain fired a single shot and did not repeat fire at the deceased. Furthermore, r rifle 7-MM was allegedly recovered on the pointation of respondent No.1 but the acme was not sent to the ballistic expert for opinion, therefore, the recovery of weapon of offence remained inconsequential.
18. It is well-recognized principle of low that the accused is entitled for benefit of doubt as extenuating circumstances while entitled the question of sentence. Reliance can be placed on "Mir Muhammad alias Mirov. The State" (2009 SCM R 1188).
19. In case titled "Ansar Ahmad Khan Barki v. 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 Shararat Ali 'Khan v. The State (2010 SCM R 1205), where Hon'ble Supreme Court of Pakistan observed as under:-- "In Muhammad Riaz and another v. The State (2007 SCMR 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 milierever the facts and circumstances warrant mitigation of sentence, becciuse no hard and fast rule can be applied in each and every case. Reference in the contexts may also be made to Iftikhar Ahnzad Khan v. Asghar Khan and another (2009 SCMR. 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.
Appeal-.